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SANTIAGO v. CITY OF VINE LAND
August 2, 2000
VERSUSLAW A. SANTIAGO, PLAINTIFF,
CITY OF VINELAND, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Orlofsky, Judge
In this employment discrimination suit, this Court is called
upon to determine, among other things, whether undesirable
personality traits constitute an "impairment" under the Americans
with Disabilities Act and whether a municipal special law
enforcement officer who, by State statute, can be discharged only
"for cause after an adequate hearing" is entitled to a
pre-termination hearing when he is accused of selling illegal drugs at
some point in the past. Plaintiff Luis A. Santiago ("Santiago"),
a former special law enforcement officer of the City of Vineland,
has filed an Amended Complaint alleging that the City, its former
mayor and various police officials violated his federal and
constitutional rights under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (Counts One and Six), the
Americans with Disabilities Act, 42 U.S.C. § 12111, et seq.
(Counts Four and Six), and 42 U.S.C. § 1981, 1983, 1985, 1986,
1988 (Count Three). See Am. Compl. at ¶¶ 43-46, 51-61, 65-67.
In addition, Santiago alleges discrimination and retaliation
claims under the New Jersey Law Against Discrimination, N.J.S.A.
10:5-1, et seq. (Counts Two, Four and Six), as well as the common
law claims of false arrest (Count Five), malicious prosecution
(Count Five), breach of contract (Count Seven), intentional
interference with his contractual relationship (Count Eight), and
the tort of "outrage" (Count Nine). See id. at ¶¶ 47-50, 56-74.
Before this Court are two motions for summary judgment,
pursuant to Federal Rule of Civil Procedure 56(c), filed by the
two sets of defendants in this case, the City of Vineland, Joseph
Romano and John P. Gallo and by Mario Brunetta, Paul Letizia, John
Fresne and Dennis D'Augostine (collectively, "Defendants"). See
Notice of Motion for Summ. J. by Defs., City of Vineland, Joseph
Romano and John P. Gallo at 1 (filed Aug. 6, 1999); Notice of
Motion for Summ. J. by Defs., Mario Brunetta, Paul Letizia, John
Fresne and Sennis [sic] D'Augostine at 1 (filed Aug. 6, 1999).
Because both motions for summary judgment rely on substantially
similar grounds, and because Santiago has submitted only one brief
in opposition to the motions for summary judgment, I shall
consider the merits of the motions jointly, where appropriate.
This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331,
*fn1 1343,*fn2 and
1367.*fn3 For the reasons set forth below, I shall grant in part
and deny in part the Defendants' motions for summary judgment.
The issues in this case are presented within the framework of
three overarching factual events: (1) Santiago's discharge from
his position as a Vineland special law enforcement officer; (2)
the City of Vineland's failure to hire Santiago as a police
officer; and (3) Santiago's subsequent arrest for unlawful
possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (West
On September 3, 1992, Plaintiff, Luis A. Santiago, who is
Hispanic, applied for the position of special law enforcement
officer in the City of Vineland. See Pl.'s App. to Br. in Opp. to
Motion for Summ. J. ("Pl.'s Ex.) Vol. I (Vineland Special Police
Applicant Investigation) at 1. As part of the application
process, Dr. Donald Babcock of the Vineland Guidance Center
evaluated Santiago, found him "psychologically fit," and
recommended him for the position. See App. to Br. in Supp. of
Mot. for Summ. J. by Defs. City of Vineland, Joseph Romano and
John P. Gallo ("Defs.' Ex.) 2 at 7 (referencing Jan. 18, 1993
Babcock evaluation). On April 26, 1993, Luis A. Santiago was
appointed as a special law enforcement officer of the City of
Vineland. See Pl.'s Ex. Vol. I (Oath of Office, dated April 26,
1993). The post is for a term not to exceed one year and the
appointment "may be revoked by the local unit for cause after
adequate hearing." N.J.S.A. 40A:14-146.13 (West 1993). Santiago
was reappointed to the position three separate times. See Pl.'s
Ex. Vol. 1 (Oaths of Office, dated April 25, 1994, May 22, 1995,
and Jan. 29. 1996).
During his tenure as a special law enforcement officer,
Santiago applied for a position with the Cumberland County
Sheriff's Department, for which he underwent another psychological
evaluation with Dr. Babcock. See Defs.' Ex. 32 at 1. On July 20,
1995, Dr. Babcock reported his psychological evaluation of
Santiago, which included the following:
Mr. Santiago was married in June[,] 1992 and separated
in May, 1994. He claims financial and communication
problems in the marriage which had minor domestic
violence. He denied hitting but admitted grabbing. He
felt she also had a temper. There will not be a
reconciliation. There have been reports that he is
physically abusive to his wife.
Id. at 2. In addition, Dr. Babcock reported that:
Id. at 3-4. Dr. Babcock did not recommend Santiago for the
position with the Cumberland County Sheriff's Department because,
according to Dr. Babcock's report, "Santiago is not considered
emotionally fit to carry out the duties of a law enforcement
officer." Id. at 4.
A week after the date of the report, Santiago applied to the
Vineland Police Department for the position of police officer.
See Pl.'s Ex. Vol. I (Application, filed July 27, 1995). He
placed twelfth on the New Jersey Department of Personnel's August
25, 1995 "Certifications of Eligibles for Appointment" list
("Eligibles List"). See Defs.' Ex. 11 at 2. On August 30, 1995,
the Vineland Police Department recommended for hire four
individuals, other than Santiago, the last of whom was ranked
eleventh on the Eligibles List. See Defs.' Ex. 12. As the
twelfth candidate on the list, Santiago was not considered for the
August 30, 1995 hiring.
Consistent with standard application procedure within the
Police Department, Sergeant John A. Fresne of the Vineland Police
Department investigated Santiago's background and on September 15,
1995, he filed his report with the Department. See Defs.' Ex. 2.
According to the report, it was Sergeant Fresne's opinion and
The applicant [Santiago] has had several
disciplinary actions while he has been employed by this
department. These actions include excessive speed in a
police vehicle, sleeping while on duty, and being
discourteous to a police officer and city officials of
West Cape May. Although he has only received one letter
of reprimand for sleeping while on duty, these
allegations are indications that the applicant is
immature and that there will be disciplinary problems.
The applicant has been attempting to gain employment
from several different agencies with the latest being
the Cumberland County Sheriff's Department. The
applicant was sent for a psychological evaluation and it
was determined that he is not psychologically fit to be
a police officer and he was therefore turned down for
Considering all of the above presented facts, I
cannot recommend the applicant for the position of
police officer. If in time, the applicant matures and
he is re-evaluated and determined to be psychologically
fit, I would reconsider my opinion and recommendation.
