July 6, 2010
SCOTT TURNER, PLAINTIFF-APPELLANT,
NEW JERSEY STATE POLICE AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, Docket No. L-1721-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 15, 2009
Before Judges Stern and J. N. Harris.
Plaintiff appeals from an order granting summary judgment and dismissing his complaint under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq.*fn1 He complains that he was discriminated against in terms of promotional opportunities by virtue of his high State Police badge number, although he "was first in performance in [his] unit and second in seniority with respect to rank" in the Internal Affairs unit.*fn2
According to plaintiff, Sergeant First Class (SFC) James Dukes told him this "his badge number had been a concern to Captain Coleman and Major Meddis," and that Coleman stated "other members had more time on and had to come first." Duke also told plaintiff that "[Captain] Theodos does not want to promote you.
He thinks your badge number is too high."
We affirm the judgment substantially for the reasons stated by Judge Paul Innes in his oral opinion of August 3, 2007. We add only the following.
Plaintiff's claim is based on rank hearsay. He did not depose the non-party trooper he alleged to have advised him of the policy of the State Police or reasons he was not promoted.
Moreover, he never moved to take discovery until after the May 20, 2007, discovery end date passed.*fn3 The judge did not consider the motion for summary judgment until more than ninety days after the extended discovery end date. Significantly, there is no proof that badge numbers are based on a trooper's age as opposed to the date he or she entered service.
Nicholas Theodos, a retired Lieutenant Colonel,*fn4 certified in support of defendant's motion and stated that "State Police badge numbers are issued chronologically" and are "indicative of when that trooper became a sworn member of the State Police."
According to the uncontested certification, "a trooper's badge number is not indicative of that trooper's age." Theodos also certified that he felt others "were more qualified for promotion" than plaintiff and he "did not consider a Trooper's age" when he made promotional decisions.
Thus, badge numbers reveal length of service and there can be no age discrimination premised thereon ("an employee's age is analytically different from his years of service," Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 1707, 123 L. Ed. 2d 338, 347 (1993)), and Turner was promoted faster than others in his graduating class.
A claim of age discrimination, premised on the number of the badge, could only be valid if everyone entered the service at the very same age, and that was not even asserted.