On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-787-00.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Holston, Jr.
This appeal by the City of Trenton is from judgments on different employment-related claims by two members of the Trenton Police Department.
Jeanne Klawitter, who is Caucasian, was a patrol level detective. She asserted a claim of reverse discrimination based on race under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because she was denied a promotion to sergeant in favor of another officer, James Ingram, an African-American. The jury found in Klawitter's favor, and awarded her $79,538 as compensation for emotional distress damages. The judge then awarded Klawitter $21,993.43 in prejudgment interest and $33,846.45 in attorney's fees and costs. The City's new trial motion, on the grounds that the verdict was against the weight of the evidence as to both liability and damages, was denied.
The other claim was brought by Dennis DeBonis, who is also Caucasian. He retired from the police force, but less than thirty days after the effective date he sought to cancel his retirement and requested reemployment to his former position as a sergeant. The City informed him he would have to be placed on a reemployment list and could not be considered for the sergeant vacancy then available, which would be filled from the existing promotional list. DeBonis claimed the City wrongfully rejected his decision to cancel his retirement and his request for reemployment, in violation of a Department of the Treasury, Division of Pensions and Benefits regulation, N.J.A.C. 17:4-6.3, that authorizes cancellation of retirement within that timeframe. DeBonis also claimed he was denied the vacant sergeant position in favor of Ingram on the basis of his race, in violation of the LAD. The Law Division entered partial summary judgment in DeBonis' favor on the issue of liability on his N.J.A.C. 17:4-6.3 claim. DeBonis' claims were tried jointly with Klawitter's. On his N.J.A.C. 17:4-6.3 claim, the only trial issue was damages and the jury awarded DeBonis $35,488. The judge then added prejudgment interest of $9,812.06. The jury rejected DeBonis' LAD claim, and DeBonis has not cross-appealed from the no cause for action on that claim.
With respect to DeBonis, the City appeals from the partial summary judgment as to liability on his wrongful failure to rehire claim. The City contends that DeBonis' right to cancel his retirement within thirty days under applicable pension regulations did not entitle him to immediate reemployment in his former position, which, instead, was controlled by priorities promulgated by civil service laws and regulations. We agree with the City and reverse the judgment in favor of DeBonis.*fn1
With respect to Klawitter, the City argues that the jury's verdict was against the weight of the evidence as to both liability and damages. We reject the City's argument and affirm the judgment for damages and prejudgment interest. The City also appeals from the attorney's fee award, contending that it included compensation for some services rendered to DeBonis. From our review of the record, this argument contains sufficient merit to warrant reversal of the fee award and remand for reconsideration.
The facts relevant to Klawitter and DeBonis are, to some extent, intertwined, and are otherwise separate. Because the principal appeal issue regarding Klawitter is whether the verdict was against the weight of the evidence, a detailed factual recitation with respect to her is necessary. The controlling appeal issue as to DeBonis is a matter of law, involving the interpretation of civil service and pension laws and regulations, thus requiring a less detailed factual recitation as to him.
Klawitter became a Trenton police officer in 1988, beginning as a patrol officer and later advancing to the position of detective. Trenton is a civil service municipality. Klawitter was first eligible to take the sergeant's exam in 1994. She took the exam and passed it, and was placed on the sergeant's promotional list. Klawitter pursued educational opportunities made available through the department, and she twice received commendations for her service.
In the Fall of 1998, the Department anticipated five sergeant vacancies, four by virtue of retirements effective November 1, 1998, including that of DeBonis, and the fifth expected on December 1, 1998, due to the expected retirement of Lieutenant Douglas Rowland, whose lieutenant position would be filled by the promotion of an existing sergeant. Rowland, however, changed his retirement date to February 1, 1999.
The City created a fifth sergeant vacancy, to be available in December 1998. It did so by determining that the position of Sergeant Richard Girman was vacant. Girman was under indictment, with a trial date looming. He had been on unpaid suspension since February 15, 1997. It was very unusual, and perhaps unprecedented, for the City to create a vacancy with respect to a position held by a suspended officer. Nevertheless, the fifth sergeant vacancy was thus established.
Under civil service employment rules, promotions to the five sergeant vacancies would be made from the current promotional list. On that list, Klawitter had the same ranking as Officer John Dehart, a Caucasian, and Ingram. The ranking is based upon a combination of test scores on the sergeant's exam and seniority. Klawitter and Dehart joined the department on the same day, and their seniority was therefore identical. They each scored seventy-seven on the exam. With their seniority factored in, their overall score was 78.62. Ingram had four years greater seniority than Klawitter and Dehart. His test score was seventy-six, but with his seniority factored in, his overall score was also 78.62.
