offered Plaintiff the job despite the fact that his test scores were inferior to that of the two candidates ahead of him on the roster. (Johnson Aff. PP 6, 10). Plaintiff has adduced no evidence to raise a material issue of fact that the S.C.P.D. had or has a racially discriminatory hiring policy.
Furthermore, Plaintiff has proffered no evidence to demonstrate that the S.C.P.D. has a policy to fire black police officers without cause. As is addressed supra, Defendants refused to grant Plaintiff a permanent position on the S.C.P.D. only after it was revealed that he had misrepresented the scope of his prior criminal record. Aside from what Plaintiff considers a firing without cause in his own case, Plaintiff does not cite or produce any other instances of purported discriminatory firing by the Defendants. As such, summary judgment is hereby granted to Defendants with regard to count twelve of Plaintiff's complaint.
c. Other Federal Constitutional Claims
Plaintiff, in addition to the counts of his complaint premised upon 42 U.S.C. § 2000e-2, and 42 U.S.C. §§ 1981 and 1983, puts forth several other federal causes of action grounded in the Fourteenth Amendment. They will be addressed in turn.
In count five of his complaint, Plaintiff alleges that his Fourteenth Amendment rights of Equal Protection and Due Process were violated as a result of what he perceived to be a more extensive background investigation than other similarly situated officers. (Complaint §§ 42-43). The record before this court indicates that Defendants have submitted the background checks of all S.C.P.D. officers hired in the last ten years. (Def. App. § 9). The reports illustrate that not a single officer had an entry in his or her criminal history category. (Id.). Furthermore, in 1990, Salem City and the S.C.P.D. removed a caucasian applicant from consideration for the job of patrolman after it was revealed that this applicant was charged with aggravated assault and entered a pre-trial intervention program. (Id. at § 10). Thus, even though that applicant did not have the conviction and resultant probation on his record that Plaintiff does, the Defendants struck his name from consideration for the patrolman position. Plaintiff does not submit any evidence to demonstrate that he was subject to a more rigorous background investigation than those officers who were either subsequently hired or were not hired by the S.C.P.D. As such, no material issues of fact are raised with regard to this claim, and the court will grant summary judgment to Defendants as to count five of Plaintiff's complaint.
In count eleven of his complaint, Plaintiff asserts that he was denied "notice and a pre or post deprivation hearing by an impartial body" in violation of the Equal Protection Clause of the Fourteenth Amendment. (Complaint §§ 61-62). This is not an accurate reflection of the events that occurred subsequent to the revelation of the true extent of Plaintiff's criminal history. On or about October 15, 1992, Mayor Johnson notified Plaintiff that he intended to seek his expulsion from the New Jersey Civil Service open competitive employment list. After reviewing the available documentation, the New Jersey Department of Personnel ("NJDOP") removed Plaintiff's name from the open competitive employment list. Plaintiff appealed this determination to the NJDOP and, finding that Plaintiff failed to present any further arguments or proofs, the NJDOP rejected the appeal. Plaintiff declined to pursue an appeal to the Merit System Board. (Def. App. § 8). In a similar manner to count five, Plaintiff has not raised presented any evidence so as to raise a material issue of fact with regard to the allegation that he was denied a hearing when his name was removed from the NJDOP open competitive employment list. Consequently, summary judgment is hereby granted to Defendants as to count eleven of Plaintiff's complaint.
Lastly, in count eight of his complaint, Plaintiff alleges that Defendants did not "properly review the domestic dispute in [his] history in that [he] remains qualified to be a police officer" in violation of his Fourteenth Amendment Equal Protection rights. (Complaint §§ 54-55). Plaintiff presents no possible scenario as to how the Salem City authorities could have handled the matter differently, in fact, this count of Plaintiff's complaint appears to be based upon his misperceptions as to the disabling effect of his conviction for Grand Larceny in South Carolina.
