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WATSON v. CITY OF SALEM

November 9, 1995

JIMMY LANG WATSON, Plaintiff,
v.
THE CITY OF SALEM, a municipal corporation of the State of New Jersey; THE CITY OF SALEM POLICE DEPARTMENT; LEON F. JOHNSON, Mayor; and HAROLD G. MAY, Chief of Police, Defendants.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 Plaintiff Jimmy Lang Watson filed this action alleging that Defendants, the City of Salem, the Salem Police Department, Salem City Mayor Leon Johnson, and Salem City Police Chief Harold May, unlawfully discriminated against him on the basis of his race. Plaintiff seeks equitable, declaratory, and injunctive relief on the basis of a variety of federal and state causes of action, including: (1) the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (2) Fourteenth Amendment Equal Protection, 42 U.S.C. §§ 1981a and 1983; (3) Fourteenth Amendment Procedural Due Process; (4) state law negligent and intentional infliction of emotional distress; (5) state law promissory estoppel; (6) state law public policy; (7) state law invasion of privacy; and (8) state law breach of express and implied contracts. Presently before this court is a motion for summary judgment by all four Defendants pursuant to Fed. R. Civ. P. 56(c), together with Defendants' motion for sanctions under Fed. R. Civ. P. 11.

 The principal issue which we must decide is whether Plaintiff, as a matter of law, was barred from being hired as a police officer by virtue of his 1990 conviction for grand larceny in the state of South Carolina, by operation of N.J.S.A. 40A:14-122. Because we find, for reasons discussed below, that the statutory bar clearly precludes Plaintiff's police employment and impairs each of his numerous claims at state and federal law, we will grant Defendants' motions for summary judgment and impose Rule 11 sanctions arising from Plaintiff's counsel's unreasonable filing of the complaint.

 I. Factual Background

 Plaintiff, Jimmy Lang Watson, an African-American, brings this action against the City of Salem, its Police Department, Mayor, and Police Chief alleging that he was the victim of a plot "based upon deceitful promises base [sic] upon a conspiracy to deny a black male from rightful employment base [sic] upon race." (Plaintiff's Opposition Brief at 10). The allegations of a conspiracy stem from Plaintiff's ill-fated attempt to secure and retain employment as a patrolman with the Salem City Police Department. Underlying Plaintiff's claims is the basic premise that Defendant Salem City Mayor Leon Johnson (hereinafter "Mayor Johnson"), an African-American, and Defendant Salem City Police Chief Harold May (hereinafter "Chief May") sought to hire Plaintiff for a short period of time in order to appease Salem City's minority community and quickly thereafter, for fraudulent and discriminatory reasons, dismiss him from the force. (Affidavit of Jimmy Watson P 19) (hereinafter "Watson Aff."). Upon Plaintiff's dismissal, Plaintiff asserts that Chief May's son would be hired to fill the position. (Id.).

 Defendant Leon Johnson, a former Salem City police officer, was elected Mayor of Salem City in 1992. As Mayor, and by virtue of N.J.S.A. 40A:61-4(f), he retains control over the Salem City Police Department (hereinafter "S.C.P.D."). *fn1" Citing a need to fill vacancies on the S.C.P.D., in September 1992, Mayor Johnson decided to hire another police officer for the department to be ready for duty in January 1993. (Affidavit of Leon Johnson P 4) (hereinafter "Johnson Aff."). To do so, Mayor Johnson consulted the eligible candidate list promulgated by the New Jersey Department of Personnel (hereinafter "NJDOP") as required by New Jersey Civil Service Code, N.J.S.A. 11A:1-1 et. seq., which Salem has adopted. (Id. at P 5).

 The New Jersey Civil Service Code mandates that the municipal appointing authority, in this instance, Mayor Johnson, select a candidate from the top three names on the list. See N.J.S.A. 11A:4-8. In September 1992, it was revealed that Plaintiff was third on the current uncertified (or "roster") list, trailing two caucasian males with superior test scores. (Defendants' Appendix § 1) (hereinafter "Def. App."). All three candidates were contacted for interviews and Mayor Johnson requested that Chief May begin to conduct background investigations on the candidates based upon their employment applications. Although contacted, Plaintiff did not appear for his scheduled interview with Mayor Johnson, but instead, at a later date, visited the Mayor's home to speak with him regarding the job. (Def. Br. at 3; Johnson Aff. P 12).

