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Paul D. Mclemore v. Eunice Samuels Lewis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 5, 2012

PAUL D. MCLEMORE, PLAINTIFF-APPELLANT,
v.
EUNICE SAMUELS LEWIS, LOUIS S. SANCINITO, JANE FEIGENBAUM AND DOUGLAS H. PALMER, DEFENDANTS-RESPONDENTS. PAUL D. MCLEMORE, PLAINTIFF-APPELLANT,
v.
CITY OF TRENTON, AND DOUGLAS H. PALMER, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-10097-07 and L-2890-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 27, 2012 --

Before Judges Yannotti and Kennedy.

Plaintiff Paul D. McLemore (McLemore) appeals from an order entered by the Law Division on May 20, 2011, which denied his motion for reconsideration of a previously-entered order granting summary judgment to defendants Eunice Samuels Lewis (Lewis), Louis S. Sancinito (Sancinito), Jane Feigenbaum (Feigenbaum), and Douglas H. Palmer (Palmer). We affirm.

I.

This matter arises out of plaintiff's former employment as a part-time municipal court judge in the City of Trenton (City). On September 8, 2005, plaintiff filed a complaint against the City in which he alleged that he was entitled to be paid as a full-time municipal court judge. The case was removed to the United States District Court, because plaintiff had asserted a claim under 42 U.S.C.A. § 1983.

The District Court granted summary judgment to the City on the federal claim and refused to consider plaintiff's state law claims, which were remanded to the state court for further proceedings. On remand, plaintiff amended his complaint to add Palmer, the City's Mayor, as an additional defendant. Plaintiff claimed that Palmer's failure to appoint him as chief municipal court judge constituted unlawful retaliation and age discrimination in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49.

On October 12, 2007, plaintiff commenced another action in the trial court in which he named Lewis, the administrator of the City's municipal court, and Sancinito, the City's chief municipal court judge, as defendants. Plaintiff later filed an amended complaint but it was not served upon Lewis and Sancinito. Plaintiff then filed a second amended complaint, in which he added Feigenbaum, who was then the City's business administrator, as a defendant. Thereafter, plaintiff filed a third amended complaint, which added Palmer as a defendant.

In the first count of his third amended complaint, plaintiff claimed that Lewis had unlawfully interfered with the "emoluments" of his employment, allegedly in "wanton and callous disregard of [his] constitutional property rights." In the second count, plaintiff claimed that Sancinito and Lewis wrongfully changed his salary, in violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2(c).

In count three, plaintiff alleged that defendants conspired to deprive him of his constitutionally protected property rights without due process of law in violation of the NJCRA. In the fourth count, plaintiff claimed that Palmer "approved or otherwise sanctioned" the change in his salary and the retroactive reduction in his accrued sick and vacation leave time, without due process of law in violation of the NJCRA. In count five, plaintiff alleged that, by approving or otherwise sanctioning the change in his salary and the reduction in his accrued sick and vacation leave time, Palmer had retaliated against him in violation of the NJLAD.

After the completion of discovery, defendants filed a motion for summary judgment. The trial court heard oral argument on the motion on February 18, 2011. The court thereafter filed a written opinion dated March 3, 2011, in which it concluded that plaintiff's claims were without merit and defendants were entitled to judgment as a matter of law.

The court determined that plaintiff had not presented sufficient evidence to support his claim under the NJLAD based on Palmer's failure to appoint him as chief municipal court judge. The court also determined that plaintiff's claim to the salary as a full-time municipal court judge was time-barred, not supported by the City's ordinances, and not cognizable under the NJCRA. In addition, the court decided that plaintiff's NJLAD retaliation claims failed as a matter of law.

The court entered an order dated March 3, 2011, granting defendants' summary judgment motion. On March 22, 2011, plaintiff filed a motion for reconsideration. The court issued a written opinion dated May 20, 2011, in which it concluded that plaintiff had not provided a basis to reconsider the order granting summary judgment to defendants. The court entered an order dated May 20, 2011, denying plaintiff's motion. This appeal followed.

II.

Defendants argue that, to the extent plaintiff is appealing from the trial court's March 3, 2011 order, the appeal is outof-time and should be dismissed.

As we stated previously, the trial court entered an order on March 3, 2011, which granted summary judgment in favor of defendants. On March 22, 2011, plaintiff filed a motion for reconsideration of that order. The trial court entered an order on May 20, 2011, denying the motion for reconsideration. The notice of appeal was filed on July 11, 2011.

As defendants point out, the filing of the reconsideration motion tolled the time for filing a notice of appeal from the March 3, 2011 order. R. 2:4-3(b). It did not, however, start a new forty-five-day-appeal period under R. 2:4-1(a).