Four other officers had higher rankings than the three tied officers, and they were awarded the four sergeant positions effective November 1, 1998.*fn2
It is the filling of the fifth vacancy that is the subject matter of Klawitter's claim. As of November 1998, the City's public safety director was Dennis Keenan, and he was responsible for "breaking the tie" and selecting between the three officers.
Keenan had been employed by the City since 1962. But until the Spring of 1998, his service had all been in the fire department, where he worked his way up through the ranks to the position of fire chief.
Keenan acknowledged that he was under great pressure to make a decision quickly, but he denied that he was under pressure to promote Ingram. Because of his lack of experience on an issue such as this, he consulted with the personnel officer for the City and the Department of Personnel for advice on how to break the tie. He was advised that no criteria for the decision existed and that he should choose the candidate he believed would be best suited for the position. According to Keenan, he reviewed the officers' employment records and spoke with their superior officers. He also decided to interview each of the officers. Because of his lack of police background, he would not be able to ask questions of a technical nature, but planned to use the interviews merely to assess the demeanor of the candidates.
All three interviews were brief, lasting between ten and twenty-five minutes. When Klawitter entered the room, Keenan recognized her as playing on a softball team with his daughter. They chatted briefly about that subject. Klawitter then asked Keenan: "Is this interview or so-called interview a waste of my time, because I heard that it was." Klawitter's question was prompted by rumors that the decision to hire Ingram had already been made. According to Klawitter, Keenan responded by stating that he "was under a lot of pressure to hire the black candidate." Hearing this response, Klawitter felt "crushed" and "devastated" that she would not be given a fair chance for the promotion. During the remainder of the session, which Klawitter claimed lasted a total of only ten minutes, there was no discussion about Klawitter's job performance as a police officer or her qualifications for sergeant.
Dehart also reported that his interview was short, lasting about fifteen to twenty minutes. Keenan asked Dehart to speak a little bit about himself, but did not ask anything specific about his qualifications for the sergeant position.
Responding to this testimony from Klawitter and Dehart, Keenan stated that the interviews of all three candidates were about the same length, fifteen to twenty-five minutes. He acknowledged that he discussed personal matters as opposed to job related issues, which was consistent with the limited purpose for which he was conducting the interviews. He denied telling Klawitter that he was under pressure to promote an African-American officer or Ingram specifically, although he acknowledged that she asked whether the interview was a waste of time. During his trial testimony, no one asked Keenan what he did say in response to Klawitter's question.
According to Keenan, he ranked Ingram and Dehart equal in terms of demeanor, with Klawitter ranked slightly lower based upon her question as to whether the interview was a waste of time, which he believed was inappropriate. He found Ingram the most impressive candidate based upon his experience as a detective in the major crimes bureau, which came at the direct appointment of the chief, thus indicating the chief's high level of confidence in Ingram's abilities, the good reviews Keenan received about Ingram from his superior officers, and Ingram's four years greater seniority.
By letter of December 18, 1998, Keenan advised Ingram of his selection to fill the fifth vacancy, effective December 23, 1998. By a letter of the same date, Keenan advised Klawitter that, while all three eligible applicants were considered "qualified," Ingram was considered "best suited for the promotion at this time."
Klawitter claimed that she, Ingram, and Dehart were equally qualified for the promotion based upon their equal ranking on the promotional list, and Ingram was selected based upon his race.
In support of their race discrimination claims, both Klawitter and DeBonis argued that the police department went out of its way to ensure that there would be a sergeant's position available in December 1998, and engaged in an unusual and perhaps unprecedented action with respect to Girman in order to create a fifth vacancy after Rowland delayed his retirement from December 1, 1998 to February 1, 1999. They claim that this was all done to assure that a vacancy would be available in December 1998 and would be filled by Ingram. Indeed, although the record does not reveal the disposition of Girman's criminal charges, it does reveal that he ultimately returned to Trenton's police force.
Further, plaintiffs presented evidence suggesting that the City manufactured the Girman vacancy expressly for Ingram's benefit. A new promotional eligibility list for sergeant would be effective on February 11, 1999. The test for that list had been given some months earlier. Klawitter and Dehart had taken the test and were on the list. Ingram, however, was not on that list. Therefore, Ingram's eligibility for promotion to sergeant would expire with the expiration of the current list on January 7, 1999. Thus, according to plaintiffs, this created urgency to promote Ingram before the opportunity expired.*fn3
Plaintiffs also presented the testimony of former police chief Ernest Williams. Williams stated that in late Summer or early Fall 1998, he was summoned to the mayor's home and asked to accelerate his anticipated April 1, 1999 retirement date in order to create a vacancy down the department's chain of command. According to Williams, the mayor wanted to promote Ingram to sergeant and he was looking for a way to create a vacancy before the current promotional list expired. Williams said this conversation was unusual because normally the mayor did not discuss promotional issues with him. Williams refused to change his retirement date.