 It is at this visit to Mayor Johnson's home that Plaintiff's alleged conspiracy began to unfold. At that meeting, Mayor Johnson expressed concern over several answers Plaintiff reported on his employment application, particularly that he listed a misdemeanor criminal violation that occurred in South Carolina. (Johnson Aff. PP 12, 17). Plaintiff and the Mayor discussed the matter at length, and Mayor Johnson asserts that he was ultimately assuaged by Plaintiff's assurances that the incident was merely a minor domestic dispute. (Id. at P 12). Plaintiff, however, recounts a different interpretation of the meeting at Mayor Johnson's house and alleges that he informed Mayor Johnson of the specifics of "any and all criminal arrest or legal matters prior to [his] application." (Johnson Aff. P 26).

 Furthermore, at this meeting, the matter of Plaintiff's age was also discussed. Plaintiff would shortly turn thirty-six years old, and at such time, might be disqualified from being employed as a police officer. See N.J.S.A. 40A:14-127. Thus, the appointment and Plaintiff's entry into the police academy, if it were to occur, would have to take place prior to his thirty-sixth birthday. (Affidavit of Harold May P 5) (hereinafter "May Aff."). As a result of this meeting, Mayor Johnson agreed to hire Plaintiff pending acceptable completion of the requisite background check. (Johnson Aff. P 14). Plaintiff was introduced publicly at the October 1, 1992, Salem City Council meeting as the next Salem City police officer, pending satisfactory completion of the background check. (Id.).

 On or about October 1, 1992, Plaintiff reported to work at the S.C.P.D. and received informal training for approximately one week. (Plaintiff's Appendix § B) (hereinafter "Pl. App."). On or about October 8, 1992, Chief May received the Federal Bureau of Investigation background check of Plaintiff which revealed that in 1990, he was convicted of Grand Larceny in South Carolina, an offense for which he was still serving a sentence of three years probation. (Johnson Aff. P 16; May Aff. P 7). Upon being advised of this report, Mayor Johnson requested that Plaintiff voluntarily remove his name from the list of candidates. (Johnson Aff. P 19). When Plaintiff refused, Mayor Johnson informed him that his appointment was suspended and that he was not to report to the police department any further. Mayor Johnson then informed Plaintiff that he was going to have his name removed from the NJDOP roster. (Id. at P 21).

 As a result of his dismissal, Plaintiff filed a series of agency actions. Plaintiff appealed Mayor Johnson's decision to remove his name from the NJDOP roster. The NJDOP rejected his appeal and notified Plaintiff of his right to appeal to the New Jersey Merit Systems Board. No appeal was taken from this determination. (Def. App. § 8).

 On or about October 14, 1992, Plaintiff filed complaints with the EEOC and New Jersey Department of Civil Rights (hereinafter "NJDCR") alleging that: (1) white police applicants were not subject to similar drug tests; (2) white police applicants were not subject to similar background checks; and (3) white police officers were not fired for offenses on their records. (Id. at § 5). On January 14, 1993, the NJDCR held a factfinding conference at which Plaintiff failed to appear. Subsequently, on February 14, 1994, Plaintiff's NJDCR complaint was dismissed for lack of probable cause. (Id. at § 13). Similarly, Plaintiff's EEOC complaint was dismissed on May 31, 1993. (Id.).

 The following lawsuit ensued.

 II. Plaintiff's Complaint

 Plaintiff's complaint seeks legal, declaratory, injunctive, and equitable relief on the basis of numerous federal and state causes of action. For purposes of clarity, each count of Plaintiff's complaint is hereby renumbered and summarized as follows: *fn2"

 
1. Title VII racial discrimination, 42 U.S.C. § 2000e -- alleging that Plaintiff was not offered a permanent position on the basis of race;
 
2. 14th Amendment Equal Protection, 42 U.S.C. § 1981 -- (same);
 
3. Intentional infliction of emotional distress -- alleging that Defendant's actions were extreme and outrageous in that Defendants knew Plaintiff had a "domestic action" on his record prior to his offer of employment;
 
4. Negligent infliction of emotional distress -- alleging that Defendants breached their duty of care to Plaintiff and caused severe emotional distress;
 
5. 14th Amendment Equal Protection and Due Process -- alleging that Defendants conducted a more extensive background investigation upon Plaintiff than upon similarly police situated officers;
 
6. Promissory Estoppel -- alleging that Defendants induced Plaintiff into employment and that Plaintiff reasonably relied on Defendants promises;
 
7. Breach of an express contract between Plaintiff and the S.C.P.D.;
 
8. 14th Amendment Equal Protection -- alleging that Defendants did not "properly review the domestic dispute in Plaintiff's history;"
 
9. Public Policy -- alleging that Plaintiff's termination is violative of New Jersey state public policy;
 
10. Breach of an implied contract between Plaintiff and the S.C.P.D.;
 
11. 14th Amendment Equal Protection -- alleging that Defendants failed to provide "notice and a pre or post deprivation hearing by an impartial body;"
 
12. 42 U.S.C. § 1983 -- alleging that Defendants "had a policy to discriminate against blacks by not offering them employment and by termination of blacks without cause;"
 
13. Invasion of privacy -- alleging that Defendants "released privileged and confidential employment matters to the public."

