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Carmichael v. Thomson

United States District Court, D. New Jersey

September 27, 2018

JOHN SCOTT THOMSON, et al., Defendants.

          Cheryl L. Cooper, Esq., LAW OFFICES OF CHERYL L. COOPER -and-Paul D. Brandes, Esq. VILLARI BRANDES & GIANNONE, PC Attorneys for Plaintiff

          Christine O'Hearn, Esq. BROWN & CONNERY, LLP, Attorney for County Defendants Daniel Edward Rybeck, Esq.

          John C. Eastlack, Jr., Esq., Lilia Londar, Esq., WEIR & PARTNERS Attorneys for City Defendants




         Plaintiff Anthony Carmichael (hereinafter, “Plaintiff”) brought this employment action against Defendants City of Camden, County of Camden, and John Scott Thomson, Orlando Cuevas, Michael Lynch, Louis Vega, Joseph Wysocki, and J.L. Williams, in their official capacities as employees of the City of Camden, the County of Camden, or both (collectively, “Defendants”). Plaintiff, formerly a Lieutenant in the Camden City Police Department and now a Captain in the Camden County Police Department, generally alleges that Defendants engaged in retaliation against him based on protected activity in violation of the New Jersey Conscientious Employee Protection Act, the New Jersey Law Against Discrimination (“NJLAD”), the New Jersey State Constitution, the First Amendment of the United States Constitution, and 42 U.S.C. § 1983 and/or race discrimination in violation of NJLAD and § 1983. This Opinion addresses only Plaintiff's claims against County Defendants for allegedly discriminating and/or retaliating against Plaintiff by failing to promote him to Captain during or soon after the formation of the Camden County Police Department in May 2013 and does not address any of Plaintiff's claims against City Defendants.[1]

         This matter comes before the Court on County Defendants' motions for summary judgment on Counts Eleven, Twelve, Thirteen, and Fifteen of the First Amended Complaint. (Motion for Summary Judgment (hereinafter “County Defs.' Mot.”) [Docket Item 63].) County Defendants also seek to strike the Declaration of Darnell Hardwick and exhibits in Plaintiff's papers submitted in opposition to County Defendants' motion for summary judgment. (Motion to Strike [Docket Item 138].)

         The principal issues to be decided are, discovery having been concluded, whether there are genuine issues of material fact from which, giving all reasonable inferences to Plaintiff, a jury could reasonably find that County Defendants failed to promote Plaintiff to the rank of Captain in the Camden County Police Department due to race discrimination or due to retaliation in violation of his First Amendment rights. For the reasons discussed below, the motion for summary judgment will be granted in part and denied in part.

         II. Defendants' Motion to Strike Hardwick Declaration and Exhibits

         As a preliminary matter, the County Defendants' motion to strike the Declaration of Darnell Hardwick and exhibits in Plaintiff's papers submitted in opposition to County Defendants' motion for summary judgment, (Motion to Strike [Docket Item 138]), shall be granted in part and denied in part.

         Plaintiff Carmichael includes a Declaration by Darnell Hardwick [Docket Item 75-8] plus numerous documents attached thereto as Exs. 1-27. Mr. Hardwick is President of the Camden County NAACP branch and has been a Civil Service employee since 1981 and a union shop steward for Local 1032 of the Communications Workers of America (Hardwick Dec. ¶ 1), but he has had no personal involvement with the matters in dispute in this case other than in reviewing and gathering documents and holding meetings and “hav[ing] personal interaction with” Plaintiff and other Camden City Police Dept. union officials and members of the former Camden City Police Dept., in his capacity as President of the Camden County NAACP. (Id. ¶¶ 1-3.) He has reviewed discovery and certifications of witnesses in this case and argues in his declaration why he believes some statements are false or incredible or contradicted by other statements or documents he has gathered or reviewed. He also expresses numerous opinions that the processes employed for recruiting and hiring officers and superior officers, as well as for Intergovernmental Transfers, did not comport with the Camden County Defendants' various constitutional, statutory, and New Jersey Civil Service requirements.