Upon learning of Plaintiff's conviction for Grand Larceny in South Carolina and sentence of probation for the offense from the FBI background investigation report, Mayor Johnson and Chief May confirmed this fact with Plaintiff's probation officer in South Carolina. (Johnson Aff. P 16). As a result, they concluded that Plaintiff would be ineligible to serve as a police officer in New Jersey pursuant to N.J.S.A. 40A:14-122(4) and advised Plaintiff as such via letter dated October 15, 1992. (Id. at P 21; Def. App. § 6).
Thus, it is clear that Plaintiff has not presented any evidence as to how Defendants improperly reviewed the so-called "domestic dispute" that was revealed in his FBI background check and consequently caused Mayor Johnson and the S.C.P.D. to reconsider his pending appointment. Accordingly, summary judgment is hereby granted to Defendants with regard to count eight of Plaintiff's complaint.
2. State Law Claims13
a. Intentional and Negligent Infliction of Emotional Distress
Counts three and four of Plaintiff's complaint allege state law claims of intentional infliction of emotional distress and negligent infliction of emotional distress. Count three, alleging intentional infliction of emotional distress, asserts that Defendant's actions were "extreme and outrageous" because "Defendants knew that Plaintiff had a domestic action on his record prior to their inducement to his employment [sic]." (Complaint §§ 34-35). Count four, alleging negligent infliction of emotional distress, asserts that Defendants' breached their duty of care to Plaintiff and "knew of should of have known their wrongful actions could cause severe emotional distress to Plaintiff." (Id. at §§ 38-39).
Defendants correctly counter that Plaintiff's allegations with regard to Counts 3 and 4 are properly governed according to the limitations imposed by the New Jersey Tort Claims Act ("NJTCA"), N.J.S.A. 59:1-1 et. seq., as all Defendants, Salem City, the Salem City Police Department, Mayor Johnson, and Chief May, are either public entities or public employees. See N.J.S.A. 59:1-3.
Consequently, N.J.S.A. 59:9-2(d) delineates the circumstances under which damages may be recovered for pain and suffering, providing that:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical expenses are in excess of $ 1,000.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.
The New Jersey Supreme Court has concluded, for purposes of N.J.S.A. 59:9-2(d), that emotional distress falls within the definition of "pain and suffering." See Ayers v. Jackson Township, 106 N.J. 557, 566-67, 525 A.2d 287 (1987) ("it is evident that subjective symptoms such as depression, fear, and anxiety -- either as a consequence of emotional distress or a broken limb -- constitute 'pain and suffering' for the purposes of the Tort Claims Act"). See also PBA Local No. 38 v. Woodbridge Police Dep't., 832 F. Supp. 808, 820 (D.N.J. 1993) ("New Jersey courts have characterized the subjective symptoms accompanying emotional distress as within the definition of pain and suffering."). Thus, in order to recover for pain and suffering under the damages provision of N.J.S.A. 59:9-2(d), Plaintiff must demonstrate both a permanent loss of bodily function, permanent disfigurement or dismemberment and medical expenses in excess of $ 1000.00. See Marion v. Borough of Manasquan, 231 N.J. Super. 320, 332, 555 A.2d 699 (App. Div. 1989) ("Pain and suffering, except in the aggravated circumstances described in [N.J.S.A. 59:9-2(d)], are not compensable under the Act."). Plaintiff has adduced no evidence that he has suffered the requisite statutory injuries and it does not appear that he has in fact suffered a compensable injury under the statute. Moreover, nowhere does plaintiff's response to this motion even attempt to make a colorable showing that Defendants owed some duty of due care in refusing to hire Plaintiff once they became aware Plaintiff had failed to disclose his prior felony. New Jersey tort law does not provide recovery for those who suffer emotional distress when their own criminal record bars employment. Accordingly, summary judgment is hereby granted to Defendants with regard to counts three and four of Plaintiff's complaint.