 III. Discussion of Law

 A. Ripeness for Decision on Summary Judgment

 At the outset, it is important to note that the court "is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery." Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). In order to request that the court withhold decision on a summary judgment motion, the party seeking the delay must file a Rule 56(f) affidavit indicating that more discovery is needed. *fn3" Radich v. Goode, 886 F.2d 1391, 1393-94 (3d Cir. 1989) (concluding that an unverified memorandum opposing a motion for summary judgment does not comply with the Rule 56(f) affidavit requirement); Dowling, 855 F.2d at 139-40. The affidavit must include "what particular information is sought; how, if uncovered it would preclude summary judgment; and why it has not been previously obtained." Dowling, 855 F.2d at 140 (citing Hancock Indus. v. Schaeffer, 811 F.2d 225, 229-30 (3d Cir. 1987)).

 The Rule 56(f) affidavit is required "'to ensure that the nonmoving party is invoking the protection of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition.'" Radich, 886 F.2d at 1394 (quoting First Chicago Int'l. v. United Exchange Co. Ltd., 267 U.S. App. D.C. 27, 836 F.2d 1375 (D.C.Cir. 1988)). Thus, Plaintiff's unsworn argument that time for discovery should be extended, without an appropriate Rule 56(f) affidavit, is not sufficient grounds for this court to delay decision on the pending summary judgment motion. See Radich, 886 F.2d at 1394-95 ("an [unsworn] statement is lacking both in substance, and in any indicia of evidentiary reliability contemplated by the requirements of Rule 56"); Township of Wayne v. Messercola, 789 F. Supp. 1305, 1310 n.9 (D.N.J. 1992).

 In addition, this court finds further support to proceed with decision on the pending motion in this matter from Fed. R. Civ. P. 16. *fn4" It is axiomatic to note that this court has a vital interest in ensuring that the cases before it are run in a manageable and productive manner consistent with constitutional and statutory fundamentals. As a result, this court is vested with broad authority to issue scheduling orders pursuant to Rule 16, and it considers its pretrial case management responsibilities to be among the most important. The Third Circuit Court of Appeals has explained that:

 
. . . The purpose of Rule 16 is to maximize the efficiency of the court system by insisting that attorneys and clients cooperate with the court and abandon practices which unreasonably interfere with the expeditious management of cases. The Rule was promulgated as a response "to a widespread feeling that [it] is necessary to encourage pretrial management that meets the needs of modern litigation."
 
The intent and spirit of Rule 16 is to allow courts to actively manage the timetable of case preparation so as to expedite the speedy disposition of cases. . . .

 Newton v. A.C. & S., Inc., 918 F.2d 1121, 1126 (3d Cir. 1990) (quoting Fed. R. Civ. P. 16 Advisory Committee Notes). Rule 16 scheduling orders "are at the heart of case management," and if they can be disregarded by non-compliance, "their utility will be severely impaired." Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986). If a party or party's attorney fails to obey a Rule 16 Order, is substantially unprepared to participate in a scheduling conference, or fails to participate in good faith, the court, in addition to imposing sanctions, "may make such orders with regard thereto as are just." Fed. R. Civ. P. 16(f).

 Judge Rosen, pursuant to an Order dated May 30, 1995 and Rule 16(f), directed Defendants to file a Rule 56 summary judgment motion. Judge Rosen did so in response to the dilatory and haphazard manner in which Plaintiff's counsel approached discovery and her obligations under Rule 16. A review of the circumstances surrounding Judge Rosen's Order strongly supports his rationale.

 Plaintiff filed his complaint with the Clerk of the Court on August 29, 1994. Service of process was effected on December 27, 1994, exactly 120 days after the filing of the complaint. On January 19, 1995, Judge Rosen entered an initial scheduling Order calling for the appearance of counsel on February 22, 1995. (Order for Scheduling Conference, dated January 19, 1995). In that Order, Plaintiff's counsel was also advised of her disclosure obligations under the early discovery provisions of Fed. R. Civ. P. 26. (Id.). At Plaintiff's request, the February 22 conference was postponed until May 16, 1995. (Letter from Judge Rosen to counsel, dated April 28, 1995).

 On May 16, 1995, Defendants' counsel appeared at Judge Rosen's chambers for the rescheduled conference, only to be informed that Plaintiff's counsel had canceled the conference the day before "due to a conflict in her schedule." (Def. Br. at 14). Defendant's counsel was not informed in ...


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