         The Camden County Defendants seek to strike the Hardwick Declaration and its attached documents in their entirety on two grounds: (1) That Plaintiff failed to identify Mr. Hardwick in his Rule 26 pretrial disclosures as a person with knowledge or information related to the County Defendants and Plaintiff produced none of the attached documents in discovery, which ended on March 31, 2016 as to the Camden County Defendants (extended to April 8, 2016 for the limited purpose of conducting the deposition of plaintiff); and (2) that the Hardwick Declaration violates Fed.R.Civ.P. 56(c) and L. Civ. R. 7.1 because it is fraught with argument and opinion. While opinion testimony of an expert witness is permitted in an affidavit opposing summary judgment, there is no dispute that Plaintiff does not identify Mr. Hardwick as an expert nor does Plaintiff seek to qualify him as an expert under Rule 702, Fed. R. Ev.

         Plaintiff concedes that he did not identify Mr. Hardwick as a person with knowledge as to Carmichael's claims against the County Defendants, but that he identified Hardwick as a person with relevant knowledge as to the Camden City Defendants, some of whom, in their new official capacities, are also sued as Camden County Defendants. [P. Opp., Docket Item 158 at 1-2.] In fact, as Defendants point out, the sole mention of Mr. Hardwick during the entire time of factual discovery in this case was contained in Plaintiff's Rule 26 Disclosures, dated and served November 13, 2015, which stated in relevant part:

The following have knowledge and/or information regarding illegal practices by City of Camden, the City of Camden Police Department with respect [to] discipline and/or harassment and/or discrimination.
. . .
Darnell Hadwick [sic] -- Camden NAACP.

         [Pl. Rule 26 Disclosures at p.5, attached to Certification of Benjamin S. Teris, Esq. at Ex. A (Docket Item 138-1)]. The Court agrees with Defendant that nothing in Plaintiff's Rule 26 Disclosures placed the Camden County Defendants on notice that Mr. Hardwick had knowledge about the Camden County Defendants related to this case. Furthermore, if during the course of discovery Plaintiff wished to modify his description of Mr. Hardwick's knowledge, Plaintiff had the duty to supplement his disclosures in a timely fashion and did not do so. Also, Plaintiff had the duty to timely produce all relevant documents required by Rule 26(a)(1), including those attached to the new Hardwick Declaration, none of which were produced in discovery in this case according to Camden County's attorney Mr. Teris (see Teris. Cert. at ¶ 14.)

         Plaintiff asserts that his counsel's use of the Hardwick Declaration and documents in opposition to the County Defendants' present summary judgment motion on December 30, 2017, which was 20-plus months after the April 18, 2016, conclusion of factual discovery on the claims against the Camden County Defendants, was not as late as it appears. Plaintiff points out that his counsel had earlier provided the Court and the County Defendants with the Hardwick Declaration and attached documents on February 1, 2017, after the Court had found that Plaintiff had defaulted on his opportunity to oppose the present motion for summary judgment. Plaintiff sought reconsideration of this Court's order denying a further extension of his deadline for submitting opposition and attached the Hardwick Declaration on February 1, 2017 (it is dated January 24, 2017) [Docket Item 75-3], as an example of reasons why Plaintiff had substantial opposition and should be given a last chance to put it forward notwithstanding his counsel's tardiness. [See Docket Item 75-51]. The Court did not parse the specific contours of the Hardwick Declaration and its attachments nor of the other explanatory materials, leaving that until the actual summary judgment phase. The Court granted reconsideration as a matter of compassion in light of Plaintiff's counsel's medical or other personal needs, not because the Hardwick Declaration was particularly compelling. [Order filed Dec. 15, 2017 (Docket Item 123)].

         Be that as it may, Plaintiff's introduction of the Hardwick Declaration on February 1, 2017, was itself untimely by almost ten months after the close of Camden County Defendants discovery on April 8, 2016, and it came five months after the Camden County Defendants filed for summary judgment. Indeed, despite naming Mr. Hardwick as a person with knowledge as to discrimination by the Camden City Policy Department two years earlier, Plaintiff's attorney did not even speak with him until January 5, 2017. (Docket Item 158 at 4, n.5).

