December 20, 2007
BRIAN L. ROYSTER, PLAINTIFF-APPELLANT,
NEW JERSEY STATE POLICE, OFFICE OF THE ATTORNEY GENERAL, JOSEPH R. FUENTES, MARSHALL BROWN, TIMOTHY GOSS, THOMAS GILBERT, KENNETH ROWE, PATRICK REILLY, ALAN TERPANICK, DEBORAH EDWARDS, DAVID ROSENBLUM, ALFRED RAMEY, AUSTIN O'MALLEY, PETER VAN IDERSTINE, STEPHEN SERRAO AND WILLIAM LUCAS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7033-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Skillman and Winkelstein.
On September 1, 2005, plaintiff, an African-American state trooper, filed a complaint which alleged various claims under the Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C.A. §2000e to 2000e-17. The complaint named the New Jersey State Police, the Office of the Attorney General, the Superintendent of the State Police and various other members of the State Police as defendants.
Defendants filed a motion under Rule 4:6-2(e) to dismiss plaintiff's complaint for failure to state a claim. The trial court entered an order on January 31, 2006 "dismissing" defendants' motion and ordering plaintiff to file an amended complaint.
Plaintiff filed an amended complaint, and defendants renewed their motion to dismiss. Before the return date, plaintiff obtained new counsel who requested the opportunity to file a new amended complaint. The trial court granted this request and denied defendants' motion to dismiss without prejudice.
Plaintiff filed a second amended complaint, which added a number of new defendants, including an assistant attorney general and two deputy attorneys general. Defendants again renewed their motion to dismiss for failure to state a claim. Defendants filed an eighty-page brief in support of the motion, which argued that some of plaintiff's claims had not been filed within the applicable statutory limitations period and that those claims that were not time-barred failed to state a claim under any of the statutory provisions relied upon by plaintiff.
Without hearing oral argument, the trial court entered an order on October 4, 2006 dismissing plaintiff's complaint with prejudice "for the reasons stated in the moving papers." After filing a notice of appeal from this order, plaintiff's counsel sent two letters to the trial court requesting the court to provide findings or an opinion in accordance with Rule 2:5-1(b). However, the court did not reply to either letter and, other than the previously quoted notation at the bottom of the order, it never filed an opinion explaining its reasons for dismissing plaintiff's complaint.
Initially, we note that an order granting a motion to dismiss for failure to state a claim is appealable as of right. Therefore, the trial court was required under Rule 1:7-4(a) to "find the facts and state its conclusion of law thereon" by either a written or oral opinion. "Failure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)).
A trial court cannot discharge this duty simply by incorporating the arguments of the prevailing parties by reference. The inadequacy of this form of disposition is especially evident in a case such as this, where the moving parties relied upon various alternative arguments for dismissal of plaintiff's complaint. Thus, we cannot determine from the order dismissing plaintiff's complaint whether the trial court concluded that plaintiff's claims were untimely, that his allegations failed to state a claim under any of the statutes he relies upon, or that some of his claims were untimely and others not actionable. We also have no way of knowing the reasoning process by which the court arrived at whatever conclusions led it to dismiss plaintiff's complaint.
Although a remand would be warranted under these circumstances, we have decided to address the merits because of the length of time that has elapsed since the filing of plaintiff's complaint and because it is clear that the complaint does state claims upon which relief could be granted.
In considering a motion to dismiss a complaint under Rule 4:6-2(e), a court should only decide "whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown v. Sharp Elects. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). A court reviewing such a motion should "search the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). A motion to dismiss under Rule 4:6-2(e) "should be granted in only the rarest of instances." Id. at 772.
Judged by these indulgent standards, it is clear that at least some of plaintiff's claims could be found to have been timely filed and that "the fundament of a cause of action may be gleaned" from plaintiff's allegations. We do not consider it necessary to set forth all the allegations of plaintiff's eighty-page second amended complaint. It is sufficient to outline some of the more salient allegations.
According to plaintiff, defendant Peter Van Iderstine, a detective sergeant first class who was plaintiff's supervisor at the time, allegedly told plaintiff in September 1998 that due to racial problems and perceptions, the State Police gives African-Americans "special treatment." In addition, Van Iderstine allegedly subjected plaintiff to a continuing pattern of racially motivated disparate treatment and discipline. Plaintiff reported Van Iderstine's racially insensitive remark and discriminatory actions to Van Iderstine's supervisor.
On November 23, 1998, while plaintiff was on the security detail at the New Jersey Judicial Conference, Van Iderstine put his face very close to plaintiff's face and told him to "stop acting like a baby." The following day, November 24, 1998, plaintiff and Van Iderstine attended a mediation session led by Captain Edward Moore. Moore told plaintiff he was being "overly sensitive" about Van Iderstine's behavior and declared the mediation to be at an impasse. That same day, plaintiff reported his complaints about Van Iderstine to the State Police's Equal Employment Opportunity/Affirmative Action (EEO/AA) unit. Plaintiff met with Sergeant Marshall Brown, who is also a named defendant, and Sergeant Moses Knott about his complaints. Brown and Knott sought plaintiff's participation in an informal resolution procedure; plaintiff agreed, subject to Van Iderstine's participation, but Van Iderstine declined to participate.
