DOCKET NO. A-1829-14T3
Eldridge Hawkins, LLC, attorneys for appellant (Cecile Portilla, on the brief). Donato J. Battista, Hudson County Counsel, attorney for respondents (Michael L. Dermody, First Assistant County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Count of New Jersey, Law Division, Hudson County, Docket No. L-642-13. Eldridge Hawkins, LLC, attorneys for appellant (Cecile Portilla, on the brief). Donato J. Battista, Hudson County Counsel, attorney for respondents (Michael L. Dermody, First Assistant County Counsel, on the brief). PER CURIAM
Plaintiff Angel Luis Cruz appeals from the entry of summary judgment dismissing his three-count complaint against defendants County of Hudson, Hudson County Sheriff's Office and Frank Schillari, alleging violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and Articles I and VII of the New Jersey Constitution; breach of implied contract and deprivation of his civil rights stemming from his 2012 reassignment within the Sheriff's Office. We affirm.
We present the facts in the light most favorable to plaintiff and give him the benefit of all legitimate inferences in support of his claim. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff was hired as a sheriff's officer in January 2001, spending nine months in the detective bureau. He was thereafter assigned to the patrol division where he remained for seven years. After Sheriff Juan Perez assumed office in 2008, plaintiff asked to be transferred again to the detective bureau. A chief in Perez's administration told plaintiff to submit his request to Perez, who might consider it. Sheriff Perez transferred plaintiff to the detective bureau in June 2008.
In January 2011, Frank Schillari became Sheriff, having defeated Perez in the 2010 election. Over a year later, in February 2012, plaintiff was called into Captain William Joy's office by Sergeant John Karras. Chief Warrant Officer Oliver King was also present. Captain Joy said he had just received an order from Undersheriff Conti transferring plaintiff to the court bureau. The captain told plaintiff the decision had come "from the Sheriff's Office" and that neither Joy, Karras nor Oliver had anything to do with it. Plaintiff asked what he had "done wrong" to be transferred and have his detective shield taken away from him. Plaintiff claims Captain Joy responded by saying, "You're one of my best guys, but these things happen. They have happened to all of us in this room. Remember, we were moved around during the last [Perez] administration."
When plaintiff asked, through his union, for an explanation from Sheriff Schillari, he received a response referring him to the parties' labor agreement, which grants the Sheriff the unfettered discretion to assign officers to the detective assignment or to remove them from the assignment.
Plaintiff sued, claiming his transfer was a demotion that deprived him of a $1300 detective stipend and an opportunity for significant overtime, resulting in him having to sell his boat and his race car. He alleged Sheriff Schillari transferred him out of the detective bureau in retaliation for plaintiff's support of Perez in his election campaign against Schillari and for voicing his opinion at a union meeting against Schillari's hiring of investigators in the Sheriff's Office. Plaintiff also claimed his transfer was motivated by his being Hispanic and constituted age discrimination as well.
At the close of discovery, defendants moved for summary judgment dismissing the complaint. They relied on plaintiff's deposition in which he conceded the Sheriff "can pretty much assign anyone where he chooses" and that sheriff's officers have no entitlement to overtime. Plaintiff also testified at deposition that prior to the transfer, his functions in the detective bureau had not changed after Schillari assumed office in 2011; he retained the same powers, his shift stayed the same and he earned overtime every pay period.
Although plaintiff claimed in his deposition that "[i]t was known that several officers including myself were in support of Juan Perez," and Schillari knew that, he admitted Schillari never told him that or said anything to allow plaintiff to infer that was the reason for his transfer. The only conversation plaintiff could recall having with Schillari was one in the run up to the 2010 election when plaintiff asked candidate Schillari whether he had received plaintiff's check for a ticket to a Schillari fundraiser. Plaintiff testified Schillari said yes and thanked him.
Asked the basis for his belief Schillari knew about plaintiff's support for Perez, plaintiff testified that his supervisors in the detective bureau, Captain Joy, Sergeant Karras and Chief Warrant Officer King, all knew plaintiff supported Perez. Plaintiff also testified, however, that his supervisors thought highly of his work, were sorry to see him transferred, and all claimed to have no idea as to why the transfer was made. Plaintiff further testified no one ever told him that those officers told Schillari that plaintiff supported Perez or ever said anything that would allow plaintiff to infer they had done so. Plaintiff also never saw anything in writing telling Schillari plaintiff supported Perez. At the same deposition, he claimed he could not recall how many times in 2010 he expressed support for Perez over Schillari or who he might have told.
Plaintiff also claimed his opposition to Sheriff Schillari's hiring of "politically connected" investigators not from the civil service list, "may be one of the reasons why [he] was transferred and demoted." Although plaintiff claimed he objected to those hires at numerous union meetings, the only meeting date he provided in the record was after his transfer. Plaintiff testified at his deposition that he was never told or had any knowledge otherwise that Sheriff Schillari was informed of his opposition to those hires.
Moreover, plaintiff testified at deposition that the "first line campaign supporters for Juan Perez," Juan Mendoza, plaintiff's former partner in the detective bureau, and Louis Valentin, both Hispanic, were not demoted or transferred out of the detective bureau after Schillari assumed office. Plaintiff claimed "they wouldn't touch [Mendoza] or Louis Valentin [because it would be] . . . [t]oo obvious."
