On appeal from the Superior Court of New Jersey, Law Division, Union County, L-4177-02.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Plaintiff Maria Todaro appeals the post-trial order entered on September 23, 2005, denying her application for instatement to the position of Superintendent of Weights and Measures (Superintendent), County of Union (County), after a jury returned a verdict in her favor finding that plaintiff's political affiliation was the reason she was not originally promoted to the position. Because we conclude the record is inadequate to support the trial court's conclusion that instatement was not the appropriate remedy and because we also conclude that the rightful place remedy fashioned by the court fails to make her whole, as required under 42 U.S.C. § 1983, we reverse and remand for further proceedings.
The salient facts presented to the jury are as follows. Plaintiff is an Assistant Superintendent of Weights and Measures, having held this classified civil service position since 1993. At the time of her appointment, there was one other Assistant Superintendent, Joseph Freitas. In 1998, Michael Florio passed the civil service examination and was also hired as an Assistant Superintendent. Plaintiff is a republican. Florio is a democrat and the son of a prominent Union County democrat. All three Assistants reported to the Superintendent, Thomas Karamus, who answered to Harold Gibson, the Director of Public Safety.
In 2002, Superintendent Karamus retired. Since his position was classified, prospective candidates were required to undergo a civil service examination. Plaintiff and the other two Assistant Superintendents took the exam. Freitas achieved the number one ranking on the test, while plaintiff finished second. Florio ranked third, scoring 2.33 points less than plaintiff.
After plaintiff began hearing rumors that the decision would be made based on political affiliation, she started contacting various people, including Gibson, who met with her but refused to provide any assurance that political affiliation would not be determinative. Florio bragged to Freitas about his father's political influence and that he was going to be appointed to the position. When plaintiff received notice that Florio had been appointed as Superintendent, she filed a six-count complaint against the County, Gibson, and George DeVanney,*fn1 the County Manager, alleging political discrimination, in violation of 42 U.S.C. § 1983 (§ 1983) (Count One); age, sex, and national origin discrimination, in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42 (Counts Two, Three and Four); violation of public policy of the State of New Jersey (Count Five); and intentional infliction of emotional distress (Count Six).
Before submitting the case to the jury, plaintiff voluntarily dismissed all counts in the complaint except her claim of political discrimination. The jury returned a verdict in her favor, answering "yes" to a special interrogatory that asked whether defendants denied the position to plaintiff based solely upon her lack of affiliation with the Democratic Party, contrary to § 1983. The jury awarded plaintiff $350,000 in compensatory damages and $28,000 in back pay. The jury also found that plaintiff was entitled to punitive damages.
Prior to the hearing on punitive damages, the parties entered into a settlement agreement that included the following provision:
This settlement resolves all of the issues arising out of the lawsuit except for the injunctive relief as follows. Ms. Todaro may apply for injunctive relief, in light of the jury verdict and Ms. Todaro's status as the prevailing party in this matter, in the form of instatement/promotion to the position of Superintendent of Weights and Measures, and/or "front Pay" or salary increase, days off identical to that granted to Florio, pension benefits and other benefits granted to Florio. . . . In short, this injunctive relief application shall be considered on the merits in light of the jury verdict and nothing in this partial settlement shall operate as a waiver of any rights Todaro would have had or currently does possess otherwise. . . . All parties retain any and all appeal rights with respect to this application motion only.
Pursuant to the agreement, plaintiff moved for instatement as Superintendent, pay and vacation differential, pension benefits and counsel fees, or, alternatively, front pay.
On the return date of the motion, the court, based solely upon the submissions of the parties, issued an oral decision determining that neither instatement nor front pay were appropriate equitable remedies. Specifically, the court found that instatement, although the preferred equitable remedy for § 1983 promotion violations, was inappropriate because the position had been filled by Florio, a non-party in the underlying litigation who the court concluded would be substantially harmed if removed or demoted from the position. Further, relying upon Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 833 (3d Cir. 1994), the court refused to award front pay as an alternative to instatement because plaintiff failed to present any evidence related to front pay during the trial.
Having rejected instatement and front pay, the court next considered the "rightful place" remedy. This form of equitable relief requires that the wronged employee, in this case plaintiff, await the next comparable job opening and, while doing so, receive compensation at the salary the employee would have earned but for the illegal discrimination. Granziel v. City of Plainfield, 279 N.J. Super. 104, 108-09 (App. Div.), remanded on other grounds 142 N.J. 513 (1995). The court concluded that "under the present circumstances, the rightful place theory in lieu of bumping or front pay is the appropriate remedy." The court ordered that "plaintiff's wages and pension benefits shall be elevated to the levels of ...