         The consequence of failing to provide facts and documents in discovery, when required in Pretrial Disclosures or discovery, is that such evidence cannot be used in opposition to summary judgment. Rule 37(c)(1), Fed.R.Civ.P. makes this obligation clear, providing: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e) . . . the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” The rules impose serious continuing obligations of disclosure of a party's case so that discovery can be focused and this expensive and time-consuming aspect of litigation can be focused and brought to a reasonable and fair conclusion. The exclusion of such evidence is meant to be “self-executing” according to the Advisory Committee Note accompanying enactment of the current version of Rule 37(c) in 1993. According to the Advisory Committee, “[t]his automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing or on a motion, such as one under Rule 56.” Yet Plaintiff's counsel here nonchalantly downplays this obligation by arguing that the Camden Defendants could have questioned Plaintiff Carmichael at deposition about his knowledge of any documents or information possessed by Mr. Hardwick. [Pl. Opp. (Docket Item 158) at 3-4]. This is a bizarre suggestion given that the Camden Defendants took Carmichael's deposition by April 8, 2016, and Plaintiff's counsel herself didn't bother to even speak with Mr. Hardwick about this case, according to her letter-brief, until January 5, 2017. [Id. at 4, n.5]. Plaintiff must fulfill discovery obligations by providing timely and complete discovery, not be expecting opposing counsel to go on a treasure hunt for the hidden contentions and facts.

         The use of Mr. Hardwick as a witness against the County Defendants, as well as the use of the new records he has attached, is precluded unless Plaintiff shows that the failure to identify the witness and offer his opinions and documents was “substantially justified or harmless.” Rule 37(c)(1), Fed.R.Civ.P. Plaintiff's failure here was neither substantially justified or harmless. Plaintiff's counsel apparently did not investigate her own client's claim until after discovery was over; Plaintiff took no discovery and did not speak with Mr. Hardwick or review the documents he collected, despite knowing of his existence, until almost three years after filing the Complaint, while the County Defendants diligently pursued discovery and timely filed their motion for summary judgment. The County Defendants have been harmed by these delays and false starts, when they have a right to rely upon the completeness and integrity of Plaintiff's disclosures as they formulated their summary judgment motion in 2016. They have also been prejudiced by having to deal with this issue of Plaintiff's continuing delays through several additional briefings and letters to the Court. While exclusion of the unidentified witness Mr. Hardwick and the contents of his opinions is fully justified, the Court reaches a different conclusion regarding the Hardwick documents that come from the public record; such documents were equally available to the County Defendants and may shed important light on the issue of the County's delay in promoting Plaintiff Carmichael to the rank of Captain.

         The County's witnesses are in a position to address these documents, if necessary, and they shall not be excluded on the ground of Plaintiff's late production. As public documents, the items attached to the Hardwick Declaration as Exs. 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, and 27 appear to come from public sources, including the County itself.

         The Court has likewise considered the prudential factors for exclusion of evidence for discovery failures articulated in Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000) (upholding preclusion of evidence of future lost earnings where plaintiff failed to provide discovery concerning post-termination employment). The Nicholas case indicates four factors to consider, namely: (1) the prejudice or surprise of the party against whom the evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly or efficient trial of the case; and (4) bad faith or willfulness in failing to comply with a court order or discovery obligation. Nicholas, 227 F.3d at 148. Additionally, the Court of Appeals in Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997), has indicated two additional considerations: (5) the importance of the excluded testimony; and (6) the parties explanation for failing to disclose. The Court finds that (1) the County Defendants are prejudiced and surprised - they had filed their summary judgment motion, obviously a heavy-duty task, and awaited the tardy opposition of Plaintiff, only to learn months later of this undisclosed witness and his investigation; (2) Defendants have no ability to cure the prejudice if Mr. Hardwick were permitted as a witness discussing his investigation and findings, requiring reopening of discovery long since closed and eventually redrafting of a second summary judgment motion; on the other hand, the County has the capacity to assimilate the documents under its pretrial planning, and the County could be given time to identify any rebuttal documents; (3) disruption of trial is not a concern because the case is not at trial; (4) Plaintiff's counsel's performance has been sporadic and troubling in this case, exhibiting a tendency to blame defense counsel for litigation problems of her own making; (5) the importance of the excluded testimony of Mr. Hardwick is not great, assuming Plaintiff has identified other witnesses with knowledge of the alleged events; and (6) Plaintiff's counsel's excuses, as discussed above, are less than compelling; while accommodation is given to Plaintiff's counsel's health challenges, including the ability to even present opposition to this summary judgment motion, the fundamental demands of litigating a case counsel has brought and pursues over three years cannot be discarded like mere suggestions. On balance, the provision for automatic exclusion of Mr. Hardwick as a witness in Plaintiff's case against the County Defendants is well-warranted, while the exclusion of the public documents on grounds of their late production would not be warranted. (The Court does not determine their admissibility into evidence at this time.)

