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Esposito v. Township of Edison

December 16, 1997

JOSEPH S. ESPOSITO, ALLEN HERMAN, DAVID OROSZ, MICHAEL BURZINSKI, ROBERT ZUBER, GARY THOMAS AND ADAM TIETCHEN, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF EDISON AND TOWNSHIP OF EDISON POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.



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

Approved for Publication December 16, 1997.

Before Judges Pressler, Conley and Carchman. The opinion of the court was delivered by Pressler, P.j.a.d.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Plaintiffs, seven patrolmen employed by the defendant, Township of Edison, appeal from a summary judgment dismissing their age-discrimination complaint in which they asserted that the Township's criteria for promotion to police sergeant disparately treated or disparately impacted upon patrolmen over the age of forty. Having carefully reviewed the motion record, we are persuaded that plaintiffs failed to establish a prima facie case of discrimination. In sum, the record demonstrates no support for plaintiffs' claim that they were victims of age discrimination by reason either of the written-test component or the college-credit component of the promotional criteria, or by both components in combination. Accordingly, we affirm.

Edison is not a civil service municipality. Prior to 1993, there was no merit-based promotion procedure for the Township's Police Department. The undisputed allegation of the Township is that the promotional process was tainted by favoritism and Department politics. In order to cure this problem and to enhance the professionalism of the Police Department, the Township determined to institute a merit-based system akin to civil service requirements for its 1993 promotions to sergeant. The system's criteria, developed by Township officials in consultation with command officers of the Department and representatives of the P.B.A., included both a written and oral test, the written test accounting for forty percent of the candidate's score and the oral test for sixty percent. The total weighted score was then to be enhanced by the addition of credits for both seniority and education. Thus, one-half point was to be added to the weighted score for each year of service after the fifth year for up to a maximum of ten points, while two points were to be added for each level of college degree. That is, two points would be added for an associate's degree, four points would be added for a bachelor's degree and six points would be added for a post-graduate degree. Finally, admission to the promotional process was limited to candidates having at least five years of experience as a police officer. In implementation of this plan the Township contracted with a nationally-known police testing organization, McCann Associates, Inc., of Langhorne, Pennsylvania, to devise a written multiple choice examination to test the candidates' knowledge of police procedure and supervisory responsibilities. The examination tested seven specific areas of required knowledge and took into account the views of the Township and the Department command staff regarding the relative significance of each of the areas. The oral examination contemplated by the plan was to be conducted by a six-member board consisting of three neighboring police chiefs and three superior officers of Edison. The twenty-minute oral test/interviews were open to all candidates irrespective of their written test scores.

The Township's first notice to the Department of the promotional examination for sergeant was contained in a memo to patrol officers from the Deputy Police Chief dated February 2, 1993, advising that the examination would be given at the beginning of June 1993. On March 9 the Director of Public Safety filed in the clerk's office a notice that McCann Associates would be preparing, administering and scoring the written examination. The notice also included a detailed statement of the promotional criteria and methodology, indicating that in addition to the test scores and the enhancement points, consideration would be given to recommendations by superior officers and a review of the candidates' personnel files. The procedure for the oral examination was also fully explicated. In addition, McCann Associates prepared study guides for the candidates, which included reading lists, sample written questions, and general test-taking and scoring information.

Eighty-one candidates sat for the written part of the sergeant's promotional exam on May 22, 1993. Each candidate was assigned an identification number to assure anonymity in scoring. All but two of the candidates went on to the oral exam, which was administered between June and September 1993. A ranked promotional list consisting of seventy-nine candidates was then prepared. The rankings were based on the total weighted written and oral test scores enhanced by seniority and education credits. The first eight ranked candidates were promoted to sergeant in September 1993. The next seven ranked candidates were promoted in November 1994. None of the seven plaintiffs was among the top eight ranked candidates. One, Allen Herman, was among the second group of seven and was accordingly promoted in November 1994.

The gravamen of the plaintiffs' age-discrimination claim is that a written examination and the awarding of enhancing points for college degrees discriminate against the older patrol officers in the Department because older officers are less likely to have obtained any college education than younger officers and, because they have less formal education, are not likely to do as well on written examinations as younger officers. Plaintiffs make this claim despite the fact that for many years the Township has had a program, under its collective negotiation agreement, of paying for the education of those members of its Police Department who choose to pursue college credits and has implemented this program by adjusting the working hours of the participating officers to accommodate school attendance. Plaintiffs also make this claim despite the fact that older officers obviously obtain a greater benefit from the awarding of seniority credits than do younger officers. And they further make this claim despite the fact that nine of the total of fifteen promoted patrol officers had no college education at all. Plaintiffs apparently base this action primarily on the statistical fact that of the fifteen promoted officers, only three were forty or older, the ages of the others ranging from thirty-one to thirty-nine.

By way of procedural background, plaintiffs first raised their discrimination claims by an action in the Federal District Court of New Jersey in which they relied on the Equal Employment Opportunity Act (EEOA), 42 U.S.C.A. § 2000e to § 2000e-17, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 621 to § 634, as well as state law. On plaintiffs' motion, the federal court dismissed the federal claims with prejudice but dismissed the state claims without prejudice. This action then ensued in the Superior Court, Law Division, under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, 10:5-12a. Some of the plaintiffs also alleged that acts of retaliation had been taken against them by the Township in response to their filing of the action. The Township moved for summary judgment in the summer of 1995, and at the oral argument, the Judge reserved decision, indicating his need to further study the issues. The Judge then requested additional materials, held further oral argument, and finally, in December 1996, issued a letter opinion explaining his reasons for granting the motion. A conforming order dismissing the complaint was entered in January 1997. There is no ready explanation for the untoward delay in the Disposition of the motion.

In considering the plaintiffs' claim on appeal that they demonstrated a sufficient prima facie case of age discrimination to withstand the summary judgment motion, see, e.g., Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995), we are not certain, because it was not clearly articulated by plaintiffs, whether their theory is that the Township devised the promotional procedure in order to discriminate against them because of their age or whether, irrespective of intent, the nature of the promotional process had a discriminatory impact on them. Either theory, if proved, would, of course, be effective to support the discrimination claim. See generally Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 361-363, 497 A.2d 199 (App. Div.), certif. denied, 102 N.J. 336 (1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1791, 90 L. Ed. 2d 337 (1986). We, therefore, address both theories in the light of the record.

To begin with, the following are the undisputed facts respecting the performance of each of the plaintiffs in the promotional process:

Plaintiff Herman, then forty-seven years old and a fourteen-year member of the Department, placed tenth overall on the promotion list. His total weighted test score was twelfth. He tied for first place on the written portion and was seventieth on the oral portion. He received ...


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