Since the motion for reconsideration was filed nineteen days after entry of the March 3, 2011 order, plaintiff had twenty-six days within which to file the notice of appeal after the court entered the May 20, 2011 order. The notice of appeal was not filed in that time. Rather, plaintiff filed his notice of appeal within forty-five days after the entry of the May 20, 2011 order.

Thus, plaintiff's appeal is an appeal, not from the court's March 3, 2011 order granting summary judgment to defendants, but rather from the court's May 20, 2011 order, denying his motion for reconsideration. Thus, we will only consider whether the trial court erred by refusing to grant reconsideration of its decision to grant defendants' motion for summary judgment.

III.

We turn to plaintiff's contention that the trial court erred by denying his motion for reconsideration of the order granting summary judgment to defendants on his failure-to-promote claim. We disagree.

Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). When reviewing a trial court's order granting or denying summary judgment, we apply this same standard. Henry v. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (Busciglio v. Della Fave, 366 N.J. 135, 136 (App. Div. 2004)); Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).

The record indicates that Kevin McGrory's (McGrory) second term as the City's chief municipal court judge ended on December 31, 2005. Palmer appointed Sancinito to replace McGrory. Plaintiff alleged that Palmer's appointment of Sancinito constituted age discrimination in violation of the NJLAD.

Where, as in this case, there is no direct evidence of unlawful discrimination, the plaintiff asserting a claim under the NJLAD must first establish a prima facie case of discrimination. Henry, supra, 204 N.J. at 331. The elements of the prima facie case vary, depending upon the particular type of discrimination alleged. Ibid. (citing Victor v. State, 203 N.J. 383, 409-10 (2010)).

If the plaintiff asserts a discrimination claim based on a failure to hire, the plaintiff must show that: 1) he was a member of the class protected by the NJLAD; 2) he was qualified for the position he was seeking; 3) he was denied the position; and 4) others with similar or lesser qualifications achieved the position. Ibid. (citing Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 443 (1988)).

If the claim involved is an age discrimination claim, the last prong of the prima facie case requires proof that the claimant was "replaced 'by a candidate sufficiently younger to permit an inference of age discrimination.'" Young v. Hobart West Group, 385 N.J. Super. 448, 458 (App. Div. 2005) (quoting Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210-13 (1999)).

Once the plaintiff presents evidence sufficient to establish a prima facie case of unlawful discrimination, the burden shifts to the employer to "'articulate a legitimate, nondiscriminatory reason for the employer's action.'" Henry, supra, 204 N.J. at 331 (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005)). The burden of production thereafter shifts back to the plaintiff to "'prove by a preponderance of evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision.'" Ibid. (quoting Zive, supra, 182 N.J. at 449).

Here, the trial court assumed that plaintiff had presented a prima facie case of age discrimination, but stated that the City had presented "a perfectly reasonable explanation" for Palmer's appointment of Sancinito as chief municipal court judge. The court noted that, in his deposition, plaintiff had testified that it was his impression that McGrory was grooming Sancinito to be his successor. He said that this impression was based on his personal observations. He also testified that, if he remembered correctly, McGrory had written a letter to Palmer recommending Sancinito's appointment as chief municipal court judge.

The trial court additionally determined that plaintiff's deposition testimony refuted any claim he might make that the reason articulated for appointing Sancinito to the position as chief municipal court judge was a pretext for unlawful age discrimination. Plaintiff had testified that he had no evidence that McGrory harbored any discriminatory or retaliatory animus towards him. Plaintiff also had testified that McGrory was not hostile to him because of his age.

Plaintiff argues that his testimony was an insufficient basis upon which to determine that the City chose Sancinito as chief municipal court judge for legitimate and non-discriminatory reasons. We disagree. Plaintiff testified that he personally observed McGrory grooming Sancinito to succeed him as chief municipal court judge. Moreover, Palmer testified that McGrory had recommended Sancinito's appointment and he based his decision on McGrory's recommendation. In our view, this evidence was sufficient to establish that the City had a legitimate and non-discriminatory reason for appointing Sancinito as chief municipal court judge rather than plaintiff.

Plaintiff also contends that he presented sufficient evidence to raise a jury issue as to whether the reasons given for appointing Sancinito were a pretext for unlawful age discrimination. Again, we disagree. At his deposition, Palmer testified that he appointed Sancinito based on McGrory's recommendation, and plaintiff testified that McGrory had no animus towards him because of his age. Palmer additionally testified that he did not even know that plaintiff was older than Sancinito.