In December 1998, plaintiff was informed that "his complaint had become moot" because Van Iderstine was to be transferred to another unit and no longer would supervise plaintiff. However, Van Iderstine was not transferred at that time, and plaintiff continued to work under Van Iderstine in what he alleges to have been "hostile working conditions" until his transfer to the FBI Joint Terrorism Task Force in April 1999.
In June 2001, plaintiff applied for a position as a staff investigator with the EEO/AA unit. That month, Sergeant Brown, who was the head of the EEO/AA unit, contacted plaintiff to see whether he still wanted to pursue his complaint against Van Iderstine. Plaintiff felt intimidated by Brown's question because he was scheduled to be interviewed for the "higher-ranking position" of detective sergeant in the EEO/AA unit.
Shortly thereafter, in July 2001, plaintiff was interviewed for the staff investigator position in the EEO/AA unit by four persons, including Brown and defendant Timothy Goss, an African-American captain in the State Police. Although three of the interviewers gave plaintiff a high interview score, Goss gave him a low score. As a result, a less educated and less qualified caucasian male was appointed to the position. According to plaintiff, Goss gave him a low score on the interview because he seeks to prevent other African-American troopers from competing with him for promotions by discriminating against them.
Approximately one year later, plaintiff was assigned to the staff investigator position in the EEO/AA unit for which he had unsuccessfully interviewed the year before. In December 2002, plaintiff reported to Brown and Supervising Deputy Attorney General Deborah Edwards that EEO/AA unit head Lieutenant Patrick Reilly was failing to investigate numerous EEO/AA complaints. Plaintiff told Brown and Edwards that Reilly did not assign investigators to substantively valid complaints, instead holding them for himself in order to "protect the continuing patterns of bias and abuse exhibited by senior officers." Plaintiff asserted that the complaints held by Reilly were more than two years old and lacked evidence of any investigation.
In January 2003, plaintiff expressed concern to Brown that Lieutenant Reilly was tipping off targets of investigations and advising them of the contents of the complaints. Although Brown had previously told plaintiff that he would receive the next promotion in the EEO/AA unit, Lieutenant Reilly informed plaintiff in April 2003 that two caucasian officers would be receiving the next promotions. In June 2003, Reilly was "counseled" for "not investigating" EEO/AA cases and transferred out of the unit, but at the same time promoted to captain.
Around the same time, plaintiff was accepted to attend the FBI National Academy, the nation's most prestigious police training school. Four NJSP officers attend the FBI academy each year and successful completion of the program is understood to be a "stepping stone to a nearly immediate promotion." Although plaintiff completed the FBI National Academy program in September 2003, he has not received a promotion since. Plaintiff alleges that he is the only State Police FBI Academy graduate not to have received a promotion.
In September 2003, plaintiff, working as a staff investigator for EEO/AA, began investigating complaints against a white acting sergeant first class and a black acting sergeant. Plaintiff was informed that the white officer would be promoted during the pendency of the investigation, while the black officer would have to wait for the results of the investigation before the "acting" promotion could become final. Plaintiff reported this alleged "disparate treatment" to Deputy Attorney General Egar and requested that both promotions be held in abeyance while the investigation was pending. Although plaintiff alleged that his investigation "revealed" that the charges were unsubstantiated as to both targets, Egar told plaintiff that she felt the allegations as to the white officer would not be substantiated.
In December 2003, plaintiff met with defendant Joseph Fuentes, the Superintendent of the State Police, and Captain Gayle Cameron. Plaintiff advised them of his concerns regarding "discriminatory practices."
In January 2004, both Goss and Captain Cameron contacted plaintiff about a position at the New Jersey State Police Academy. Plaintiff believed that "the reason [he] was being offered this position was to get him to leave the EEO/AA." According to plaintiff, he declined this offer because he did not want to abandon his EEO/AA work at a time when the State Police "continued to demonstrate patterns of disparate and discriminatory practices."
On January 16, 2004, Captain Cameron informed plaintiff that an investigation was being conducted by the Office of Attorney General concerning the complaints plaintiff made to Superintendent Fuentes in December 2003. Captain Cameron again asked plaintiff to accept a transfer to the Academy, and plaintiff again declined. At this point, Cameron allegedly indicated that the State Police did not want plaintiff to return to EEO/AA out of fear that plaintiff would sue the State Police based on "discriminatory practices."
On March 8, 2004, plaintiff met with Deputy Attorney General David Rosenblum regarding an ongoing investigation of discrimination complaints raised by Sergeant Pedro Fontanez, who is Hispanic. Rosenblum informed plaintiff that the Office of the Attorney General was intentionally stalling the investigation and deliberately not providing documents to the Equal Employment Opportunity Commission, which was conducting a companion investigation.