In early 1996, Santiago placed third on the New Jersey
Department of Personnel's January 22, 1996 Eligibles List. See
Defs.' Ex. 13. According to the deposition testimony of Sergeant
Fresne, two days following the date of the Eligibles List, on
January 24, 1996, Santiago was interviewed for the position of
Vineland police officer. See Defs.' Ex. 37 (John Fresne Dep.) at
89. On January 25, 1996, Chief of Police Mario R. Brunetta, Jr.
recommended for hire four individuals other
than Santiago. See Defs.' Ex. 14 at 1. A subsequent letter by
Brunetta explained that Santiago, among others, was not considered
for appointment because he had failed to respond to a certification
notice signaling his interest and intent to remain eligible for hire.
See Defs.' Ex. 15 at 1. In his deposition, Santiago testified
that he had indeed failed to respond to the notice for the
January, 1996 hiring. See Defs.' Ex. 35 at 41-43.
According to Santiago, at some point in January, 1996, a
detective from the police department brought Santiago a cartoon
drawing that had been posted at the Vineland Police Department.
See Pl.'s Br. at ¶ 62. The cartoon is entitled "A Portrait of
Spec. Santiago (Animal Control Lover)" and depicts Santiago as
obese, with sinister eyes and a long mustache. See Defs.' Ex. 28.
In the cartoon, the artist depicts Santiago as wearing bunny
slippers, which the drawer calls "Roadkill-Takes His Work Home"
and carrying both a "Child Size [sic] Radio For Those `Wanna Be
Cops Moments'" and a forked object, referred to as "Unauthorized
Equip. For Dangerous Attacks from Killer Squirrels." Id. In
addition, the cartoonist points to dark circles or bags under the
subject's eyes, noting the "Hard Strenuous Nights Studying For His
Psych" and, at the top of the drawing, the cartoonist quips, "Good
Luck on Your Psych!!!" Id. Santiago testified that, because
there was no reference to his race in the cartoon, he did not
interpret its posting to be harassment on the basis of his race.
See Pl.'s Ex. Vol. II (Santiago 12/30/1998 Dep.) at 135. As an
Hispanic individual, however, he was offended by the cartoon. See
id. at 136. Santiago testified that he did not report the cartoon
to anyone within the Vineland Police Department. See Defs.' Ex.
52 (Santiago 12/30/1998 Dep. at 71).
A few weeks later, on February 14, 1996, Santiago was
discharged from his job as a special law enforcement officer. The
reasons for his discharge and the manner in which it occurred are
disputed. According to the Defendants, in November, 1995,
Sergeant Dennis D'Augostine and a colleague not a party to this
suit met with a confidential informant, named, for purposes of
this case, "Manny." "Manny" told the police officers that
approximately one and one-half years before, in 1994, Santiago and
his twin brother, Angel, who was also a special law enforcement
officer for the City of Vineland, were involved in the drug
operation of Freddy Oquendo, a person known to the detectives to
be involved with drugs. See Defs.' Ex. 4 at 1-2. According to
the intelligence report written by D'Augostine, "Manny" was a
reliable informant, whose information had led to seventeen
previous narcotic-related arrests. See id. at 1. According to
the report, "Manny" stated that "he/she personally observed one of
the Santiago brothers in possession of cocaine at Tony's Pizzeria"
but that he did not know if either Santiago or his brother, at
that point in time, continued to assist Freddy Oquendo in his drug
operation. Id. at 1-2.
A few months later, on January 24, 1996, the same day
Santiago was interviewed for the job of Vineland police officer,
D'Augostine learned of Santiago's status as a police officer
applicant and, according to the testimony of Sergeant Fresne and
Chief Mario Brunetta, he informed both Fresne and Brunetta of the
drug-related information he received concerning Santiago. See
Defs.' Ex. 37 (John Fresne Dep.) at 48; Defs.' Ex. 41 (Mario
Brunetta, Jr. Dep.) at 67-68. Brunetta testified that he directed
D'Augostine to conduct an investigation to determine whether any
additional information regarding Santiago's alleged narcotic
involvement was available and to prepare a report. See Defs.' Ex.
41 at 71; see also Defs.' Ex. 8 (Vineland Police Dep't Memo from
Capt. J.A. Martinez to Sgt. D'Augostine stating that Chief
Brunetta directs D'Augostine to follow-up and attempt to
substantiate the information).
According to D'Augostine's second report, dated February 16,
1996, at some point in the month of February, 1996,
D'Augostine and two other colleagues, not parties to this suit,
met again with the confidential informant, "Manny." See Defs.'
Ex. 5 at 1. According to the report, "Manny" told D'Augostine and
others that while Santiago was a Vineland special law enforcement
officer, he was in possession of cocaine and was present while
numerous drug transactions occurred inside Tony's Pizzeria.
See id. at 2. "Manny" reported, moreover, that he heard Santiago
request cocaine from Freddy Oquendo and then state, after he
received the narcotic, that he would return with the money.
See id. "Manny" also allegedly stated that on another occasion,
outside the Pizzeria, Santiago and "Tony," the alleged nephew
of Freddy Oquendo, were seated in a Tony's Pizzeria delivery truck
when Tony told "Manny" that they were going to deliver cocaine.
See id. All of the reported events allegedly occurred one and
one-half to two years before the date of the report; "Manny" had
no current information on Santiago. See id. at 1.
According to the Defendants, on February 14, 1996, after
receiving the updated information, Chief Brunetta, believing that
Santiago was an "at will" employee, ordered Sergeant Letizia to
discharge Santiago from his position as a special law enforcement
officer with the City of Vineland. See Defs.' Ex. 41 at 78.
According to the deposition testimony of Sergeant Letizia, he met
with Santiago on February 14, 1996 and terminated Santiago's
employment with the City of Vineland because certain "detrimental
information" had surfaced regarding Santiago. See Defs.' Ex. 38
(Letizia Dep.) at 25-28. Santiago testified that, although
Letizia told him that in the course of the background
investigation it had been discovered that Santiago was involved in
narcotics activity, Santiago already knew of the allegations,
possibly because his brother, Angel Santiago, told him. See
Defs.' Ex. 35 (Santiago Sept. 15, 1998 Dep.) at 79-80.
According to the deposition testimony of Letizia, he informed
Santiago that he was to contact Captain Martinez for further
information. See Defs.' Ex. 38 (Letizia Dep.) at 26.
Later that same day, while Santiago stood on a street corner
outside the police station, Chief Brunetta approached Santiago to
explain the circumstances of Santiago's discharge. See Defs.' Ex.
35 (Santiago Sept. 15, 1998 Dep.) at 87; Defs.' Ex. 41 (Brunetta
Dep.) at 78. In their brief conversation, Brunetta explained that
he had made the determination to discharge Santiago based upon the
narcotic information provided by Sergeant D'Augostine. See Defs.'
Ex. 41 (Brunetta Dep.) at 79. Brunetta testified that while
Santiago told Brunetta that the allegations were not true,
Santiago was not afforded a formal hearing on the allegations that
he was, at one time, involved in the sale of narcotics. See id.
at 79, 81. Brunetta testified that neither he nor any officer at
his direction asked Santiago to respond to the allegations against
him. See id. at 78.
The following day, Santiago and his brother, Angel, met with
Captain Martinez and Sergeant John Fresne regarding the
termination, and surreptitiously tape-recorded the meeting. In
this meeting, Santiago contends that Captain Martinez specifically
stated that he would not "discuss the merit[s]" of the discharge.
Pl.'s Br. at 17 (citing Defs.' Ex. 10 (Transcript of Meeting) at
On February 23, 1996, the New Jersey Department of Personnel
sent Santiago a Certification Disposition Notice informing him
that his name had been removed from the Eligibles List because he
had "failed to respond to the certification notice as required."
Defs.' Ex. 16 at 1. In response, Santiago sent a letter of
appeal, seeking reinstatement to the Eligibles List for the
position of Vineland Police Officer. See Defs.' Ex. 17 at 1. In
the letter, Santiago stated that:
Approximately one month later, on April 8, 1996, Santiago
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission, claiming that he had been discriminated
against by the Vineland Police Department and Chief Mario
Brunetta[, Jr.], solely on the basis of disability. See Defs.'
Ex. 21 at 1. Specifically, Santiago claimed that the Vineland
Police Department and Brunetta told him that he was "terminated
and refused hire as a Police Officer because of an allegation of
drug activity made by Respondent's Narcotic Unit." Id. Moreover,
Santiago alleged that he was unlawfully discriminated against
"based on a Perceived Disability" and "denies that he was ever
involved in any drug activity and further alleges that despite his
diligence and hard work he was terminated from same and refused
hire as a Police Officer." Id.
That same week, Santiago was restored to the Eligibles List
for the police officer position. See Defs.' Ex. 18 (dated April
15, 1996) at 1. On April 22, 1996, Santiago wrote to Mayor Joseph
Romano, stating that he had been discharged from his position as a
special law enforcement and animal control officer "without due
cause" and seeking the Mayor's assistance in receiving information
from the Vineland Police Department. See Defs.' Ex. 29 (Letter)
at 1. Santiago testified that he sent a similar letter to John
Gallo, the Director of Public Safety for the City of Vineland.
See Pl.'s Ex. Vol I (Santiago 9/15/1998 Dep.) at 15.
According to the Defendants, approximately four months later,
on August 1, 1996, a citizen, Robert Carr, who resided at 129 W.
Linden Street in Clayton, New Jersey, reported to Sergeant John
Fresne that he was aware that Santiago had applied to become a
Vineland Police Officer and that Santiago had sold marijuana to
students while in high school. See Defs.' Ex. 6 (Vineland
Intelligence Report) at 1; see also Defs.' Ex. 37 (Fresne Dep.) at
75. According to the report filed by Fresne, he confirmed that
Carr worked with Santiago at the Sears, Roebuck and Co. ("Sears"),
which was, at that time, Santiago's place of employment, and that
Carr attended Vineland Senior High School with Santiago. See
Defs.' Ex. 6 at 1; see also Defs.' Ex. 37 at 76. Since the date
of the alleged statement, however, Carr has denied that he ever
gave information to the police concerning Santiago's alleged
involvement with marijuana while in high school. See Carr Aff. at
¶ 4 (dated July 15, 1999).
On August 1, 1996, Santiago placed second on the Eligibles
List for the position of police officer of the City of Vineland.
See Defs.' Ex. 19 (August 1, 1996 list) at 1. On August 13,
1996, Rudolph A. Luisi, the Director of Police, recommended five
individuals other than Santiago for employment as Vineland police
officers. See Defs.' Ex. 20 (Letter from Luisi, Director of
Vineland Police, to Linda M. Dechen, Business Administrator, dated
Aug. 13, 1996). In short, Santiago was bypassed.
The following week, the Vineland Police Department received
information from two sources that Santiago was unlawfully carrying
a handgun at his job as a security officer at Sears. A citizen,
Wanda Wheeler, testified that she called the police department
"[b]ecause [she] had a concern that [Santiago] had brought a gun
into Sears and he often mentioned about [sic] having guns in the
trunk of his car. I'm sorry, but to me that was a concern that an
ordinary citizen was carrying around guns." Defs.' Ex. 42
(Wheeler Dep.) at 17. Sergeant D'Augostine testified that his
second source was a confidential informant who "provided . . .
information that Luis Santiago was carrying a handgun inside
Sears." Defs. Ex. 39 (D'Augostine Dep.) at 9; see also Defs.' Ex.
7 (police report) at 1. D'Augostine further testified that this
confidential informant was "reliable" and "had been used in the
past" to make arrests. Defs.' Ex. 39 at 9.
Aware that Santiago had filed discrimination charges against
him and the Vineland Police Department, D'Augostine testified that
he asked Internal Affairs Officer James Elliot to accompany him to
Sears to document the event. See id. at 25-26; see also Defs.'
Ex. 40 (Elliot Dep.) at 40-41.
At this point, the record contains two differing versions of
the event. Interpreting the facts in the light most favorable to
Santiago, what next transpired is as follows. Upon Santiago's
exit from the Sears building, the police advised Santiago that
they had received information that he was in possession of a
handgun and they immediately informed him of his Miranda rights.
See Defs.' Ex. 7 (police report) at 2 and Miranda form. After
Santiago consented to a search of his car, the police found a
Glock nine-millimeter handgun in the trunk of the car and
ammunition in the passenger compartment. See id. at 2-3 and
Consent to Search form. While Santiago possessed a valid permit
for the purchase of the weapon, he did not have a permit to carry
it. See id. at 2 and Permit to Purchase a Handgun & Form of
Register. After the police determined that he was not taking the
gun to a shooting range, a potentially exonerating exception for
his failure to have a permit to carry such a weapon, the police
transported Santiago to the Vineland police station and charged
him with unlawful possession of a weapon, in violation of N.J.S.A.
2C:39-5(b). See id. at 3; see also Defs.' Ex. 40 (Elliot Dep.) at
40. Santiago was released on his own recognizance. See id. at 3.
Subsequently, the case was presented to a grand jury, which did
not return a true bill.
According to Santiago, the evidence against him was
fabricated and/or coerced from witnesses in retaliation for an
event that occurred nearly eight years ago, for the purpose of
depriving Santiago of his employment. See Pl.'s Br. in Opp. to
Mot. for Summ. J. at 8. According to Santiago, on September 19,
1992, a white resident of Vineland observed an Hispanic youth
vandalizing his property. See Pl.'s Ex. Vol. I. (Police Report
Exs. to D'Augostine Dep.). A chase ensued, which was joined by
two off-duty white police officers. See id. According to the
reports, the chase and the eventual apprehension of the fleeing
youth attracted a crowd of African-American and Hispanic
residents. See id. At some point, a small riot broke out between
the crowd of residents and the white officers and white residents.
Sergeant D'Augostine was involved in the investigation of the
incident. See Pl.'s Ex. Vol. I (D'Augostine 2/2/1999 Dep.) at 12.
Santiago was a witness to the September 19, 1992 incident and,
when questioned by D'Augostine about the events, he claims that he
told D'Augostine that he did not want to give a statement. See
Pl.'s Ex. Vol. II (Santiago 12/30/1998 Dep.) at 179. This Court
notes that, at that time, Santiago already had applied to become a
special law enforcement officer of the City of Vineland.
According to Santiago, D'Augostine threatened Santiago that
if Santiago did not provide a statement, "[D'Augostine] was going
to f___" him because D'Augostine was aware that Santiago aspired
to be a Vineland Police Officer. See id. at 174-75. According to
Santiago, he did in fact make a statement to the police. See id.
Santiago testified that although he told the interviewing officers
in his taped statement that he had not been coerced, he told two
officers that if asked, he would testify that he was forced to
provide information to the police. See id. at 178-79. Santiago
further testified that he believed that his termination, the
failure to hire, and subsequent arrest are, "to some . . .
extent," a result of D'Augostine's threat that "he was going to
f___" Santiago, despite the fact that Santiago had little contact
with D'Augostine in the years between 1992, the year of the
Vineland uprising, and 1996, the year that Santiago was discharged
from his position as a special law enforcement officer and
bypassed for employment as a Vineland Police Officer. See Pl.'s
Vol. II (Santiago 12/20/1998 Dep.) at 175-78.
Following the relevant events in this case, Santiago
surreptitiously tape-recorded conversations that he had with
various police officers who refer to D'Augostine as a "treacherous
motherf_____." See Pl.'s Exs. Vol. I (Transcript of Conversation
with T. Zatzariny) at 2. Santiago also claims that at the time
the Vineland police received the information from "Manny," the
confidential informant, he was under indictment for receiving
stolen property, and therefore cannot be regarded as "reliable."
See Pl.'s Exs. Vol. I (Certified Judgment of Conviction, dated
March 11, 1996) at 1. "Manny" received a probationary sentence
and was ordered to pay restitution. See id.*fn4
On October 14, 1997, Santiago filed a Complaint in this
Court, and, after seeking and receiving leave to file an amended
complaint, filed an Amended Complaint on April 15, 1999. See
Compl. (filed Oct. 14, 1997); Fourth Am. Scheduling Order (filed
April 7, 1999); Am. Compl. (filed April 15, 1999). In his Amended
Complaint, filed against the City of Vineland, Joseph Romano, the
former Mayor of the City of Vineland, John P. Gallo, the former
Director of Public Safety of the City of Vineland, Mario Brunetta,
Jr., the Chief of Police of the City of Vineland, Paul Letizia,
John Fresne, and Dennis D'Augostine, sergeants in the Vineland
Police Department at all times relevant to the Amended Complaint,
and John Does 1-50, Santiago alleges the following claims: (1)
race discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. (Count One); (2) race
discrimination in violation of the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD") (Count Two); (3)
deprivation of his rights under the First, Fourth, Fifth, Sixth
and Fourteenth Amendments to the United States Constitution, in
violation of 42 U.S.C. § 1981, 1983, 1985, 1986 and 1988 (Count
Three); (4) discrimination based upon a perceived disability in
violation of the Americans with Disabilities Act, 42 U.S.C. § 12111,
et seq., and the N.J.LAD (Count Four); (5) false arrest and
malicious prosecution (Count Five); (6) retaliation in violation
of Title VII, the ADA and the N.J.LAD (Count Six); (7) breach of
contract (Count Seven); (8) intentional interference with his
contractual relationship (Count Eight); and (9) the tort of
"outrage" (Count Nine). The Defendants have moved for summary
judgment of the entire Amended Complaint.
As will be apparent from the analysis set forth below, the
task of this Court in deciding these motions for summary judgment
was needlessly complicated by the appallingly poor quality of
advocacy demonstrated by the attorneys in this case. Given the
disarray of the moving and opposing papers submitted by counsel,
this Court has struggled mightily to sort out the issues
presented. The briefs are poorly written and poorly researched.
Legal analysis is frequently absent. Instead, the Court has been
presented with conclusory generalizations supported by
intellectual laziness. Counsel have disserved their clients'
interests, wasted the Court's time, and needlessly protracted
II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
"On a motion for summary judgment, the court must determine
whether the evidence shows that `there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter
of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)
(citing Fed.R.Civ.P. 56(c)). "Any factual dispute invoked by the
nonmoving party to resist summary judgment must be both material
in the sense of bearing on an essential element of the plaintiff's
claim and genuine in the sense that a reasonable jury could find
in favor of the nonmoving party." Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-251 (1986)). "In opposing summary
judgment, a party `must do more than simply show that there is
some metaphysical doubt as to material facts,' Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
but a court should not prevent a case from reaching a jury simply
because the court favors one of several reasonable views of the
evidence." Abraham, 183 F.3d at 287. "[T]he judge's function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 249; see also Abraham, 183 F.3d at
287. "Thus, while the nonmoving party must present enough evidence
to demonstrate a dispute is genuine, all inferences in interpreting
the evidence presented by the parties should be drawn in favor of
the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v.
County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)).
"Cases that turn crucially on the credibility of witnesses' testimony
in particular should not be resolved on summary judgment." Id.
If the nonmoving party fails to oppose the motion by
written objection, memorandum, affidavits and other evidence, the
Court "will accept as true all material facts set forth by the
moving party with appropriate record support." Anchorage Assocs.
v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir.
1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)).
Even where the non-moving party has failed to establish a triable
issue of fact, summary judgment will not be granted unless
"appropriate." Fed.R.Civ.P. 56(e); see Anchorage Assocs., 922
F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure
requires that the case be evaluated on its merits, with summary
judgment being granted for the movants only if they are entitled
to a judgment as a matter of law. See Anchorage Assocs., 922
F.2d at 175.
The Defendants raise a myriad of arguments in support of
their motions for summary judgment. This Court shall address the
two summary judgment motions in the following order: (A) Failure
to Exhaust Administrative Remedies; (B) Santiago's Discrimination
Claims on Grounds of Race, Disability and Retaliation; (C)
42 U.S.C. § 1981, 1982, 1983, 1985, 1986 and 1988; (D) False Arrest;
(E) Malicious Prosecution; (F) Common Law Breach of Contract and
Intentional Interference with Contractual Relationship; (G) The
Tort of "Outrage;" and (H) Santiago's Claims for Punitive Damages.
A. Failure to Exhaust Administrative Remedies: Title VII
In support of their motions for summary judgment, the
Defendants first contend that Santiago failed to exhaust his
administrative remedies with respect to his claim of race
discrimination under Title VII of the Civil Rights Act of 1964.
Specifically, the Defendants argue that Santiago failed to submit
his claim first to the Equal Employment Opportunity Commission, in
violation of 42 U.S.C. § 2000e-5 (1994). Because Santiago failed
to oppose the motions for summary judgment on this ground, I shall
grant summary judgment, with respect to Santiago's Title VII race
discrimination claim, only if "appropriate." See Fed.R.Civ.P.
Before instituting an action under Title VII, a plaintiff
must timely file his claim with the EEOC and obtain a right to sue
letter from the agency. See 42 U.S.C. § 2000e-5 (1994). Such
conditions precedent are statutory, rather than jurisdictional,
prerequisites, comparable to a statute of limitations. See Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127,
1132, 71 L.Ed.2d 234 (1982); Angelino v. The New York Times Co.,
200 F.3d 73, 87 (3d Cir. 1999). Accordingly, claims under Title
VII can be dismissed for failure to exhaust such administrative
remedies. See Angelino, 200 F.3d at 87-88; Knoll v. Springfield
Township Sch. Dist., 699 F.2d 137, 145 (3d Cir. 1983), vacated on
other grounds, 471 U.S. 288, 105 S.Ct. 2065, 85 L.Ed.2d 275
A plaintiff is excused from exhausting his administrative
remedies when "the acts alleged in the subsequent . . . suit are
fairly within the scope of the prior EEOC complaint, or the
investigation arising therefrom." Antol v. Perry, 82 F.3d 1291,
1295 (3d Cir. 1996) (quoting Waiters v. Parsons, 729 F.2d 233, 237
(3d Cir. 1984) (per curiam)); see also Howze v. Jones & Laughlin
Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) (quoting
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.
In this case, Santiago filed a charge of disability
discrimination with the EEOC alleging that the City of Vineland
Police Department and Chief Mario Brunetta, Jr. discriminated
against him, by terminating his employment as a special law
enforcement officer and refusing to hire him as a police officer,
based upon his "[p]erceived [d]isability" of drug involvement.
Defs.' Ex. 21 at 1. In his Amended Complaint, however, Santiago
alleged, among other things, a claim of race discrimination under
It is clear that Santiago is not excused from exhausting his
administrative remedies with respect to his claim under Title VII
because his race discrimination claim is not within the scope of
either the EEOC charge or its reasonable investigation. In
Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984), the appellant
filed a general charge of retaliation with the EEOC and, following
her termination, subsequently alleged retaliatory discharge before
the District Court. See id. at 235-36. The District Court
dismissed the appellant's complaint because she had failed first
to file the retaliatory discharge claim with the EEOC. See id. at
236. The Court of Appeals for the Third Circuit reversed, holding
that the appellant's suit was not barred for failure to exhaust
administrative remedies because both "the core grievance —
retaliation — is the same" and, based upon the evidence in the
record, the retaliatory discharge claim had, in fact, fallen
within the scope of the EEOC's investigation. See id. at 238.
Subsequently, in Antol v. Perry, 82 F.3d 1291 (3d Cir. 1996),
the Third Circuit distinguished Waiters, holding that an
employee's gender discrimination claim was not subsumed within the
appellant's EEOC complaint based upon disability discrimination.
See id. at 1295. In so finding, the Court rejected the
appellant's argument that the disability charge encompassed the
gender claim because an EEOC investigation would have revealed the
gender issues. See id. at 1296. The Court held that "[t]he
investigation focused, quite properly . . . on the gravamen of
[appellant's] complaint — disability discrimination. Neither the
EEOC nor the [appellee] were put on notice of a gender
discrimination claim." Id.
Like the Court in Antol, I find that Santiago's Title VII
claim is not within the scope of his previously filed disability
charge or "the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination." Hicks v. ABT Assocs.,
Inc., 572 F.2d 960, 966-67 (3d Cir. 1978) (quoting Ostapowicz,
541 F.2d at 398-99); see also Robinson v. Dalton, 107 F.3d 1018,
1025-26 (3d Cir. 1997). Quite simply, the facts associated with
Santiago's racial identity are separate and distinct from those
associated with his "perceived disability" based upon his alleged
involvement with drugs. In addition, there are no allegations
set forth in the charge that would put the EEOC on notice that
Santiago was also the victim of discrimination based upon his
race. Santiago checked only the "Disability" box on the EEOC
charge and his allegations refer only to discrimination based upon
a "[p]erceived [d]isability." See Defs.' Ex. 21; see also Mullen
v. Topper's Salon and Health Spa, Inc., 99 F. Supp.2d 553, 556
(E.D.Pa. 2000). Consequently, a reasonable EEOC investigation would
not have included Santiago's Title VII claim. Accordingly, I find
that Santiago failed to exhaust his administrative remedies with
respect to his Title VII claim and, therefore, I shall grant
summary judgment on Count I of the Amended Complaint.*fn6
B. Santiago's Discrimination Claims on Grounds of Race,
Disability and Retaliation
Turning now to the merits of the Amended Complaint, Santiago
alleges that his discharge and the Defendants' continued refusal
to hire him as a Vineland Police Officer violated the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 1981 and 1983, and the
New Jersey Law Against Discrimination ("NJLAD") because the
actions of the Defendants were impermissibly predicated upon his
race, a perceived disability, and were in retaliation for
Santiago's act of filing a charge of discrimination with the EEOC.
As a preliminary matter, the legal analysis governing claims
of discriminatory treatment in the employment context under these
federal and state statutes is the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973) and its progeny, Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct.
1089, 1093, 67 L.Ed.2d 207 (1981) and St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407
(1993). See Shaner v. Synthes (USA), 204 F.3d 494, 500 (3d Cir.
2000) (finding the Title VII McDonnell Douglas burden-shifting
rules applicable in the ADA context); Stewart v. Rutgers, The
State University, 120 F.3d 426, 432 (3d Cir. 1997) (citing
Patterson v. McLean Credit Union, 491 U.S. 164, 186
(1989)) (finding McDonnell Douglas-Burdine framework applicable to
claims under 42 U.S.C. § 1981 and 1983); Lawrence v. National
Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996) (stating
that the same standards and burdens of proof are applicable to
N.J.LAD claims as are applicable
to ADA claims); Cinelli v. U.S. Energy Partners, 77 F. Supp.2d 566,
573 (D.N.J. 1999) (Simandle, J.) (applying framework to claims
under ADA and N.J.LAD); Mogull v. CB Commercial Real Estate Group,
Inc., 162 N.J. 449, 462 (2000) (citing Peper v. Princeton Univ.
Bd. of Trustees, 77 N.J. 55 (1978)) (finding framework applicable
to claims under N.J.LAD).
Under the McDonnell Douglas framework, a plaintiff has the
initial burden of establishing a prima facie case either by
providing direct evidence of intentional discrimination or
circumstantial evidence that would raise the inference that the
defendant's conduct was motivated by discriminatory animus. See
Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089; see also, Reeves
v. Sanderson Plumbing Prods., Inc., ___ U.S. ___, 120 S.Ct. 2097, 2106
(S.Ct. June 12, 2000). Generally, to establish a prima facie
case, the plaintiff must demonstrate that he: (1) belongs to a
protected class; (2) was qualified for the position; (3) was fired
or not offered the job; and (4) was replaced by a person outside
the protected group. See Hicks, 509 U.S. at 506, 113 S.Ct. 2742.
Once the prima facie case has been established, the burden
shifts to the defendant to produce a legitimate, nondiscriminatory
reason for the adverse employment action taken against the
plaintiff. See Reeves, 120 S.Ct. at 2106 (citing Burdine, 450
U.S. at 254, 101 S.Ct. 1089). This burden is one of production,
not persuasion. See id. (citing Hicks, 509 U.S. at 509, 113 S.Ct.
2742). The defendant satisfies this burden by introducing
evidence which, taken as true, would permit a trier of fact to
conclude that unlawful discrimination was not the reason for the
discharge or the failure to hire. See Burdine, at 254-56, 101
S.Ct. 1089. It is noteworthy that the defendant need not prove
that the proffered reason actually motivated its conduct. See id.
Rather, the evidence submitted by the defendant need only raise a
genuine issue of material fact as to whether it discriminated
against the plaintiff. See id. at 254 n. 7, 101 S.Ct. 1089.
If the defendant is successful in meeting this light burden,
the burden then rebounds to the plaintiff to prove, by a
preponderance of the evidence, that the defendant's proffered
explanation is a pretext for discrimination. See Hicks, 509 U.S.
at 507-508, 113 S.Ct. 2742; see also Reeves, 120 S.Ct. at 2106.
"[A]lthough the presumption of discrimination `drops out of the
picture' once the defendant meets the burden of production . . .
the trier of fact may still consider the evidence establishing the
plaintiff's prima facie case `and inferences properly drawn
therefrom . . . on the issue of whether the defendant's
explanation is pretextual.'" Reeves, 120 S.Ct. at 2106 (quoting
Hicks, 509 U.S. at 511, 113 S.Ct. 2742; Burdine, 450 U.S. at
255, n. 10, 101 S.Ct. 1089). The plaintiff must convince the
factfinder "`both that the reason was false, and that
discrimination was the real reason.'" Shaner, 204 F.3d at 501
(quoting Jones v. School Dist. Of Philadelphia, 198 F.3d 403,
412-13 (3d Cir. 1999) (internal citations omitted)). The Court of
Appeals for the Third Circuit has held that to discredit the
employer's proffered reason:
[T]he plaintiff cannot simply show that the employee's
decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent. Rather, the
non-moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherences, or
contradictions in the employee's proffered legitimate
reasons for its action that a reasonable factfinder
could rationally find them "unworthy of credence" and
hence infer "that the employer did not act for [the
asserted] non-discriminatory reasons."
1. Race Discrimination under 42 U.S.C. § 1981 and
1983 and the New Jersey Law Against Discrimination
In Counts Two and Three of the Amended Complaint, Santiago
alleges that he was discharged as a special law enforcement
officer and bypassed for employment as a Vineland Police Officer
on the basis of his race, in violation of 42 U.S.C. § 1981*fn7
and 1983*fn8 and the N.J.LAD. Recognizing that the
burden-shifting analysis of McDonnell Douglas and its progeny
govern this aspect of Santiago's case, the Defendants contend, in
their motions for summary judgment, that Santiago cannot establish
a prima facie case of discrimination because he was not qualified
for the position of Police Officer. The Defendants also contend
that even if Santiago is able to establish a prima facie case,
there are legitimate, nondiscriminatory reasons for Santiago's
discharge and bypass, including reliance on New Jersey's employee
selection administrative rule, the "Rule of Three." Finally, the
Defendants argue that Santiago is unable to establish the
necessary "pretext" to survive the motions for summary judgment.
The Defendants also raise qualified immunity and various liability
arguments. In opposition to the motions for summary judgment,
Santiago first contends that he was indeed qualified for the
position considering, among other things, his inclusion in the
Eligibles List. Conceding that the Defendants can satisfy the
second prong of the burden-shifting analysis, Santiago also
contends that the Defendants' legitimate, nondiscriminatory
reasons for the termination and bypass are pretext for
discrimination. For the reasons set forth below, I find that
genuine issues of material fact exist on both whether Santiago was
"qualified" and whether the Defendants' legitimate,
nondiscriminatory reasons for the termination and failure to hire
were pretext for discrimination. I shall, however, grant in part
the Defendants' motions for
summary judgment on Santiago's race discrimination claims on
a. The Prima Facie Case Analysis: Was Santiago
Under the McDonnell Douglas burden-shifting standard, as set
forth above, Santiago has the initial burden of establishing, by a
preponderance of the evidence, a prima facie case of
discrimination. To do so, the plaintiff must demonstrate, among
other things, that he was qualified for the position. In this
case, the Defendants only contend that Santiago is unable to
establish that he was qualified for the position of Vineland
Police Officer because: (1) Santiago's inclusion in the Eligibles
List did not bestow upon Santiago a right to the position of
Police Officer; and (2) the psychological report by Cumberland
County rendered Santiago "unqualified" for the position.*fn9
Santiago contends, on the other hand, that he was qualified
because he met the New Jersey Civil Service requirements,
maintained a clean criminal record, was of good character, and had
been reappointed a number of times as a special law enforcement
officer for the City of Vineland.
In analyzing whether Santiago was qualified for the position
of a Vineland Police Officer, this Court "must confine its inquiry
to the objective qualifications related to the position of police
officer." Watson v. City of Salem, 934 F. Supp. 643, 654 (D.N.J.
1995) (Simandle, J.) (citing Ezold v. Wolf, Block, Schorr and
Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992); see also Sempier v.
Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) ("`[w]hile
objective job qualifications should be considered in evaluating
the plaintiff's prima facie case, the question of whether an
employee possesses a subjective quality . . . should be better
left to' consideration of whether the employer's nondiscriminatory
reason for discharge is pretext") (quoting Weldon v. Kraft, Inc.,
896 F.2d 793, 798 (3d Cir. 1990)).
This Court finds it incredible that neither party cites to
N.J.S.A. 40A:14-122 (West 1993), entitled "General qualifications
of members of the police department and force; temporary
appointments; absences from duty," which provides that:
Except as otherwise provided by law, no person shall be
appointed as a member of the police department and
force, unless he:
(1) is a citizen of the United States;
(2) is sound in body and of good health sufficient
to satisfy the board of trustees of the police
and firemen's retirement system of New Jersey
as to his eligibility for membership in the
is able to read, write and speak the English
language well and intelligently;
is of good moral character, and has not been
convicted of any criminal offense involving
moral turpitude. . . .
Id.; see also Watson v. City of Salem, 934 F. Supp. 643, 654-55
(D.N.J. 1995) (Simandle, J.).
In this case, I find that Santiago has at least raised a
genuine issue of material fact that he is qualified. The summary
judgment record reveals that Santiago is a citizen of the United
States, see Pl.'s Ex. Vol. I (special law enforcement officer
application) at 1 (stating that Santiago was born in Vineland, New
Jersey), and that he has a clean criminal record, see Defs.' Ex. 2
at 4; Defs.' Ex. 3 at 4. Santiago asserts, and the Defendants do
not dispute, that he has a good general character. See Pl.'s Br.
at 24-25. In addition, it is not disputed in this case that
Santiago is not proficient
in the English language or that he is not physically fit.
While the Defendants are correct that the mere inclusion of a
candidate's name on the Eligibles List does not confer upon him a
vested right to employment, see In re Crowley, 193 N.J. Super. 197,
210 (App. Div. 1984); see also Nunan v. New Jersey Dep't of
Personnel, 244 N.J. Super. 494, 497-98 (App. Div. 1990), a
candidate's right to employment is separate and distinct from the
issue of whether, for purposes of a discrimination claim under
42 U.S.C. § 1981 and 1983 and the N.J.LAD, a candidate was "qualified"
for the position. In fact, while this Court does not view the
regulations as dispositive of the issue of Santiago's status as a
"qualified" applicant, the New Jersey Administrative Code defines
"Eligible list" as "a roster compiled or approved by the
Department of Personnel of persons who are qualified for
employment or reemployment." N.J. Admin. Code tit. 4A, § 1-1.3
(Supp. 1998) (emphasis added).
Instead of contending that Santiago was not qualified for the
position of Vineland Police Officer under one of the requirements
set forth in N.J.S.A. 40A:14-122, the Defendants assert that
Santiago was psychologically unqualified. They have failed,
however, to alert this Court to any mental fitness requirement for
municipal police officers analogous to that of applicants for the
position of state police officer. See N.J.S.A. 53:1-9 (providing
that "[n]o one shall be appointed [to be a member of the State
Police] who has not applied for and taken an examination to the
satisfaction of the superintendent, evidence of his mental and
physical fitness and ability to perform the duties of a member of
the State Police"); see also State of New Jersey v. State
Troopers Fraternal Ass'n, 134 N.J. 393, 415 (1993) ("[u]nlike
police officers in municipalities subject to Civil Service whose
appointment and promotions are governed by the merit-appointment
process, see N.J.S.A. 11A:4-1 to -16 and N.J.S.A. 40A:14-122.4,
applicants for appointments to the State Police are required to
establish to the satisfaction of the Superintendent their mental
and physical fitness and general qualifications").
In fact, although neither party so argued, the State
regulations governing this case provide that an appointing
authority*fn10 has the discretion to require all of the
eligibles to undergo a medical or psychological exam. See N.J.
Admin. Code tit. 4A, § 4-6.5 (Supp. 1998). If that discretion is
exercised, the appointing authority may only require such exams
after an offer of employment has been made and prior to
appointment, and may, if it so chooses, condition the offer on the
results of the examination. See id. The appointing authority
must then follow an intricate procedure to compel the New Jersey
Department of Personnel to remove a candidate's name from the
Eligibles List for reasons of medical or psychological
disqualification. See id. In this case, neither party provides
any evidence that the City of Vineland required psychological
exams for all of the candidates named on the Eligibles List and in
fact, Sergeant Fresne, in drafting Santiago's background
investigation report, relied on a psychological report conducted
not in connection with Santiago's current application but in
connection with his application with the Cumberland County
Confining my inquiry then to the "objective qualifications
related to the position of police officer" as set forth in
N.J.S.A. 40A:14-122 (West 1993), I find that Santiago has
sufficiently raised a genuine issue of material fact that he was
qualified for the position of Vineland Police Officer.
b. The Defendants' Legitimate, Nondiscriminatory
Under the McDonnell Douglas burden-shifting standard, I must
determine next if the Defendants have raised
legitimate, nondiscriminatory reasons for Santiago's discharge
and bypass. The Defendants have raised only one argument in support
of Santiago's discharge, namely, that a confidential informant named
"Manny" reported that Santiago had in the past sold illegal drugs.
In addition to that argument, the Defendants raise three others as
nondiscriminatory reasons for their bypass of Santiago for hire as
a Police Officer: (1) New Jersey's "Rule of Three," see N.J.S.A.
