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Patrolmen''s Benevolent Association v. Township of East Brunswick

Decided: July 23, 1981.

PATROLMEN'S BENEVOLENT ASSOCIATION, LOCAL 145 AND LISA CIMINO, PLAINTIFFS-APPELLANTS,
v.
THE TOWNSHIP OF EAST BRUNSWICK, ET AL., DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County.

Matthews, Morton I. Greenberg and Loftus. The opinion of the court was delivered by Loftus, J.s.c. (temporarily assigned).

Loftus

This is an appeal from the decision of the trial court granting the motion of defendant Township of East Brunswick (township) to dismiss the complaint at the end of plaintiffs' case for failure to state a cause of action. Plaintiff Patrolmen's Benevolent Association-Local 145 (PBA) and plaintiff Lisa Cimino brought suit against the township alleging that it had engaged in discriminatory practices with regard to the testing procedures for the position of police officer in the year 1980. Plaintiff PBA alleged that it had been the subject of reverse discrimination. Plaintiff Lisa Cimino alleged that she had been personally discriminated against.

After a hearing at which various witnesses testified and during which documentary evidence was introduced, the trial judge rendered a decision on August 19, 1980 in which he concluded that neither plaintiff had established a cause of action. He specifically found that there was no reverse discrimination as to the PBA and no discrimination as to Lisa Cimino.

Therefore, he entered judgment in favor of defendants and against plaintiffs.

On appeal our scope of review is directed to determining whether the evidence before the trial court together with the legitimate inferences that could be drawn therefrom in the light most favorable to plaintiffs could have sustained a judgment in plaintiffs' favor. R. 4:37-2(b); Dolson v. Anastasia , 55 N.J. 2, 5 (1969).

The issue presented on appeal arises out of the hiring practices in the Division of Police, Department of Public Safety, of the Township of East Brunswick. Since 1973 the township had been named as a defendant in a complaint filed by the New Jersey Division of Civil Rights. This complaint alleged that the township failed to have an appropriate number of female police officers. In an attempt to eliminate the discriminatory practices alleged in the complaint the township embarked upon recruitment procedures for the hiring of qualified female police officers. Efforts to recruit policewomen in 1978 and 1979, including the enactment of an Equal Employment Opportunity and Affirmative Action Program, failed to produce any female recruits.

During the years prior to 1980 the testing procedures of the township required that applicants obtain a score of 70 on the written test and a score of 70 on the physical agility test -- thereby making a minimum combined score of 140. In 1980 the township sought to establish a larger eligibility pool of male and female police officers. Under the 1980 testing procedure an applicant was required to receive a score of at least 70 on the written test before he or she could proceed to the physical agility test. If the applicant received a score of at least 70 on the written test, the passing combined score for the written and physical agility test had to be 120. Therefore, the township reduced the minimum passing score on the physical agility test from 70 to 50 in 1980. After the test two lists were compiled -- one consisting of males who had passed and one consisting of

females who had passed. The municipality then sought to appoint from both lists.

We first address the issue of whether the township engaged in discriminatory practices toward plaintiff Lisa Cimino, a female applicant, who received 69.2 on the written test and therefore was not permitted to proceed to take the physical agility test. The township has the right to require that candidates attain a satisfactory grade on one or more parts of the examination in order to proceed to the next part. East Brunswick Municipal Ordinance, Original Appointments of Vacancies, ยงยง 28:4A(2) and 28:4H(2). At trial Lisa Cimino failed to meet her burden of proving by a preponderance of the credible evidence that the testing procedure employed by the township on the written part of the examination was discriminatory. Therefore, the decision of the trial judge in granting the motion to dismiss at the end of her case was clearly proper and is hereby affirmed.

We next address the question of whether or not the PBA met its burden of proving that the hiring procedures ...


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