On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5157-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sabatino and Alvarez.
This case involves a claim of retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff Guadalupe Muñoz appeals from a January 22, 2010 order denying his motion for leave to file a third amended complaint, and from a February 8, 2010 final order granting summary judgment in favor of defendants City of Perth Amboy Police Department (Department), Deputy Chief E.J. McDonald, and Chief Michael Kohut.
In this case, plaintiff claimed that, in connection with an earlier LAD case in which he asserted national origin discrimination, the Department retaliated against him in violation of the LAD's prohibition against taking reprisals against persons asserting rights under the LAD. N.J.S.A. 10:5-12(d).
A. The First LAD Complaint
The background of the previous LAD case was detailed in our opinion, affirming the jury's finding of discrimination and the trial judge's decision to remit the amount of the damages award. Muñoz v. City of Perth Amboy Police Dep't, No. A-6254-06 (July 29, 2009).
We briefly summarize the most relevant points concerning the first LAD case. Plaintiff, the only Mexican-American police officer employed by the Department at that time, contended that he was subjected to a hostile work environment because of his national origin. At the trial, he and other witnesses testified that he was subjected to ethnic jokes and slurs and was given the "cold shoulder" by other officers.
Plaintiff also alleged that a supervisor, Sergeant Conway, failed to back him up while he was attempting to arrest two struggling suspects. Plaintiff testified that, at Conway's direction, he filed a falsified police report covering up Conway's failure to assist him with the arrest. In his testimony, Conway denied failing to assist plaintiff or directing him to file a false report.
Plaintiff also presented evidence that Kohut, then the police chief, had made discriminatory remarks about Mexicans at two police training sessions. Kohut's remarks were later reported in the community and caused considerable public controversy. At the trial, Kohut admitted making the comments. Plaintiff's supervisor, Sergeant Denise Sosulski corroborated plaintiff's recollection of the comments, but testified that she understood Kohut intended his remarks as a joke and she thought plaintiff understood that as well. She also testified to a meeting at which Kohut apologized for making the comments.
On May 24, 2007, the jury returned a verdict against the Department and Kohut, and awarded plaintiff $1.9 million in damages. The trial judge remitted the verdict to $300,000, which plaintiff eventually accepted after we decided his appeal in 2009.
B. The Second LAD Complaint
On June 4, 2007, less than two weeks after the jury rendered its verdict, plaintiff filed another complaint, this time alleging reprisal, in violation of N.J.S.A. 10:5-12(d). The second complaint asserted that during the discrimination trial, Sosulski "testified that she had been ordered to change her testimony by ...