         Similarly, Defendants' objection to the form of Mr. Hardwick's Declaration is also well taken.

         The nature of Mr. Hardwick's testimony is also objectionable. Plaintiff seeks to rely on many purported expert opinions, arguments, or legal conclusions by Mr. Hardwick, who has no academic background or experience in law enforcement and who has not been certified as an expert witness in this case. Cf. Yazujian v. PetSmart, 729 Fed.Appx. 213, 215-16 (3d Cir. 2018) (holding that the district court did not abuse its discretion in declining to permit witness to testify as an expert in retail safety where the proposed witness had no relevant academic background, relevant training, or relevant work experience, other than as a stock clerk).

         The Hardwick Declaration expresses opinions on police officer qualifications, police personnel records, Civil Service Commission records and rules, and the credibility of other witnesses' statements. Not only are such opinions regarding specialized matters of personnel rules and practices inadmissible because Mr. Hardwick has not been identified as an expert under Rule 702, but they also may not be presented, as many are here, as legal arguments and conclusions in an affidavit or declaration pursuant to Local Civil Rule 7.2(a), which provides in relevant part:

[D]eclarations . . . shall be restricted to statements of fact within the personal knowledge of the signatory. Argument of the facts and the law shall not be contained in such documents. Legal arguments and summations in such documents will be disregarded by the Court and may subject the signatory to appropriate censure, sanctions or both.

         L. Civ. R. 7.2(a). A few examples of improper opinions and legal conclusions in the Hardwick Declaration suffice to prove the point:

• Paragraph 5: “The Certification of Defendant Michael Lynch, from the Carmichael matter contains numerous inaccurate statements which are verified by the documents attached to my Declaration.”
• Paragraph 6: “Some of the representations of by the County Defendants in both the Carmichael and Sosinavage matters also are not accurate or truthful and are proven inaccurate through the documents I have provided to Plaintiffs' counsel in preparing my declaration.”
• Paragraph 9: “When the County wanted to establish the CCMPD, in order to avoid the Civil Service Rules for hiring and promotions, they were forced to apply to the CSC for a ‘pilot program.'”
• Paragraph 13: “However, the CSC Pilot Program Order does contain a provision which prohibited ‘rank jumping,' and included an example of prohibited promotions.”
• Paragraph 31: “This is consistent with the provisions of N.J.A.C. 4A:4-7.1(A)(b).”
• Paragraph 35: “The representation by Mr. Goldberg, to the Court in that matter was inaccurate.”
• Paragraph 62: “Neither of these two (2) individuals were PTC certified.”
• Paragraph 64: “Upon receipt of these documents, I reviewed the content and determined that all 8 of these applicants were not PTC certified at the time of hire; had no prior police experience; and were all civilians, forcing the CCMPD to pay for and have these individuals trained at the Police Academy. According to my review, each of these eight (8) individuals did not meet the requirements for hire under the Pilot Program.”
• Paragraph 65: “Each of these 8 individuals were younger than 40 years of age, and none were PTC certified. These individuals were hired by CCMPD over former Camden City Police Officers who had applied for employment with the CCMPD prior to the dissolution of the Camden Police Department, and during the Pilot Program.”
• Paragraph 71: “Each of the three (3) above officers identified above, Sandrock, Kunkle, and DeSantis, were and are younger than Plaintiff Sosinavage, and less qualified than Sosinavage.”

(Hardwick Declaration [Docket Item 75-8].) In accordance with Local Civil Rule 7.2(a) and Federal Rule of Civil Procedure 56(e) (requiring that a declaration filed in connection with a motion for summary judgment must “be made on personal knowledge”), the Court will exercise its discretion to disregard all expert opinion, argument, or legal conclusions in the Hardwick Declaration.

         An appropriate order will be entered granting the Camden County Defendants' motion to strike Mr. Hardwick's declaration in opposition to their summary judgment motion, but denying the motion to strike the documents ...

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