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Embrey v. State

August 4, 2009

EILEEN A. EMBREY, GRACE ESPOSITO, ANGELO S. FABREGAS, EDDIE L. HALL, JR., CHERYL A. MOSES, LEWIS POWELL, AND RICHARD M. WILLIAMS PLAINTIFFS, AND SHAHIDAH B. SHARIF AND CHARLES B. WILLIAMS, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, COUNTY OF ESSEX PROSECUTOR'S OFFICE, DONALD CAMPOLO, INDIVIDUALLY, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division Essex County, Docket No. L-7437-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 20, 2009

Before Judges Cuff, C.L. Miniman and Baxter.

In this employment discrimination case, two employees of the Essex County Prosecutor's Office (ECPO) argue that they were denied promotions due to racial discrimination. One plaintiff also argues that officials discriminated against her due to her religion. The complaints arose and plaintiffs commenced legal action following the resignation of the prosecutor and during the period of time the State Attorney General assumed control of the office. We review an order granting summary judgment to defendants State of New Jersey, ECPO, and Donald Campolo and dismissing plaintiffs' complaint, and the order denying plaintiffs' motion for reconsideration. We affirm.

I.

We derive the facts from the Statements of Material Facts submitted by the parties in support of and in opposition to defendants' motion for summary judgment. R. 4:46-2. The undisputed material facts are as follows:

The Attorney General appointed Donald Campolo to serve as a fiscal and personnel monitor at the ECPO. During his assignment, Campolo answered to the Attorney General and the Assistant Attorney General in the Division of Criminal Justice in charge of the prosecutor's supervisory section. Campolo was expected "to be the ultimate decision-maker on any discretionary expenditures of funds . . . [and] any deployments of personnel, hiring of personnel." The Essex County Prosecutor resigned in September 1999 following Campolo's appointment. The Attorney General designated Campolo as Acting Essex County Prosecutor in September 1999; he remained in that position until October 2003.

After his appointment as Acting Prosecutor, Campolo requested the assignment of Lewis Becker from the Division of Criminal Justice to the ECPO to serve as Acting Chief of Investigators. Becker was to replace Thad Givens, a black male who had retired. As Chief, Becker oversaw the entire ECPO investigatory staff: three deputy chiefs, captains, lieutenants, and investigators. Becker's appointment was not advertised; applications were neither invited nor received. His appointment was approved by the Division of Criminal Justice.

During his deposition, Campolo testified that he selected Becker to serve as Chief because he was "among the most intelligent law enforcement officers [he had] ever met." Becker had extensive experience in law enforcement, including periods of employment in Essex County, and Campolo trusted him and "felt he could bring a lot to the table." Becker was appointed in January 2000. Once appointed, Campolo and Becker discussed and evaluated the ECPO investigatory staff and proposed a reorganization of the investigatory functions to enhance the prosecutions undertaken by the office.

A. Charles B. Williams

Charles B. Williams, an investigator in the ECPO since 1982, alleges that he was the victim of racial discrimination in the selection of two white males to fill two vacant deputy chief positions. One of the changes discussed by Campolo and Becker was the creation of a third deputy chief responsible for professional standards. In the past, this function had been performed by a captain.*fn1

The deputy chief positions were high level positions. The deputy chiefs were direct confidants of the Prosecutor and Acting Chief of Investigators. Campolo considered it appropriate to not post the deputy chief position but to choose someone in whom he had personal confidence and trust.

On or about May 2, 2001, two new deputy chiefs were named: Frank Rogers and Stephen Praschak. Campolo acknowledged that he considered no one other than Rogers and Praschak.

Rogers had been a Captain in the Newark Police Department assigned to ECPO as a full-time liaison. He had an extensive career in all aspects of law enforcement during his career with the Newark Police Department. Rogers was personally solicited by Campolo and Becker. Becker had worked with Rogers on a daily basis regarding a range of operational matters as they related to the Newark Police Department and ECPO. Becker found him to be "very effective and very good at what he did," "performance was exemplary, outstanding," "hard working," "had a wide wealth and range of experience and could produce tangible results on a timely basis."

Campolo explained that Rogers was the only viable candidate. Campolo stated he was looking for someone of rank, stature, someone of responsibility who could basically bridge the functions of the largest police department that we serve. And see if [Rogers] could make things work better because that was one of the chronic problems in the [ECPO] was communicating effectively with Newark, making sure we knew their problems, they knew ours, making things work better.

As a Newark Police Department Captain, Campolo believed Rogers "had substantial experience in internal affairs in Newark." Campolo also stated:

And over the months that he was assigned to the Prosecutor's Office I kept getting reports and Lou kept getting reports that he was just a very intelligent, well organize[d] worker who was very effective in that job and was quite willing to go above and beyond what his duties were strictly limited to. And we had an acute need for someone to fill this contemplated role for professional standards.

Praschak was a lieutenant of county investigators, and also was solicited by Campolo and Becker. Praschak was selected because of his work performance and the needs of ECPO at that time. In particular, Becker indicated that there was a "pressing need for a deputy chief legal supervisor in the special criminal squads, especially the Homicide Unit, and the newly formed Vehicular Homicide Unit in particular, and all of the criminal squads." Campolo acknowledged he relied upon Becker's assessment of Praschak's communication skills, initiative, knowledge and credibility. Various assistant prosecutors with supervisory responsibilities had also recommended Praschak. Prior to his appointment to Deputy Chief, Praschak had a long and distinguished career at ECPO and received numerous commendations.

Charles Williams was a lieutenant of county investigators in the consolidated unit. He did not apply for the deputy chief position, never expressed interest to Campolo in a deputy chief position, and did not know the required qualifications for the position of deputy chief. Material submitted by plaintiffs in opposition to defendants' motion for summary judgment reveals that Williams, a black male, commenced work at ECPO as an investigator in 1982 and was promoted to lieutenant in 1991. He served as captain of the narcotics task force from 1996 to 1998. He was demoted to lieutenant on April 1, 1998, but stated he was never disciplined.

Williams also testified that he discussed his 1998 demotion with Campolo in 1999 or 2000. According to Williams, Campolo stated he would not be promoted again because that would enhance his lawsuit. However, his complaint was not filed until July 2002.

Charles Williams alleges that similarly situated white colleagues have been afforded opportunities to attend schools for career advancement opportunity and/or management training. At his deposition, however, Williams did not identify particular training opportunities he sought but was denied.

Richard Muncey, retired chief of the Paterson Police Department, was hired as a training officer. Muncey was instructed to institute a training system. He developed an inventory of training available at any given time, and determined, based upon investigators' present assignments, what available training would be relevant for them. Lieutenants would advise Muncey of ECPO employees interested in courses, and Muncey would coordinate training with them. Campolo was not directly involved in training at ECPO.

B. Shahidah Sharif

Shahidah Sharif began her career at ECPO in December 1971, as a clerk typist. She was subsequently promoted to senior clerk typist and then principal clerk typist. She was later promoted to the position of chief clerk.

In April 1997, Sharif, then a chief clerk, was promoted to the position of office supervisor, and received an increase in compensation. At that time, ECPO had an office supervisor named Mary O'Brien. According to Sharif, in August 1997, O'Brien contacted the New Jersey Department of Personnel (DOP) challenging the appointment. O'Brien insisted that Sharif should properly bear the title of chief clerk. Thereafter, DOP contacted ECPO seeking further information in order to conduct a classification review to determine whether or not Sharif's position was properly classified under civil service law. On October 31, 1997, following a review of Sharif's job responsibilities, DOP formally determined that Sharif should be classified as chief clerk rather than office supervisor.

Sharif appealed the DOP determination. Campolo and former ECPO Prosecutor Patricia Hurt supported Sharif's appeal. On or about May 7, 1999, a DOP hearing officer recommended Sharif's appeal be upheld and that she "be classified in the title of Office Supervisor pending promotional procedures." On May 14, 1999, then Deputy Chief Assistant Prosecutor Siobhan A. Teare wrote three memos to Prosecutor Hurt, the ECPO Director of Office of Human Resources and Director of Administration, advising that Sharif should be placed in the title of office supervisor and be paid any back pay or other monies owed to her. On June 3, 1999, Teare forwarded to Sharif a memorandum from the ECPO Director of Human Resources. The memorandum acknowledged the DOP recommendation that Sharif "be classified in the title of Office Supervisor pending promotional procedures," and advised that due to the absence of any existing eligibility list, the office supervisor position is subject to promotional procedures at which time "Ms. Sharif will need to refile for this promotional opportunity and take whatever steps are necessary (filing of her application, and/or formal examination) to attain permanent status."

Later in 1999, while the DOP's report and recommendation were still pending final action by the DOP, the ECPO clerical employees chose to unionize as the ECPO Clerical Association (the Association). The Association and ECPO agreed in writing that both O'Brien and Sharif were supervisors who should be excluded from the Association. Nevertheless, ECPO acted to ensure that Sharif's benefits were not in jeopardy. Campolo was Acting Prosecutor at this time.

On April 12, 2000, the DOP issued a Final Administrative Action in which the DOP Commissioner "accepted and adopted the Classification Reviewer's Report and Recommendation." In March 2001, DOP announced a vacancy for the permanent office supervisor position. Sharif was on leave from employment at that time, and requested an extension of time from DOP to submit the required application. The DOP promotional announcement provided that the maximum allowable salary for the office supervisor position was $69,330.*fn2 On August 20, 2001, DOP released its promotional list; Sharif was identified as one of five individuals who had all received the rank of "1." Consequently, ...


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