Trenton Mayor Douglas Palmer testified and acknowledged that he was aware in the Fall of 1998 of the sergeant vacancy and that he discussed it with Williams. However, the mayor claimed he did so only in relation to an allegation that came to his attention that police officers were paying superior officers to retire in order to create a vacancy into which they could be promoted. More specifically, the mayor claimed he had been approached at a Mercer/Trenton African-American Chamber of Commerce event by a Sergeant Bernard Hill, who asked whether Ingram was going to have to pay for his promotion. The mayor asked Hill to explain what he meant by that question, and expressed surprise that such a practice was occurring in the department. The mayor denied asking Williams to retire early in order to create a promotional opportunity for Ingram.
The mayor admitted that "Jimmy" Ingram was a "good friend" of his, that Ingram's wife was the mayor's former girlfriend, and that he thought it would be "nice" if Ingram were promoted. The mayor also acknowledged that he had been pressured by members of the community to promote Ingram. Moreover, the mayor, who was the first African-American mayor of Trenton, "certainly knew that we needed more diversity, more women, more African-Americans and Latinos in upper ranks" of the police department. He acknowledged that "people may have known that [he] wanted more diversity." Indeed, it was public knowledge that the mayor felt strongly about this issue. The mayor commented that the City was operating under a consent decree that required improvement in its hiring practices and promotion opportunities for minorities and women in the fire department. The mayor's chief of staff, Gwendolyn Harris, also testified and mentioned the existence of a consent decree, and suggested it applied to the police department as well, but she could give no particulars, such as when it was entered, the time period of its effectiveness, or its provisions. The mayor denied that he ever manipulated the system in order to promote a woman or minority, and he denied ever instructing Keenan to appoint Ingram or even discussing the subject with Keenan.
During the same time these events were occurring, the mayor supported a public referendum under which the police department would be managed by a civilian police director as opposed to a police chief who had been promoted through the civil service system. In this manner, upon Williams' retirement, the mayor could circumvent the requirement to promote one of the three deputy chiefs. According to the mayor, he did not deem any of these three individuals, all of whom are Caucasian, sufficiently qualified for the top job. He believed they were too laid back and that new blood should be brought in to shake up the organization. The referendum passed, and when the opportunity arose to choose the first civilian police director, the mayor appointed James Golden, who is African-American.
Finally, plaintiffs noted that the mayor and his chief of staff were copied on the letter advising Ingram of his promotion. Keenan claimed there was nothing unusual about that, stating that he typically copied the mayor, chief of staff, business administrator, chief city clerk, and personnel officer about promotion decisions, as a means of notifying them of the promotion ceremony. And, Keenan stated that neither the mayor nor anyone in the City administration told him they wanted Ingram promoted.
DeBonis joined the force in 1973. He was promoted to sergeant in 1990. In the Summer of 1998, he filed an application for retirement, which was approved by the Department of the Treasury, Division of Pensions and Benefits, with an effective retirement date of November 1, 1998.
The September 21, 1998 letter from the Division of Pensions and Benefits approving DeBonis' retirement application stated:
IN ACCORDANCE WITH LAW, YOU HAVE UNTIL THIRTY DAYS AFTER (A) THE EFFECTIVE DATE OF YOUR RETIREMENT, OR (B) THE DATE YOUR RETIREMENT WAS APPROVED BY THE BOARD OF TRUSTEES, WHICHEVER IS THE LATER DATE, TO MAKE ANY CHANGES TO YOUR RETIREMENT.
Similarly, the Police and Firemen's Retirement System handbook stated:
Approximately 1 Month Before Retirement
Your retirement will be presented to the Board of Trustees for approval. You will receive a Board approval letter and will have 30 days from the Board approval date or your effective retirement date (whichever is later) to cancel your retirement . . . .
By memorandum dated November 27, 1998, DeBonis wrote to police chief Ernest Williams and requested nullification of his retirement and reinstatement to the police department. DeBonis' position had already been filled. He specifically requested permission to fill the vacancy created by Girman's suspension. Keenan had already begun interviewing the three tied candidates for that position.
Keenan lacked experience in situations such as this. Initially, Keenan's representative instructed DeBonis to report for work on December 1, 1998. However, upon further investigation, which included consultation with the City personnel director and review of applicable statutes and regulations, Keenan concluded that once DeBonis' retirement papers had been processed and his position filled, he could only become reemployed by having his name placed on a reemployment list, and that the current promotional list would take precedence over a reemployment list. On the morning of December 1, 1998, Keenan telephoned DeBonis and informed him of this position. ...