b. Invasion of Privacy
With regard to count thirteen, Plaintiff has alleged that Defendants breached his right to privacy by "releasing privileged and confidential employment matters to the public" resulting in "severe emotional distress; reduced income and lost opportunities." (Complaint §§ 69-71). Plaintiff's claims for severe emotional distress arising from the purported invasion of privacy must be analyzed and dismissed on summary judgment in the same fashion as the aforementioned negligent and intentional infliction of emotional distress claims. See PBA Local 38, 832 F. Supp. at 820-21 (dismissing invasion of privacy claims on summary judgment insofar as they sought damages for "humiliation, mental pain and anguish"). Because Plaintiff is seeking damages for "pain and suffering" under N.J.S.A. 59:9-2(d) he must put forth evidence of severe injury and the requisite statutory medical expenses. See Ayers, 106 N.J. at 576-77; Marion, 231 N.J. Super. at 332. Plaintiff, as noted above, has failed to do so and therefore, summary judgment is hereby granted to Defendants with regard to that portion of count thirteen which seeks damages for severe emotional distress.
In alleging that the Defendants have invaded his privacy, Plaintiff also seeks damages for "reduced income and lost opportunities." (Complaint § 71). Defendants counter by positing that it was not they who invaded Plaintiff's privacy, but it was Plaintiff who actually released private information about himself to the public. (Def. Br. at 23; Def. App. § 7). Again, Plaintiff's allegations and version of the events are not supported by the evidence; in fact, the contrary appears to be true. By letter dated on or about October 30, 1992, Plaintiff wrote to the Salem City newspaper, Today's Sunbeam, and revealed what he perceived the facts to be that underpin this case. In the October 30, 1992 letter, Plaintiff discussed the nature of his claims pending before the U.S. Department of Labor, New Jersey Civil Rights Bureau, and New Jersey Civil Service Commission, and revealed the "domestic incident" which occurred in South Carolina. (Def. App. § 7 (Letter from James Watson to Today's Sunbeam)). Plaintiff has offered no evidence as to how defendants' invaded his privacy. Moreover, a record of criminal conviction is public information, as is the fact that Plaintiff was under probation supervision at the time of his application for employment. Thus, as Plaintiff has put forth no evidence that Defendants released confidential information about his employment history to the public, and it in fact appears that Plaintiff himself released confidential information to the public, Plaintiff has failed to create an issue of material fact to defeat summary judgment as to the remainder of count thirteen.
c. New Jersey Public Policy
Count nine of Plaintiff's complaint alleges that his "termination was violative of state public policy." (Complaint § 57). The New Jersey Supreme Court has determined that "an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505 (1980). See also Versarge v. Township of Clinton, New Jersey, 984 F.2d 1359, 1371 (3d Cir. 1993). New Jersey public policy, however, as evidenced by N.J.S.A. 40A:14-122, see supra part C.1.a, clearly requires that local police officers be of "good moral character." In the instant situation, as noted above, Plaintiff was legally ineligible to serve as police officer in the state of New Jersey on the basis of his conviction for Grand Larceny in the state of South Carolina. It is unprecedented to suggest that New Jersey has a public policy of hiring convicted grand larcenists as police officers. Plaintiff has adduced no evidence demonstrating how Defendants violated New Jersey public policy under the Pierce doctrine sufficient to raise an issue of material fact with regard to this claim, and therefore summary judgment will be granted to defendants as to count nine.
d. Contract Claims
Counts seven and ten of Plaintiff's complaint allege breach of both an express and an implied contract between Plaintiff and the S.C.P.D. Count seven alleges that an express contract between Plaintiff and the S.C.P.D. was created and that the agreement was "supported by consideration whereby Plaintiff would be employed as a police officer pending a routine security clearance." (Complaint § 51). Count ten alleges merely that the actions of the S.C.P.D. are in breach of an implied contract. (Complaint § 59). Defendants counter that, assuming arguendo a binding contract or enforceable promise was created, "the allegations of Plaintiff's own complaint demonstrate that the alleged contract or promise was subject to completion of the background investigation." (Def. Br. at 27).
