On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6761-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
Before Judges Fuentes, Grall and Ashrafi.
The litigation that led to this appeal is based on a charge of wage discrimination allegedly attributable to preferential hiring dates given to police officers with Irish ancestry. Along with plaintiff, they were appointed to the West Orange Police Department (Department) in 2004. Plaintiff asserts that as a consequence of their favorable hiring dates, the Irish officers reached the second step of the pay scale in January 2005, a year before he did, and consequently have been and will continue to be paid more for work done after that date.
Plaintiff first filed suit in August 2007 in Federal District Court. He filed this complaint in State court in August 2008, after the District Court concluded that his federal claims were time-barred and dismissed the state law claims. On January 4, 2011, the trial court dismissed the complaint as subject to and barred by a two-year limitations period that commenced when plaintiff was hired. On March 18, 2011, the court denied reconsideration and leave to file an amended complaint.
When the court dismissed the action in January 2011, the only claims remaining were violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and violations of the Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, which are premised on provisions of the State Constitution prohibiting discrimination and establishing a system of public employment based on merit and fitness. N.J. Const. art. I, ¶¶ 1, 5 and art. 7, § 1, ¶ 2. By prior orders, the court disposed of plaintiff's other claims as follows: 1) an order of March 19, 2009 dismissed with prejudice and denied leave to amend his claims against the Department, dismissed with prejudice and denied leave to amend his claims based on conduct criminalized in Title 2C, and granted plaintiff leave to add claims asserting torts and violations of the CRA; 2) an order of August 14, 2009 dismissed his contract and tort claims based on discrimination; and 3) an order of November 20, 2009 dismissed negligence claims.*fn2
Plaintiff appeals. Although we reject all other claims of error, we agree that Alexander v. Seton Hall University, 204 N.J. 219, 234-36 (2010), permits him to proceed with an action to recover for disparate wages paid during the two-year period preceding the filing of his complaint even though the discriminatory act giving rise to the disparity occurred outside the limitations period. Accordingly, we remand those claims for further proceedings and affirm the court's determinations on all other issues.
Defendants urge us to consider and grant a motion for summary judgment on the merits. That motion was pending and not resolved when the court dismissed the complaint as time-barred. Because the record on appeal does not include a "statement of all items submitted to the court on the summary judgment motion," R. 2:6-1(a)(1), or defendants' statement of undisputed facts and the briefs submitted to the trial court, R. 4:46-2(a), this is not a case appropriate for exercise of this court's original jurisdiction. R. 2:10-5.
Eldridge Hawkins II is the plaintiff. The defendants are the Department; the police director, John K. Sayers; the police chief, James Abbott; and an officer, Sergeant Feder, of the Department's internal affairs unit assigned to oversee the background checks done on those named on the civil service list of persons eligible for appointment as police officers in West Orange as of March 2004.
Plaintiff describes himself as an African American male of "brown" color. Director Sayers and Chief Abbott acknowledge Irish ancestry. The two officers of Irish ancestry who plaintiff claims were given preferential hiring dates are Brad W. Squires, who is of "Irish descent," and William D. Sayers, who is the nephew of Director Sayers and whose ancestors are Italian, Irish, German and English. Plaintiff identifies three other officers hired in 2004 who were treated less favorably than Squires and Sayers. They are Partick J. Matullo, III, Michelle A. Nagle and John A. Rolli. Although the Department does not inquire about an applicant's ancestry, since the commencement of this litigation all of the allegedly disfavored officers, including plaintiff, have claimed to have some Irish ancestors.
The hiring and appointment of officers of the Department is subject to West Orange No. 1592-99; to the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6; and to state laws governing the organization of municipal government and police departments and requiring departments to give officers temporary or probationary appointments until they complete training at a school approved by the State's Police Training Commission. N.J.S.A. 40:69A-32, -43 (municipal government); N.J.S.A. 40A:14-118 (organization of police departments); N.J.S.A. 40A:14-122 (qualifications of police officers); N.J.S.A. 52:17B-67 to -69.1 (police training).
By West Orange ordinance, the mayor has the authority to appoint police officers, but the mayor may assign that duty to a police director. The mayor of West Orange appointed Director Sayers, and Director Sayers made the appointments at issue in this case.
The West Orange ordinance also sets forth standards for appointment of police officers - eligibility based on civil service testing; satisfaction of statutory qualifications, including being a person of "good moral character" who has not been "convicted of any criminal offense involving moral turpitude," N.J.S.A. 40A:14-122(4); and capacity to perform duties as confirmed by physical and ...