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Samuel T. Flamma, Sr v. City of Atlantic City

January 25, 2011


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-9324-06.

The opinion of the court was delivered by: Cuff, P.J.A.D.


Submitted: March 10, 2010 -

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

The opinion of the court was delivered by CUFF, P.J.A.D.

Plaintiff Samuel T. Flamma, Sr., is an Atlantic City firefighter. He filed a complaint against defendant City of Atlantic City (City) and various other parties when he was not appointed to captain during the effective term of a promotional list on which he was highly ranked. In his complaint, plaintiff, a Caucasian, alleged that the City engaged in reverse racial discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by refusing to promote him from the effective promotional list in the face of vacant positions. He further alleged that the City appointed African-Americans to the position of captain soon after expiration of the promotional list.

Following denial of the City's motion for a directed verdict, the trial judge submitted the case to the jury. Among the issues submitted to the jury was whether "a captain position was available." The jury returned a verdict in favor of plaintiff and awarded him $40,000 for lost wages, and $300,000 in punitive damages. The trial judge awarded attorneys' fees of $61,110, plus a fee enhancement of $14,107.50, $1,530.24 in costs, and $4,527.65 for pre-judgment interest. The judge also granted plaintiff equitable relief in the form of retroactive seniority at the rank of captain effective April 1, 2005, and ordered the City to fund plaintiff's pension commensurate with the retroactive rank of captain.

On appeal, the City argues that plaintiff was ranked fourth on the list promulgated by the Department of Personnel, and there were only two open or vacant positions. It argues that plaintiff could not and did not prove that a vacancy existed during the effective date of the promotional list to which plaintiff could have been appointed; therefore, he was not qualified for a position for which the employer was hiring. Accordingly, the City argues that its motions for directed verdict should have been granted.

The City also argues that the punitive damage award must be vacated because the judge allowed the jury to consider the City's financial condition and also allowed the jury to consider that two firefighters appointed to the captain position received retroactive pay awards from the City. Finally, the City contends that the attorneys' fee award is excessive because the judge granted an improper twenty-five percent enhancement and also awarded a contingent fee for costs and post-judgment work.

We reverse. The issue of whether plaintiff was a victim of reverse racial discrimination was founded on the existence of a vacancy during the effective term of the promotional list. That issue, in turn, cannot be resolved without reference to the law governing promotions in a Civil Service personnel system. Here, the factual record developed by plaintiff, viewed in accordance with the law governing promotions, barred relief. Moreover, even if the question had been properly submitted to the jury, the instruction provided was woefully inadequate to allow the jury to properly resolve the issue.

Samuel Flamma has served as a firefighter with the Atlantic City Fire Department (ACFD) since 1982.*fn1 On February 1, 2008, Flamma assumed the rank of captain; he is assigned to Engine 7, Platoon 2. He had sought this position since he sat for the promotional exam in 2000. His efforts to obtain this promotion are the subject of this appeal.

From March 1, 2004 until March 1, 2007, the ACFD table of organization called for fifty fire captains in the Suppression Unit and five fire captains in the Prevention Unit. The ACFD budgeted for fifty positions. A firefighter who desires to obtain a promotion must take an examination administered by the Civil Service Commission.*fn2 Plaintiff did so in 2000 and was ranked 26A on the list promulgated by the agency and certified to ACFD. The list was effective April 12, 2001, and was set to expire on April 11, 2004. See N.J.S.A. 11A:4-6. The list was extended for an additional year and expired on April 11, 2005. See ibid. By March 1, 2004, many eligible individuals on the list had been promoted or retired; therefore, plaintiff had moved up to the fourth position of interested eligibles on the list. Andrew Gaffney, Christopher Heald, and Kevin Stransky, all Caucasian males, preceded plaintiff on the list.

A municipality that participates in the Civil Service system must designate to the Commission, the person or entity who will serve as the appointing authority. In the City, the appointing authority was the Mayor. He promoted firefighters to the rank of captain based on the candidate's rank on the list certified by the Commission. He did not pick from the top three candidates, as permitted by the Civil Service Law, N.J.S.A. 11A:4-8, but from the "[t]op of the list down."

On August 1, 2004, Captain Michael Sykes retired. At the same time, Captain Joseph Haney was on leave due to illness. Therefore, in September 2004, Chief John J. Bereheiko directed Deputy Chief Victor Francesco to prepare paperwork to promote firefighter Gaffney to the permanent position of captain to replace Sykes and to appoint firefighter Heald to a temporary captain's position during Haney's leave of absence. Gaffney and Heald were ...

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