On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1568-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Espinosa.
Plaintiff Douglas Hampton, an African-American male, became employed as a security officer at the University of Medicine and Dentistry of New Jersey (UMDNJ or defendant) in 2002. In 2004, when he was forty-one years old, plaintiff applied for the position of public safety intern, a transitional position routinely leading to employment as an officer in UMDNJ's police force. After being interviewed, plaintiff was not offered the position. Plaintiff applied for the position again in 2005. Plaintiff did not advance beyond the initial interview stage of the process.
On February 17, 2006, plaintiff filed a complaint alleging age discrimination (Count I) and race discrimination (Count II) in violation of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49. The complaint named UMDNJ, its former Chief of Security, Anthony Shelton, and its current Chief of Security, John Huertas,*fn1 as defendants. After discovery, defendants moved for summary judgment which was partially granted by order of November 11, 2009. Count II, plaintiff's race-based claim, was dismissed, but defendants' motion was denied as to Count I.
At trial before a different Law Division judge, defendant sought dismissal of the individual claims against Shelton and Huertas. Plaintiff's counsel indicated that he "[did not] especially care about the individuals." When asked if he was voluntarily dismissing the claims, plaintiff's counsel stated: "I think your Honor should rule on it, but I'm not . . . putting up a lot of protest." The judge dismissed Shelton and Huertas from the litigation.*fn2
At trial, plaintiff proceeded on the theories of disparate treatment regarding the 2004 and 2005 hiring decisions, and discriminatory disparate impact as to the 2005 selection process. At the conclusion of plaintiff's case, defendant moved for a directed verdict on all claims. The trial judge granted the motion with respect to plaintiff's disparate impact claim, but otherwise denied the motion. Defendant then presented its case, and the jury returned a verdict in defendant's favor.
Plaintiff now appeals. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
We first turn to two evidentiary rulings by the judge that plaintiff alleges were prejudicial error in the context of substantive arguments we discuss in further detail below. The issues arose as follows.
On June 14, 2005, after not being advanced in the selection process, plaintiff filed an internal complaint with defendant's Office of Affirmative Action/Equal Employment Opportunity (AA/EEO) alleging discrimination based on age and race. Catherine Bolder, defendant's AA/EEO Associate Vice President, investigated the complaint.*fn3
Bolder compiled a report dated March 3, 2006, containing her findings, conclusions, and recommendations. Bolder noted plaintiff complained that after the 2004 selection process, various individuals told him defendant "[did] not want to hire older candidates." Allegedly, Deputy Chief John Bailey made such a statement to plaintiff.
On November 10, 2005, Bailey sent Bolder a memorandum (the Bailey memo) regarding the 2004 selection process for four vacant public safety intern positions. The Bailey memo contained the ranked list of "seven (7) [recommended] officers," all of whom were already employed by defendant in some capacity. Plaintiff ranked fifth. In the memo, Bailey stated he had "informed [plaintiff] that if any other top four (4) candidates were unsuccessful in completing the requirements for appointment . . ., [plaintiff] would be the next candidate considered." Further, Bailey's memo stated:
In reference to [plaintiff's] statement that he was not selected for the position, because [a different candidate, Jackson] was younger than he was, is a false statement.
Age had no impact on the selection process for the Public Safety Intern positions.
As to the 2005 selection process, plaintiff told Bolder the process was "unfair" because irrelevant questions were asked, the questions differed for each candidate interviewed, the interviews were conducted by outside consultants, and the scoring was done in a fashion similar to the process used by the New Jersey State Police. Bolder's report stated that in 2005,
Fourteen internal applicants applied for the position. 43% were white with 50% of the white candidates were selected. 36% of the candidates were black with none of the black candidates selected and 21% of the candidates were Hispanic with 33% selected.
The average age of the selected internal candidates was 25 years with the average length of service 2.85 years. The average of the non-selected internal candidates was 32 years with 4.17 the average length of service.
The report concluded that "the selection process had a disparate impact against Black internal applicants, whose average age was older and length of service was longer than the selected internal applicants." The report recommended several changes to the interview process and that plaintiff be "[advanced] to the next stage of the process."
During pre-trial motions in limine, since defendant did not intend to call Bailey as a witness, plaintiff sought to preclude defendant's introduction of the Bailey memo on hearsay grounds. Defense counsel argued that because plaintiff intended to testify Bailey told him he did not get the position because of his age, "[t]he written statement merely counters that and is directly contradictory to the proper hearsay statement that plaintiff himself is going to offer." The judge noted,
If you cannot cross examine . . . an individual with regard to whether his statement is an admission and you're going to allow that into evidence because it's an admission by a party, then other statements made by the same individual that contradict that out of court statement, must in all fairness, be admissible as well.
The judge ruled that plaintiff could testify about Bailey's alleged comments to him but, if he did, defendant could move the Bailey memo into evidence.
Plaintiff's counsel also indicated that he wished to call Bolder as an expert witness. The judge conducted a hearing pursuant to N.J.R.E. 104.*fn4 Bolder testified that the analysis in her report was "done incorrectly" because it was limited only to internal applicants, and defendant considered outside applicants for the positions in 2005. Bolder claimed the report was based in part on conversations with her superiors and Deputy Attorneys General who represented defendant and was the "result of her [superior's] efforts to try to resolve [the dispute] internally." Bolder also stated that her use of the term "disparate impact" was incorrect because "the analysis was not correct." Following the hearing, the judge ruled that Bolder could "certainly ...