Plaintiff further argues that Feigenbaum's deposition testimony indicates that Palmer did not appoint Sancinito on the basis of McGrory's recommendation. Feigenbaum testified, however, that she and Palmer discussed the appointment but did not discuss specific candidates. Thus, Feigenbaum's testimony does not refute Palmer's assertion that he chose Sancinito based on McGrory's recommendation.

Plaintiff additionally argues that he presented sufficient evidence to support a retaliation claim under the NJLAD. Plaintiff alleged that Palmer did not appoint him to be chief municipal court judge in retaliation for plaintiff's lawsuit against the City, in violation of the NJLAD.

N.J.S.A. 10:5-12(d) provides in pertinent part that it is unlawful for a person "to take reprisals against any person because that person has opposed any practices or acts forbidden under [the NJLAD]" or because that person has filed a complaint under the NJLAD. Plaintiff alleged in his lawsuit that he had not been paid the correct salary and the city had wrongfully denied him accrued sick and leave time, but this was not a claim based on any "practices or acts" forbidden by the NJLAD. Thus, plaintiff's allegation that Palmer retaliated against him for filing that lawsuit did not state a claim for retaliation under N.J.S.A. 10:5-12(d).

Furthermore, in his deposition testimony, Palmer stated that he did not recall whether he knew about plaintiff's lawsuit when he appointed Sancinito as chief municipal court judge. He also said that the lawsuit would not have been a factor in whether plaintiff should be appointed to the position. Thus, plaintiff's retaliation claim was not cognizable under the NJLAD. It also was entirely lacking in factual support.

We accordingly conclude that the trial court correctly determined that defendants were entitled to summary judgment on plaintiff's failure-to-promote claim and properly refused to reconsider that determination.

IV.

Next, plaintiff argues that the trial court erred by granting summary judgment to defendants on his pay claim and refusing to grant his motion for reconsideration of that determination. Plaintiff contends that, under the City's ordinances, he was entitled to be paid the same salary as a full-time judge, even though he was a part-time judge.

The trial court determined that plaintiff's pay claim was time-barred, not supported by the City's ordinances, and not cognizable under the NJCRA. The court also refused to reconsider that determination. In our view, the trial court's rulings were correct.

The record indicates that plaintiff was appointed as a part-time municipal court judge on June 14, 2000. Plaintiff's salary was $54,275, as prescribed by Ordinance 96-118, which was adopted in 1996. On March 17, 2000, the City adopted Ordinance 00-19, which established the salary ranges for municipal court judges but made no mention of part-time municipal court judges. Ordinance 00-105, which was adopted on December 22, 2000, provided that part-time municipal court judges would be paid $55,577 in 2000 and $57,221 in 2001. Plaintiff's salary was increased in accordance with Ordinance 00-105.

Plaintiff alleged that he was entitled to the salary of a full-time judge because Ordinance 00-19 established the salary for all of the City's municipal court judges. However, as we have explained, Ordinance 00-19 did not mention and did not apply to part-time judges. Indeed, Ordinance 96-118 had previously recognized the position of part-time municipal court judge and established the salary for that position. Furthermore, Ordinance 00-105 specifically increased the salary for part-time municipal court judges for 2000 and 2001.

We are therefore satisfied that the trial court correctly determined that the City's ordinances provided no basis for plaintiff's claim that he was entitled to the salary of a full-time municipal court judge. Plaintiff was a part-time judge and he was paid as a part-time judge in accordance with the City's ordinances.

The trial court also determined that plaintiff's pay claim was not cognizable under the NJCRA. The court noted that plaintiff had alleged he was denied his correct salary without procedural due process. The court correctly determined that the NJCRA does not provide any remedy for an alleged violation of the right to procedural due process. Indeed, as the court pointed out, N.J.S.A. 10:6-2(c) only recognizes claims for the deprivation of "substantive due process" rights.

The trial court additionally determined that, to the extent plaintiff was alleging that he had been denied the right to substantive due process because he was paid as a part-time rather than a full-time judge, his claim was legally meritless. The court correctly observed that plaintiff did not have a substantive due process right to any particular salary.

"[S]ubstantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that 'shock the conscience or otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to human dignity.'" Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363-71 (1996) (quoting Weiner v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)). Plaintiff's salary claim does not meet this standard.

Plaintiff further argues that the trial court erred by finding that his pay claim was time barred. In view of our determination that plaintiff's salary claim was legally and factually groundless, we need not address this contention.

We therefore conclude that the trial court correctly determined that defendants were entitled to summary judgment on plaintiff's pay claim, and the court properly refused to reconsider that determination.

We have considered plaintiff's other arguments, including his contention that the trial court's written opinion improperly incorporated parts of defendants' brief and his contention that the trial court should have granted him partial summary judgment on this claim for accrued vacation and sick leave time. We are convinced that these arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20120705

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