Plaintiff was also forced to acknowledge that when he was transferred out of the detective bureau in 2012 along with other Hispanic officers, the same number of Hispanic officers were transferred into the bureau from other units. He also admitted he had not heard or seen anything indicating that Sheriff Schillari was motivated by race or ethnicity in transferring him out of the detective bureau. He did not know the statistical breakdown of the officers in the department by race or the number of Hispanics in the department generally or in any bureau. Similarly, although claiming Schillari replaced him in the detective bureau with younger officers with less experience, plaintiff did not put in proof of the ages of those officers or provide any factual basis for his belief that his transfer was motivated by Sheriff Schillari's desire to replace him with a younger officer.
Neither party sought oral argument, and Judge Espinales-Maloney granted defendants summary judgment dismissing plaintiff's complaint in an opinion from the bench. The judge thoroughly reviewed the undisputed facts on the motion, almost all of which were drawn from plaintiff's own deposition, and determined plaintiff had failed to provide any objective evidence, or indeed anything beyond his own subjective belief, that his transfer was motivated by race, age or political discrimination. The judge likewise dismissed plaintiff's civil rights claims and those premised on the employee handbook based on the same lack of evidence that the Sheriff "acted with racial, political, or age discriminatory motive or intent."
We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). In considering application of the LAD to the facts adduced on the motion, our review is de novo without deference to any interpretive conclusions we believe mistaken. Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff contends there were "serious issues of material facts and credibility issues as to the Defendants that should have been decided by a jury" and that he submitted sufficient evidence on the motion to give rise to an inference "that the employer did not act for non[-]discriminatory reasons." See Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005). We disagree.
The trial judge determined plaintiff's discrimination case foundered on his inability to produce sufficient evidence to put the issue of pretext before the jury. Although we agree plaintiff put forth no evidence on the record from which a fact-finder could infer pretext, we also conclude plaintiff failed to establish a prima facie case of discrimination based on political retaliation, race or age.
Our courts review claims of discrimination under the LAD using the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973). In a suit alleging unlawful retaliation under the LAD, a plaintiff's prima facie case consists of demonstrating that: (1) he "engaged in a protected activity"; 2) the activity was "known to the employer"; (3) he suffered "an adverse employment decision"; and (4) there existed "a causal link between the protected activity and the adverse employment action." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)).
Once plaintiff establishes his prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the discharge. Zive, supra, 182 N.J. at 449. If the employer does so, thus overcoming the presumption of an unlawful motivation, the burden shifts back to plaintiff to prove the employer's proffered reason for the termination was merely a pretext for retaliation. See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). "Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination," or as here, retaliation for protected activity. See ibid.
Even giving plaintiff the benefit of the doubt that he demonstrated on the motion that he engaged in the protected activity of supporting Perez against Schillari in the 2010 election, although he financially contributed to Schillari's campaign; that his support for Perez was known to Schillari, although plaintiff produced no evidence of such; and that his transfer out of the detective bureau was an adverse employment decision, see Roa v. Roa, 200 N.J. 555, 567 (2010), plaintiff produced absolutely no evidence on the motion from which a fact-finder could infer a causal link between his support for Perez and the transfer.
Plaintiff claimed that within a week of taking office, Schillari rewarded approximately twenty to thirty people who had worked for his election by moving them to more favorable assignments and displacing those who had not supported him. Plaintiff's assignment, however, did not change. He continued as a detective for over a year after Schillari took over. Moreover, plaintiff testified repeatedly at his deposition that his supervisors told him they had no idea why he had been transferred, and he had never seen or heard anything from any source stating or suggesting the Sheriff had transferred him in retaliation for his support for Perez. Having reviewed the record, we conclude plaintiff's prima facie case foundered on the fourth prong. He simply produced no proof on the motion of any causal link between his alleged support of Perez and his transfer out of the detective bureau. See Young v. Hobart W. Grp., 385 N.J. Super. 448, 466-67 (App. Div. 2005).
Heffernan v. City of Paterson, 578 U.S. ___, 136 S. Ct. 1412, 194 L. Ed. 2d 508 (2016) (holding police officer demoted for picking up campaign sign as favor to bedridden parent was entitled to seek relief based on the city's mistaken belief the officer was engaging in political speech), decided after the calendar date and brought to our attention by plaintiff under Rule 2:6-11(d), does not alter the analysis as we accept that plaintiff's transfer, if motivated by his actual or perceived election support for Sheriff Perez, would be actionable under the LAD and the federal and State constitutions. The issue here is not whether plaintiff properly asserted causes of action based on retaliation for protected political activity, but whether he mustered sufficient facts on the motion in support of his claims to survive summary judgment. --------
Plaintiff's claims for race and age discrimination suffered from similar insufficiencies of proof. He failed to produce evidence on the motion that Schillari replaced him in the detective bureau with a non-Hispanic officer or one sufficiently younger to give rise to an inference of age discrimination. See Sisler, supra, 157 N.J. at 213. Plaintiff also failed to produce any facts from which a fact-finder could infer that Schillari transferred plaintiff out of the detective bureau because of his race or age. We accordingly agree with Judge Espinales-Maloney that plaintiff's remaining claims, all of which were premised on plaintiff's unsupported belief that he was transferred out of the detective bureau based on his race, age or support for Sheriff Perez, were all properly dismissed. Plaintiff's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION