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Ortiz v. Union County

April 7, 2010

EDGARDO ORTIZ, PLAINTIFF-APPELLANT,
v.
UNION COUNTY AND UNION COUNTY PROSECUTOR'S OFFICE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4437-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 6, 2009

Before Judges Skillman and Gilroy.

Plaintiff Edgardo Ortiz appeals from the August 29, 2008 order that granted summary judgment to defendants Union County, and the Union County Prosecutor's Office (UCPO). We affirm.

On December 20, 2006, plaintiff filed a complaint against defendants alleging that they had violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to promote him because of his race, ancestry, and/or national origin; subjecting him to a hostile work environment; and retaliating against him for having filed a discrimination charge against one of his superior officers. The complaint also alleged that defendants violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by retaliating against him for his refusal to acquiesce in certain UCPO policies. On October 17, 2007, plaintiff filed an amended complaint adding an additional count alleging disability discrimination in violation of the LAD. On July 17, 2008, after completion of discovery, defendants filed a motion for summary judgment. On August 29, 2008, the trial court entered an order supported by a written opinion granting the motion.

Plaintiff is Hispanic. Plaintiff joined the UCPO in 1988; and retired from the organization in March 2007. During his employment, the UCPO never disciplined plaintiff. Indeed, plaintiff received letters of commendation and appreciation, and was nominated for the UCPO's Distinguished Service Award in 1998.

Initially, the UCPO assigned plaintiff to its Trial Unit as an investigator to assist in the preparation of cases for trial. Plaintiff next served as an undercover detective in the UCPO's Narcotics Strike Force Unit from January 1989 to an unspecified date in 1994. For two of those years, the UCPO assigned plaintiff to work with the Federal Drug Enforcement Agency in Newark.

In June 1995, plaintiff sustained a significant injury to his right knee. Because of the injury, the UCPO placed plaintiff on light duty for approximately two years evaluating cases. Plaintiff filed a workers' compensation claim petition against Union County and received a permanent partial total disability award for the injury.

The UCPO next assigned plaintiff as a detective to the Violent Crimes or Homicide Unit. Plaintiff served in that unit until December 2007, performing the duties of a crime scene technician. From December 1997 until June 2006, plaintiff served in the Administrative Services Unit (ASU), which consisted of four sections: Records and Evidence; Computer Services; Fleet Services; and Forensics. The ASU had seven or eight officers assigned to it at that time. Plaintiff began his assignment in the Records and Evidence section.

From 1997 through the end of January 2000, Sergeant Becky Weston served as plaintiff's immediate supervisor. In February 2000, plaintiff wrote two letters to the UCPO, which were followed by a formal internal complaint against Weston, alleging that she had treated him unfairly and in a demeaning manner because he was a Hispanic male. The UCPO ordered an independent investigation. On August 2, 2000, then Prosecutor Thomas Manahan reported that the investigator found no gender or national-origin animus by Weston.

In January 2000, while serving in the ASU, Prosecutor Manahan promoted plaintiff to the position of sergeant, a position plaintiff held until retirement. In July 2002, Theodore J. Romankow became the Union County Prosecutor, and upon assuming his position, he appointed Robert Buccino to the position of Chief of Detectives.

From July 2002 to January 2003, plaintiff served as the ASU's Acting Commander. He again served as that unit's Acting Commander from January 2004 to January 2005. Although the individuals who commanded the ASU immediately before plaintiff and from January 2003 to January 2004 held the position of lieutenant, plaintiff was not promoted to that position while commanding the unit.

While serving in the ASU, plaintiff complained of difficulty in lifting heavy objects because of the injury to his right knee. In response, the UCPO provided plaintiff with a lifting platform to assist him in performing his duties.

Plaintiff never requested any other accommodations because of his knee injury.

In late 2002, plaintiff confronted Joseph Koury, a detective in ASU's Forensic section concerning Koury's tardiness and misrepresentations of hours worked. After reporting the matter to Buccino, Buccino directed that plaintiff issue a reprimand to Koury. Although plaintiff complied, he never filed formal disciplinary charges against Koury. The UCPO later promoted Koury to the position of sergeant and transferred him from the ASU to the Forensic Services Unit, a former section of the ASU.

On August 26, 2002, soon after his appointment to Chief of Detectives, Buccino issued a letter stating the qualifications for promotion from the position of sergeant to that of lieutenant. The criteria required a minimum of three years in the position of sergeant, and included a point system for other qualifications, for example, commendations, education level, supervisory service and diversity of experience. On September 6, 2002, Buccino issued an amendment to the qualifications, eliminating the three years' minimum requirement in the position of sergeant. As such, all sergeants became eligible to interview for promotions. Because plaintiff never received Buccino's amendment eliminating the minimum in-level service requirement, plaintiff did not apply for promotion in 2002.

In late 2002 or early 2003, Romankow promoted Sergeants Robert Jones and Kevin Foley to lieutenants. Both officers had held the position of sergeant longer than plaintiff.

While commanding the ASU, plaintiff retained the responsibilities for records, evidence, computer services, petty cash, equipment and supplies. In a January 2003 letter, plaintiff complained of being overworked, stressed, and lacking support staff. The letter stated in part:

I am practically a one-man unit responsible for a workload that requires two or three individuals. This is a task that is physically impossible for one person to do. At this point, this ...


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