On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-6324-01.
Before Judges A. A. Rodriguez, Weissbard and Hoens.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Bruno Bumbaca, appeals from an order of summary judgment dismissing his complaint against defendants, Township of Edison, Township of Edison Fire Department (EFD), and Fire Chief Robert Campbell, which had alleged that defendants discriminated against plaintiff based upon familial status in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to hire plaintiff as a full-time paid firefighter (count one), breached a contract by failing to hire him (count two), and discharged him wrongfully in violation of public policy (count three). Plaintiff sought specific performance appointing him as a full-time firefighter with pay retroactive to the date of original hire, lost wages, benefits and monetary loss, compensatory and punitive damages, and counsel fees and costs.*fn1 We affirm.
The EFD is made up of both volunteer and paid firefighters. Plaintiff has served as a volunteer firefighter with the EFD since 1995. To become a volunteer firefighter, an applicant must complete an application, pass a medical examination, pass a background check, and complete training. An individual will be precluded from becoming a volunteer firefighter only if he or she has a medical problem that prevents him or her from performing the required duties or if he or she has been convicted of arson. Plaintiff was uncompensated financially for his work as a volunteer firefighter. He did, however, receive benefits given to all volunteer firefighters, including insurance coverage, while responding to fire calls, training, and a small stipend.
Pursuant to N.J.S.A. 40A:14-44, any appointment to the paid fire department must be from members of the volunteer company who have served as active firefighters for at least two years. To be classified as"active," volunteer firefighters must respond to twenty-five percent of all fire calls annually. The EFD calculates the yearly percentage of calls made by each firefighter every November.
Every two or three years, the EFD administers a series of tests to all active volunteers interested in becoming paid firefighters. These tests include a written test, a physical performance test, an initial and final oral examination, and an essay test. The composite scores are used to rank individuals to determine the order of appointment to paid firefighter positions. The rankings are then recorded on a list. When a position becomes available, the person ranked first becomes eligible for appointment and proceeds through the application process, which includes a medical examination, a psychological evaluation, and a criminal background check. The Edison Municipal Code mandates that a candidate not be eligible for hire if he or she fails any one of the required tests. However, an individual who fails a medical or psychological examination may be placed on the next list, when compiled, and be retested at that time. If the highest ranked candidate on the list forfeits appointment by failing one of the tests, the EFD proceeds to the next individual on the list, and so on.
On June 30, 1998, defendant was placed fifteenth out of forty-four on the ranking list. There were fifteen openings for paid firefighter positions during the three-year period that the June 30, 1998 list was in effect. Between June 1998 and December 2000, the EFD hired eight paid firefighters and passed over two individuals. Three of the eight hired were related to current or former Edison employees.
In December 2000 or January 2001, the EFD determined that it could hire an additional six paid firefighters. The next nine candidates on the list were, in order: Paul Toth, Wayne Enoch, Michael Maurath, Anthony Vicidomini, plaintiff, Raymond Ricci, William Pelligrino, Allan Yourstone, Jr., and Herbert Eayres. Ricci chose not to apply.
Defendant was called into Chief Campbell's office with the other seven candidates, given a uniform and was told he was"getting hired," not that he was hired. Plaintiff knew all eight candidates were not going to receive jobs because the Township had only six openings. According to plaintiff, EFD Training Officer Bert Sofield told him and the others not to answer calls as volunteers"so as not to jeopardize [their] hires as full-time firefighters by getting hurt."
Plaintiff passed the required medical examination on January 22, 2001. On February 6, 2001, plaintiff underwent the psychological examination at the Institute for Forensic Psychology (IFP). All eight candidates were examined by IFP, which has been conducting examinations for Edison Township since at least 1995. Amie B. Wolf, Ph.D., a New Jersey licensed psychologist, was the principal examiner in plaintiff's evaluation. The examination consisted of eight different psychological tests and a personal interview with Dr. Wolf.
Dr. Wolf concluded that plaintiff did not possess the psychological characteristics required for the position sought. She summarized her findings as follows:
Overall, the candidate exhibited a number of areas of concern. One is the arrest for drugs and assault. When this is combined with the fact that he continues to drink twice a week, it does raise a question about his commitment to abstinence. His performance and motivation in high school, as well as his lack of college education do not demonstrate ongoing commitment to developing himself and developing his level of serious-mindedness. He endorsed numerous critical items on the'COPS' test that suggest areas of difficulty. He also endorsed gender bias items which were of concern.
Overall, although the candidate has many positive qualities in some areas, there are enough areas of concern that at present he cannot be recommended for appointment. The"COPS" (Candidate and Officers Personnel Survey) test is a research based biographical data instrument. The COPS test predicted that plaintiff's probable success, as a public safety officer, is"very poor."
Chief Campbell informed plaintiff"the day before the hiring" that Dr. Wolf had not recommended him for a firefighter's position and, as a result, he could not be appointed. Campbell testified that if plaintiff had passed the exam, he would have hired him. Campbell also certified that he had no contact with IFP or Dr. Wolf regarding the psychological examination. Another of the eight applicants, Anthony Vicidomini, was passed over for appointment based ...