On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4031-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Ashrafi and Fasciale.
Plaintiff Keith Armstrong, a detective employed by the Jersey City Police Department ("the JCPD"), appeals from an order granting summary judgment to defendants and dismissing his discrimination lawsuit. We affirm.
Plaintiff, who is African-American, filed a six-count complaint in 2008 against Jersey City, the JCPD, and Police Chief Thomas Comey. He asserted claims of race discrimination, hostile work environment, and retaliation under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, and also claims of State and federal constitutional violations of his rights to free speech and equal protection. Absent from plaintiff's complaint was any claim that his employment had been terminated, that he had been demoted or passed over for promotion, or that he had lost pay. He alleged that his civil rights were violated because an internal affairs investigation of his off-duty conduct was racially motivated and because defendants had harassed him and retaliated for his complaining about the investigation. According to plaintiff, the discrimination and harassment included denying him the opportunity to remain on the night shift, requiring that he undergo a fitness-for-duty examination, placing him on modified duty, and demeaning him in the presence of others.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "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. 520, 540 (1995). Viewed most favorably to plaintiff, the summary judgment record established the following facts.
Plaintiff began working as a Jersey City police officer in 1994. He was promoted to detective in 2004 and was assigned to the major case squad. He had no serious complaints with the JCPD or his supervisors until the internal affairs unit of the JCPD began investigating difficulties he was having with his neighbors.
From 1996 to 2006, the JCPD had received twenty-eight complaints from citizens about plaintiff, an unusually large number. Most of the complaints were from plaintiff's Jersey City neighbors, who were also African-American. The neighbors claimed that plaintiff targeted them for minor infractions in the neighborhood, such as traffic, parking, and municipal snow removal violations. For example, while off duty in 2005, plaintiff had issued summonses to two neighbors for shoveling snow into the street. Plaintiff had also become involved in an argument with a neighbor about moving a car. On that occasion, plaintiff called police headquarters for help, and uniformed patrol officers arrived. After further argument with the neighbor, plaintiff personally issued motor vehicle tickets to the neighbor, including one for failing to produce a driver's license although the neighbor had displayed his license to the uniformed officers.
In August 2006, an African-American Assistant Prosecutor employed by the Middlesex County Prosecutor's Office complained to the JCPD through a third party about plaintiff's conduct toward her family, who were his neighbors. About the same time, an African-American Jersey City Councilwoman called the JCPD to report problems that plaintiff was having with other neighbors.
As a result of these complaints, Captain Brian O'Callahan of the JCPD internal affairs unit scheduled a meeting with plaintiff for August 11, 2006. Plaintiff later alleged in his discrimination lawsuit that two sergeants who were waiting together with him for the meeting harassed him and acted in an unprofessional and demeaning manner by saying that many neighbors were upset at him and he should consider moving.
The meeting with O'Callahan did not go well. O'Callahan testified in deposition that he told plaintiff he had received complaints and asked plaintiff to explain the circumstances. According to O'Callahan, plaintiff was "defensive and accusatory from the first moment." Plaintiff said that his neighbors were criminals, and they were harassing him. Plaintiff accused several unnamed JCPD officers of incompetence and dereliction of duty in that they had failed to help him when he called for police action in his neighborhood. Plaintiff also accused O'Callahan of attempting to intimidate him at the meeting by slamming plaintiff's internal affairs file on the desk.
Plaintiff testified in deposition that O'Callahan accused him of having "anger issues" and "demeanor problems" and compared him to another officer who had recently been fired as a result of misconduct, which included shooting incidents. Plaintiff considered the comparison to be offensive and racially motivated, although he acknowledged at his deposition that the fired officer was Caucasian. When plaintiff stated to O'Callahan that his neighbors had committed criminal mischief on his property, O'Callahan suggested that plaintiff install cameras to record future incidents. O'Callahan also suggested that plaintiff call his supervisors before engaging in any police function with the neighbors while off duty and that the JCPD would respond with plainclothes officers. Plaintiff took offense at O'Callahan's advice because he inferred that O'Callahan was suggesting police conduct contrary to proper procedures. He believed that O'Callahan's remarks were racist, that O'Callahan would not have given similar advice to a detective who might have resided in the "Heights."
As a result of the combative meeting, O'Callahan intended to place plaintiff on the JCPD's employee monitoring program. Plaintiff's supervisor in the major case squad, Lieutenant Michael Kelly, objected to O'Callahan's proposed action. O'Callahan decided to investigate the ...