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Michael Duncan v. Mayor and Committee of Hazlet

July 19, 2011

MICHAEL DUNCAN, PLAINTIFF-APPELLANT, AND GERALD LAURINO, PLAINTIFF,
v.
MAYOR AND COMMITTEE OF HAZLET, DEFENDANT-RESPONDENT, AND HAZLET POLICE DEPARTMENT AND JAMES A. BRODERICK, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4059-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2011

Before Judges Carchman and Messano.

Plaintiff Michael Duncan appeals from the Law Division orders of July 2, 2009 that: 1) granted summary judgment to defendants Mayor and Committee of the Township of Hazlet (Hazlet), the Hazlet Police Department (the department), and its police chief James A. Broderick, (collectively, defendants); and 2) denied plaintiff's motion to compel discovery from defendants.*fn1 We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.

I.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. at 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We consider the following facts from the motion record in a light most favorable to plaintiff.

Plaintiff is a police officer in the department and was a reservist in the United States Air Force from July 29, 1992 to March 22, 2004, when he was honorably discharged. It is unclear from the record exactly when plaintiff became employed as a police officer, but, based upon his interrogatory answers, he was so employed in 2001 when he alleged Broderick's "dislike for [him] began." Plaintiff claimed that upon his return from a military deployment in the Middle East that year, Broderick, then deputy chief of the department, "accused [him] of volunteering for the trip and stripped [him] of 153 comp hours."

The department was established by adoption of the following ordinance: The Police Department of Hazlet Township is hereby established and shall consist of a Police Chief, a Deputy Police Chief, three Police Captains, Lieutenants, Sergeants and such additional police officers or other employees as shall from time to time be deemed necessary and shall be appointed by the Township Committee. [Hazlet, N.J., Code of the Twp. of Hazlet § 67-1 (1982) (emphasis added).]

A later addition to the code, entitled "Table of Organization," provided a schedule of positions. Hazlet, N.J., Code of the Twp. of Hazlet § 67-16 (1995).

The ordinances were amended in 2004 and again in 2005. The 2005 table of organization provided for eight sergeant positions. Hazlet, N.J., Ordinance 1317-05 (Jan. 25, 2005). The total number of sergeants was reduced to six by the annual amendment to the department's table of organization approved in 2006. Hazlet, N.J., Ordinance 1363-06 (Apr. 17, 2006).

Laurino certified that at some point after the retirement of a sergeant in 2004, "there was an additional sergeant position left open that was never filled." NJDOP issued a sergeant eligibility list on January 27, 2005. The three highest-ranking candidates were: 1) David Cohen; 2) Laurino; and 3) plaintiff. Cohen and plaintiff were accorded veteran status. The expiration date for the promotional list was January 26, 2008.

Laurino also certified that "during this time period patrol officers were forced to [do] the job of a sergeant when the sergeant assigned was on his/her scheduled days off." In November 2005, Cohen filed a grievance through his union, P.B.A. Local 189, which challenged the use of patrol officers to cover for sergeants. In an undated letter that defendants produced in support of their motion for summary judgment, Cohen advised Chief Broderick of his complaint and referenced "talk[] of promoting a[t] least two patrolm[e]n to sergeant."

On February 21, 2006, NJDOP advised Hazlet's Administrator of its receipt of information that two officers, Daniel Lynch and Kevin Leonard, were performing the duties of sergeant "in an 'acting' capacity." NJDOP initiated "a classification review of the positions currently filled by these police officers." On November 17, 2006, NJDOP advised Hazlet of the results of that review.

NJDOP had interviewed Lynch, Leonard, their departmental supervisors and Broderick. The review concluded that "based on the current scheduling . . . within the Police Department, . . . there is sufficient cause to determine that on all three shifts there is a regular scheduling occurring whereby police officers are assigned as 'Acting Sergeant/Shift Leaders.'" NJDOP advised that unless there was a scheduling change in the shifts within the department, "there [wa]s [a] basis for the establishment of regular permanent Sergeant positions," and if it did not hear from Hazlet by December 1, 2006, it would "proceed to have a certification issued to the Township for three vacant positions to be filled."

In support of the summary judgment motion, Broderick certified that "it was [his] feeling that the person who alerted [NJDOP] . . . was . . . Cohen, as . . . Cohen had previously sent [him] a memorandum and filed a formal grievance with respect to said allegation[]." Broderick further certified that he "took all necessary steps to change the schedule so as to eliminate the need for 'acting sergeant/shift leaders.'" Broderick assigned four sergeants to a 12-hour work schedule (the Pitman schedule), resulting in a sergeant being on-duty at all times. On January 26, 2007, NJDOP accepted the Pitman schedule, along with an increase of one sergeant in the patrol division as "sufficient[,]" which "alleviated the need to request certification of the current promotional list for sergeant at this time."

In July 2007, Hazlet adopted another amendment to the police department's table of organization that reduced the number of sergeants to five and reorganized the patrol and support divisions. Hazlet, N.J., Ordinance 0619-07 (July 10, 2007). Broderick also certified that in December 2007, a vacancy arose in the sergeant ranks "as a result of a vacant lieutenant's position being filled." Cohen was promoted to sergeant.

Plaintiff's opposition to the summary judgment motion did not contest most of these facts, but, rather argued that Broderick took the actions "purposely to deny [plaintiff] [his] rightful promotion[]." Plaintiff certified that in addition to stripping him of his compensatory time in 2001, Broderick transferred him to another squad because he believed his current squad sergeant, a veteran, was "'coaching'" him.

Plaintiff claimed Broderick "ha[d] a history of harassing veterans," and promoted Cohen and the lieutenant to avoid litigation. He also alleged that Broderick had initiated disciplinary actions against him, including a "bogus six-day suspension which could affect the score of [his] civil service score on next [sic] sergeant's test." Plaintiff certified that another officer had physically threatened him, that he requested an internal investigation of the incident, and that Broderick assigned a biased supervisor to investigate, guaranteeing that the offending officer would not be disciplined.

Laurino further certified that Broderick blamed him and plaintiff for "put[ting] . . . Cohen up to filing the NJDOP complaint." Both Laurino and plaintiff certified that after the promotional list expired, Broderick maintained a vacancy in one of the ...


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