Under New Jersey law, parties to a contract "are at liberty to agree on one or more conditions precedent upon which their liability will depend." State Farm Mutual Automobile Ins. Co. v. Anderson, 70 N.J. Super. 520, 527, 176 A.2d 23 (App. Div. 1961) (citing Kennedy v. Westinghouse Electric Co., 29 N.J. Super. 68, 78, 101 A.2d 592 (App. Div. 1953), aff'd, 16 N.J. 280, 108 A.2d 409 (1954)). A condition precedent has been defined as a "fact or event occurring subsequently to the making of a valid contract and which must exist or occur before there is a right to immediate performance, before there is a breach of contract duty or before the usual judicial remedies are available." Moorestown Management v. Moorestown Bookshop, Inc., 104 N.J. Super. 250, 262, 249 A.2d 623 (App. Div. 1969) (citing 3A A. Corbin, Corbin on Contracts § 628 (1963)). See also Suburban Transfer Service, Inc. v. Beech Holdings, Inc., 716 F.2d 220, 225 (3d Cir. 1983) (adopting the Moorestown Management, 104 N.J. Super. at 262, definition of a condition precedent).
In the instant case, there is no doubt that if a contract did exist at all, either express or implied, it was subject to the condition precedent of a satisfactory background check. Plaintiff, in § 51 of his complaint, and noted above, specifically admits as much. Defendant Mayor Johnson, the Salem City authority in charge of police department hiring had an identical recollection of the circumstances surrounding Plaintiff's hiring and stated that: "At the time I made the public announcement of Jimmy Watson's appointment to the Department, I also specifically conditioned that appointment upon the successful completion of his background examination and psychological testing." (Aff. of Johnson § 14).
Thus, Plaintiff's successful completion of the background investigation was clearly a valid condition precedent to the creation of an enforceable contract. See Moorestown Management, 104 N.J. Super. at 262. As there is no dispute as to the fact that Plaintiff failed to successfully complete the background investigation, and therefore satisfy the condition precedent, "the usual judicial remedies," Moorestown Management, 104 N.J. Super. at 162, are not available to Plaintiff for breach of contract, either express or implied, and summary judgment is hereby granted to Defendants as to counts seven and ten.
In a manner similar to counts seven and ten, count six alleges that Plaintiff is entitled to recover under a theory of promissory estoppel, as Defendants purportedly induced Plaintiff into employment with the knowledge that he "had a domestic disturbance in his history." (Complaint §§ 47-49). Defendants counter that, as they did to Plaintiff's claims from breach of an express and implied contract, that any promise was "subject to and/or contingent upon the satisfactory outcome of the background investigation." (Def. Br. at 27).
The doctrine of promissory estoppel is well-established in New Jersey. See The Malaker Corp. v. First Jersey National Bank, 163 N.J. Super. 463, 479, 395 A.2d 222 (App. Div. 1978), certif. denied, 79 N.J. 488, 401 A.2d 243 (1979) ("Suffice it to say that given an appropriate case, the doctrine [of promissory estoppel] will be enforced."). Promissory estoppel may apply where "a promisor makes a promise with the reasonable expectation that it will induce either action or forbearance by the promisee and where enforcement of the promise is necessary to avoid injustice." McDonald's Corp. v. Miller, 1994 U.S. Dist. LEXIS 13243, No. 92-4811, 1994 WL 507822 at *10 (D.N.J. Sept. 14, 1994). However, in order to satisfy the prima facie case sufficient to invoke the doctrine, Plaintiff bears the burden to demonstrate the existence of, or for purposes of summary judgment, a dispute as to a material fact, with regard to four separate elements. The elements include:
(1) a clear and definite promise by the promisor;
(2) the promise must be made with the expectation that the promisee will rely thereon;