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Pedro Fontanez v. State of New Jersey

March 29, 2011


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2199-06.

Per curiam.


Argued September 22, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Plaintiff Pedro Fontanez appeals from the March 12, 2008 order that dismissed his complaint pursuant to Rule 4:37-2(b). We affirm.


Plaintiff, an Hispanic male, is a staff sergeant in the New Jersey Division of State Police (NJSP). On October 29, 2004, plaintiff filed a complaint against defendants State of New Jersey; the NJSP; the New Jersey Department of Law and Public Safety; and seven individual members of the NJSP: Sergeant First Class Gail Cameron; Lieutenant Kaierain May;*fn1 Retired Lieutenant Colonel Al Kernagis; Captain James Grant; Lieutenant Patrick Reilly;*fn2 Sergeant First Class Donald Burton; and Captain Timothy Goss. In his complaint, plaintiff alleged causes of action under the Civil Rights Acts of 1866, 1871, and 1964, 42 U.S.C.A. §§ 2000e to 2000e-17, and violations of the New Jersey 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 "opposed employment practices declared unlawful by the [LAD]."

Pretrial discovery closed on May 30, 2006. On September 1, 2006, plaintiff filed a motion seeking, among other things, to extend the discovery end date. The court denied the motion on October 13, 2006. In the interim, on September 13, 2006, the court noticed the parties of a trial date for January 8, 2007. However, the trial did not proceed as scheduled. On May 17, 2007, plaintiff filed a second motion seeking to extend the discovery end date. The court denied the motion on June 11, 2007, determining that plaintiff had not established exceptional circumstances for granting the motion, the court having already set a second trial date in the matter for July 9, 2007. For undisclosed reasons, the trial did not commence on July 9, 2007. On August 17, 2007, plaintiff filed a third motion seeking to compel discovery and to extend the trial date. The court denied the motion on September 7, 2007.*fn3

The matter was tried before a jury on February 13, 19, and 20, 2008. On the first day of trial, the court granted defendants' motion limiting plaintiff's claims to events that occurred after February 28, 2001, determining that prior events were not sufficiently connected to events that occurred from that day forward as to constitute a continuing violation for the purpose of extending the statute of limitations. Also on that day, the court dismissed the complaint as to defendants Kernagis and Cameron. Following the close of plaintiff's case on February 19, 2008, the remaining defendants moved to dismiss the complaint pursuant to Rule 4:37-2(b), contending that plaintiff failed to establish a prima facie cause of action under the LAD. The court granted the motion the next day, and entered a memorializing order on March 12, 2008. It is from this order that plaintiff appeals.*fn4


We discern the following facts from the trial record. Plaintiff left Pemberton Township High School in 1976 before completing his high school education. On leaving high school, he joined the United States Army. While in the Army, plaintiff obtained his high school Graduate Equivalency Diploma. Plaintiff served three years of active duty with the Army. He subsequently joined the United States Air Force Reserves and recently retired from military service after twenty-five years. While serving in the Air Force Reserves, plaintiff obtained two college Associate degrees: one in Applied Sciences and the other in Social Sciences. In 2001, plaintiff obtained a Bachelor of Arts degree.

Plaintiff joined the NJSP in 1985 as a trooper and was promoted in 1989 to the rank of sergeant. Plaintiff is qualified as a rescue scuba diver and scuba dive master. He possesses a private airplane pilot license, an Emergency Medical Technician's license, a Practical Nurse license, a first-degree black belt in Tang Soo Do, and a red belt in Tae Kwon Do.

In 2001, plaintiff attended Northwestern University Command School with five other troopers--four sergeants and one first-class sergeant. Since 2001, three of the other five troopers rose through the ranks of the NJSP to the position of captain. No evidence was presented, however, as to the race, ethnic backgrounds, or qualifications of any of those individuals.

While plaintiff attended Northwestern University, the NJSP created the title of "staff sergeant" to designate sergeants who supervised patrol squads. The title of "staff sergeant" is merely a designation within the NJSP. Although plaintiff had been supervising a patrol squad before attending Northwestern University, he was not designated a staff sergeant upon his return from the University in May 2001. NJSP gave the designation to plaintiff's former classmate at the State Police Academy who had been supervising a squad in the Tactical Patrol Unit. That sergeant was a Caucasian male. However, at the time of trial in February 2008, plaintiff held the designation of staff sergeant.

Shortly after returning from Northwestern University, plaintiff received a Performance Notice (PN) from Lieutenant May, his then Station Commander, for a report authored by plaintiff concerning an investigation of an automobile accident involving another trooper.*fn5 On August 22, 2001, plaintiff filed a discrimination complaint with then Lieutenant Goss of the NJSP Equal Employment Opportunity/Affirmative Action Office (EEO/AA), alleging discrimination against May. Although plaintiff believed that Goss had not properly acted on the complaint, plaintiff received a letter dated August 29, 2001, from Deputy Attorney General (DAG) David Rosenblum advising that the "Attorney General's Office has determined that you have not articulated a violation of the State Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace."*fn6 The letter further declared that "[a]bsent any evidence of a Policy violation, however, we will not be taking any further action or investigating your allegation of discrimination. As you have represented that you would like to better understand the criteria for the staff sergeant position and work towards its attainment in the future, this matter will be referred to State Police management for appropriate action." In subsequent weeks, plaintiff received three or four additional PNs from May.

In November 2001, the NJSP found plaintiff responsible for causing an automobile accident while on duty. In November of the following year, plaintiff was again found at fault in causing a second automobile accident.

On December 28, 2001, plaintiff filed a discrimination complaint against May with the Division of Personnel.*fn7 He was subsequently contacted by Lieutenant Patrick Reilly, who set up a mediation meeting between plaintiff and May. Despite plaintiff's request that only he, May, and Patrick Reilly be present at the meeting, other NJSP members who plaintiff had asked not attend the meeting were present. The other individuals in attendance included then Lieutenant Grant, Sergeant First Class Burton, and the former classmate of plaintiff who had recently been designated as a staff sergeant. Plaintiff did not voice any discrimination complaints against May at that meeting. According to plaintiff, Patrick Reilly neither filed a report of the mediation meeting, nor interviewed individuals whose names plaintiff gave him.

On July 3, 2002, plaintiff filed a complaint with the United States Equal Employment Opportunity Commission (EEOC) setting forth allegations of racial discrimination and harassment in the NJSP. The EEOC examined twenty personnel records of NJSP employees similarly classified as plaintiff at plaintiff's assigned station. After completing its investigation, the EEOC determined that the complaint was ...

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