11A:4-8 (West 1993); N.J. Admin. Code tit. 4A, §
4-4.8(a)(3) (Supp. 1999),*fn11 bestows upon the Vineland Police
Department the discretion to select one individual among the top
three available and therefore, the bypass of Santiago was
legitimate; (2) citizen Robert Carr came forward with a statement
that Santiago had sold drugs in high school; and, (3) based upon
the background investigation he conducted, Sergeant Fresne did not
recommend Santiago for employment as a Police Officer. See Br. in
Supp. of Notice of Mot. for Summ. J. on behalf of Defs. City of
Vineland, Joseph Romano and John Gallo at 24; see also Br. in
Supp. of Notice of Mot. for Summ. J. on behalf of Defs. Brunetta,
Letizia, Fresne and D'Augostines [sic] at 13.*fn12 Because
Santiago has conceded, for purposes of these motions, that the
Defendants have stated legitimate, nondiscriminatory reasons for
the discharge and bypass, I need not address whether the
Defendants have met their relatively light burden. Moving then to
the heart of this inquiry, for the reasons set forth below, I find
that Santiago has sufficiently raised a genuine issue of material
fact that the legitimate, nondiscriminatory reasons for his
discharge and bypass are pretext for discrimination.
c. Pretext for Discrimination
As set forth above, at the pretext stage of the McDonnell
Douglas analysis, Santiago must establish that a genuine issues of
material fact exists that the Defendants' proffered reasons for
the discharge and failure to hire are false or that discrimination
was more likely than not the real reason. To discredit such
[T]he plaintiff cannot simply show that the employee's
decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent. Rather, the
non-moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherences, or
contradictions in the employee's proffered legitimate
reasons for its action that a reasonable factfinder
could rationally find them "unworthy of credence" and
hence infer "that the employer did not act for [the
asserted] non-discriminatory reasons.
Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir. 2000) (quoting
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (internal
citations omitted)). In short, I find that Santiago has raised
genuine issues of material fact such that a rational factfinder
could find all of the Defendants' proffered reasons "unworthy of
i. The Narcotics Allegations
First, Santiago relies on three pieces of inadmissible
hearsay for his contention that D'Augostine is dishonest: (1)
officer Timothy Zatzariny told Santiago that D'Augostine was a
"treacherous mother____er," Pl.'s Ex. Vol. I (Transcript of
Conversation between Santiago and T. Zatzariny) at 2; (2) officer
Edgar Zatzariny told Santiago that unnamed superiors were "[f]___ing
with a guy's career when it's not true," Pl.'s Ex. Vol. I
(Transcript of Conversation between Santiago and E. Zatzariny) at
1; and (3) officer Frank Lopergolo told Santiago that at some
point in time, D'Augostine had unlawfully planted evidence during
a drug raid, see Pl.'s Ex. Vol. II (Santiago 12/20/1998 Dep.) at
180-182. Simply stated, this supposed "evidence" is insufficient
to establish pretext in this case because this Court may rely only
on evidence admissible at trial. See Sempier v. Johnson &
Higgins, 45 F.3d 724, 727 (3d Cir. 1995) (stating that summary
judgment is appropriate when "admissible evidence" fails to
demonstrate the existence of a genuine issue of material fact and
the moving party is entitled to judgment as a matter of law);
Williams Borough of West Chester, Pennsylvania, 891 F.2d 458,
466 n. 12 (3d Cir. 1989). In this case, the three statements are
Santiago next argues that evidence of certain investigatory
techniques employed by D'Augostine raises a genuine issue of fact
that D'Augostine fabricated the drug allegations against him. For
example, Santiago submits the affidavit of James Sinclair, who
stated that D'Augostine contacted him and solicited negative
information on Santiago, see Sinclair Aff. at ¶ 4, and the
affidavits of Robin Lynn Carney and Freddy Oquendo who state that
at some point in December, 1998, D'Augostine told Oquendo that, in
exchange for information on Santiago, D'Augostine would ensure
that traffic charges pending against Oquendo were dismissed. See
Oquendo Aff. at ¶ 4; see also Carney Aff. at ¶ 6.
The summary judgment record in this case reflects that before
Santiago's discharge, defendant Brunetta ordered D'Augostine to
attempt to update the drug allegations made against Santiago by
the informant, "Manny." See Defs.' Ex. 41 at 71; Defs.' Ex. 8.
In light of Brunetta's order, therefore, D'Augostine's interview
of Sinclair, who was Santiago's supervisor at Sears, was
However, D'Augostine's contact with Carney and Oquendo in
December, 1998, which was during the discovery phase of this case,
is sufficient to raise a genuine issue of material fact. In its
base form, the argument made by Santiago is that D'Augostine
fabricated the allegations against him. The two sworn affidavits
reveal that during the discovery phase of this case, a named party
to the lawsuit promised immunity from the enforcement of State
laws in exchange for detrimental information concerning the
plaintiff, without justification. See Carney Aff. at 6; Oquendo
Aff. at 4. Santiago therefore has raised a genuine issue of
material fact as to whether the Defendants' proffered reason for
his discharge and bypass, reliance on the confidential informant
report, was pretext for discrimination. Specifically, this
inconsistency, as well as the others set forth below, could lead a
reasonable factfinder to conclude that D'Augostine fabricated the
drug allegations against Santiago and to infer that the drug
allegations were unworthy of credence.
Santiago also contends that "Manny" was not a reliable
confidential informant because he was under indictment for a crime
at the time he allegedly reported the information concerning
Santiago to D'Augostine. In support of this contention, Santiago
submits the judgment of conviction of "Manny,"*fn13 which
provides that following his December 4, 1994 arrest, on April 6,
1995, he was indicted and pled not guilty to theft, in violation
of N.J.S.A. 2C:20-3, and criminal attempt, in violation of
N.J.S.A. 2C:5-1. See Pl.'s Ex. Vol. I (Judgment of Conviction) at
1. On March 11, 1996, "Manny" entered a guilty plea and was
convicted of receiving stolen property, in violation of N.J.S.A.
2C:20-7. See id. In response, the Defendants simply state that
the fact that "Manny" had a criminal record "comes as no surprise
to anyone involved who has dealt with confidential informants
connected to the drug world." Reply Br. on behalf of Defs. City
of Vineland, Joseph Romano and John Gallo at 7.
This "common thread" of criminal activity among informants
does not negate the fact that, at the time "Manny" provided the
information involving Santiago to D'Augostine, he was under
indictment for a State crime. It follows then that "Manny's"
otherwise established veracity would reasonably be called into
question: was "Manny's" motive in reporting two-year-old drug
allegations to win immunity from prosecution? Did D'Augostine know
of "Manny's" indictment? Clearly, these are questions this Court
cannot answer at this phase of the litigation. Clearly, then,
genuine issues of material fact exist with respect ...