Plaintiff then e-mailed Goss regarding additional stalled investigations fitting the same pattern. According to plaintiff, when a complainant threatened a civil law suit, the EEO/AA unit's investigation ground to a halt. The stalling policy was allegedly documented in e-mails between senior EEO/AA officers and staff in the Office of Attorney General. Goss acknowledged receipt of the e-mail on March 10, 2004, and e-mailed plaintiff that he would ask Lieutenant Austin O'Malley, who is also a named defendant, to gather a list of the cases plaintiff claimed were not being investigated. That same day, Goss offered plaintiff a promotion to detective Sergeant First Class and a position as the assistant unit head with the Management Awareness and Personnel Performance System (MAPPS). According to plaintiff, this offer was made so that the EEP/AA Unit "could continue to practice its discrimination without resistance."
On March 12, 2004, Goss informed plaintiff that he was not being promoted and that the MAPPS position could not be secured. Goss asked plaintiff to accept an "acting" promotion and a transfer to the Joint Management Commission unit (JMC) instead.
On May 4, 2004, Goss informed plaintiff that the transfer and promotion had been placed on hold. On May 11, 2004, Goss informed plaintiff that he was to be transferred to Lieutenant Colonel Mattos' intelligence office without a promotion, and that Mattos had all future discretion regarding promotions. According to plaintiff, the transfer was punitive as it placed him behind an established list of sergeants for promotion.
On July 2, 2004, plaintiff attended a meeting with O'Malley and Lieutenant Deborah Furlong. They allegedly told plaintiff that he had been accused of releasing information concerning the "Lords of Discipline" and intimating to troopers with pending cases before the EEO/AA unit that that unit and the Office of Attorney General "were not doing their jobs rooting out the insidious effects of discrimination and disparate treatment." After this meeting, O'Malley gave plaintiff a poor score in a performance evaluation, and plaintiff filed a retaliation complaint with the EEO/AA unit of the Department of Personnel against O'Malley, Goss, Superintendent Fuentes and other members of the State Police. Thereafter, O'Malley's performance evaluation of plaintiff was reversed by Mattos. Nevertheless, in December 2005, plaintiff was ranked thirty-second out of thirty-six troopers eligible for promotion within his section. In January 2006, plaintiff was informed that Superintendent Fuentes had said: "Tell Brian that his career is over, and that he should consider retiring because of his medical condition."
We are satisfied that at least the "fundament of a cause of action" under the LAD "may be gleaned" from the factual allegations of plaintiff's complaint. The LAD prohibits an employer from discriminating against an employee based on race. N.J.S.A. 10:5-12(a). Such discrimination may consist of an adverse employment action, such as a denial of a promotion. See Klawitter v. City of Trenton, 395 N.J. Super. 300, 325-26 (App. Div. 2007). It also may consist of creating a hostile work environment. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002). In addition, the LAD prohibits retaliation against a person for opposing practices that violate the LAD or filing or threatening to file a complaint under the LAD.
N.J.S.A. 10:5-12(d). Plaintiff's complaint includes claims that he was denied certain promotions and subjected to a hostile work environment because of his race and/or in retaliation for his numerous complaints regarding not only defendants' discrimination against him but also their discriminatory treatment of other minorities in the State Police and their failure to adequately investigate discrimination claims.
Plaintiff's allegations regarding the retaliatory actions allegedly taken against him also state the fundament of a cause of action under CEPA. See N.J.S.A. 34:19-3; Dzwoner v. McDevitt, 177 N.J. 451, 462 (2003); cf. Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 502-03 (2006).
Moreover, it is clear that at least some of plaintiff's claims under the LAD are not time-barred. The LAD provides a two-year limitations period for filing claims. Montells v. Hayes, 133 N.J. 282, 292 (1993). Plaintiff's complaint was filed on September 1, 2005. As indicated by the outline of the allegations of plaintiff's complaint, some of defendants' alleged acts of discrimination and retaliation occurred within the two-year period from September 1, 2003 to September 1, 2005. Therefore, plaintiff's LAD claim based on those acts are not time-barred.
Furthermore, under the "continuing violation" doctrine, "when an individual is subject to a continual, cumulative pattern of [discriminatory] conduct, the statute of limitations does not begin to run until the wrongful action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). The continuing violation doctrine applies to hostile workplace claims under the LAD. Shepherd, supra, 174 N.J. at 18-24. Therefore, plaintiff's allegations of racially discriminatory and retaliatory acts by defendant occurring before September 1, 2003 may be considered insofar as they are relied upon in support of plaintiff's hostile work environment claims. The continuing wrong doctrine also may apply to claims under CEPA. See Green v. Jersey City Bd. of Educ., 177 N.J. 434, 446-48 (2003). For these reasons, even though plaintiff's complaint is disorganized and confusing, and some of his claims may be subject to dismissal at an early stage of the litigation, the trial court erred in summarily dismissing his complaint for failure to state a cause of action. Accordingly, the order dismissing plaintiff's complaint is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion.
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