NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5576-16T1
DANIEL CHIRINO,
Plaintiff-Appellant,
v.
CITY OF HOBOKEN and DAWN ZIMMER, Mayor of Hoboken in her individual capacity,
Defendants-Respondents. _____________________________
Submitted March 12, 2019 – Decided August 16, 2019
Before Judges Yannotti and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3671-14.
Louis Alexander Zayas, attorney for appellant.
Hanrahan Pack, LLC, attorneys for respondents (Thomas B. Hanrahan, of counsel and on the brief; Kathy Ann Kennedy, on the brief).
PER CURIAM Plaintiff Daniel Chirino, a former member of defendant City of Hoboken's
Police Department (HPD), appeals from evidentiary rulings made by the trial
judge on May 30, 2017 and June 21, 2017, and from the judge's July 7, 2017
order granting Hoboken's Rule 4:37-2(b) motion for involuntary dismissal of
plaintiff's complaint.1 His complaint alleged his termination as a Hoboken
police officer violated the New Jersey Law Against Discrimination (NJLAD),
N.J.S.A. 10:5-1. It was undisputed that plaintiff's termination arose from two
incidents involving disputes between plaintiff and his former girlfriend that
resulted in disciplinary charges being brought against him based upon plaintiff
lying to his superiors about one incident and a final restraining order (FRO)
being issued against plaintiff under the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35.
On appeal, plaintiff argues that the trial judge improperly denied him the
opportunity to introduce evidence from a prior discrimination litigation
involving Zimmer because the trial judge "incorrect[ly] interpret[ed] the law of
1 In addition, plaintiff appeals from another judge's April 7, 2017 order granting Hoboken's former mayor, defendant Dawn Zimmer's motion for summary judgment dismissing his complaint and a May 17, 2017 order denying reconsideration of that order. However, plaintiff's appellate brief does not address either order. For that reason, we deem his appeal from those orders to be waived. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015). A-5576-16T1 2 the case doctrine." He also contends he adduced sufficient evidence of
discrimination to warrant the denial of the Rule 4:37-2(b) motion because there
were "triable issues of material fact that Hoboken had no lawful authority to
terminate plaintiff without the approval of [its] police chief." We disagree and
affirm, substantially for the reasons expressed by the trial judge, Francis B.
Schultz, in his oral and written decisions issued in support of each order.
I.
"We present the facts adduced at trial 'accepting as true all the evidence
which supports [plaintiff's position] and according him the benefit of all
inferences which can reasonably and legitimately be deduced therefrom,' as we
must, given the procedural posture of this case." Smith v. Millville Rescue
Squad, 225 N.J. 373, 379-80 (2016) (alteration in original) (quoting Verdicchio
v. Ricca, 179 N.J. 1, 30 (2004)).
Plaintiff, who identifies as Hispanic, was hired by Hoboken as a police
officer in 2008 and had no disciplinary issues until October 1, 2011. On that
day, he was on duty when his former girlfriend, M.C., contacted him and stated
that she intended to commit suicide. Plaintiff abandoned his post without
permission and went to M.C.'s Jersey City residence while armed and dressed in
full uniform. Upon his arrival, plaintiff noticed that M.C. was with a man, J.A.,
A-5576-16T1 3 whom plaintiff had heard over the phone when M.C. called. A verbal altercation
ensued, and J.A. contacted the Jersey City Police Department (JCPD) to report
a domestic disturbance. Plaintiff left M.C.'s residence and returned to his post
in Hoboken before any Jersey City police officers arrived.
The JCPD informed the HPD that plaintiff had been involved in a
domestic disturbance incident. Two HPD sergeants questioned plaintiff about
whether he had been in Jersey City, which he denied. Due to the conflicting
reports, the sergeants asked plaintiff to write an interdepartmental
memorandum, in which plaintiff again stated that he had not been in Jersey City.
In the memo, plaintiff accused J.A. of filing a false police report and contended
that the accusations against him were false. Plaintiff also stated that he had been
told by "other Hoboken [p]olice officers and mutual friends" that J.A. was a
"manipulative and compulsive liar," and that J.A. filed the report in retaliation
and because he took issue with plaintiff's relationship with M.C.
The next day, plaintiff and M.C. made plans to see one another. When
plaintiff arrived at M.C.'s home, he saw her drive away with J.A. Plaintiff
became upset and texted M.C. that he had suicidal thoughts, and M.C. forwarded
the text messages to the JCPD and the HPD.
A-5576-16T1 4 In response to receiving the texts, Hoboken's Internal Affairs (IA) officers
met with plaintiff, and questioned him about his relationship with M.C. and the
text messages he sent. During the inquiry, plaintiff confirmed that he was
continuing to experience suicidal thoughts.
Plaintiff was taken to the hospital for an evaluation and was released the
following day. During his subsequent interview with a psychologist, plaintiff
admitted that he did not intend to hurt himself, but said so due to the effect it
would have on M.C. A few days later, plaintiff underwent a "fit for duty
examination," and was deemed unfit. He was then required to be medically
cleared, his weapon was removed from his home, and he was assigned "light
duty" for three months, during which time he underwent counseling.
According to plaintiff, the next incident, which led to the entry of an FRO
against him, arose from calls he received from M.C. on November 25, 2011 and
from an incident the next day when M.C. let herself into plaintiff's apartment
and assaulted him. Plaintiff stated that when M.C. entered his apartment, he
called 911 and explained the situation. M.C. attempted to leave plaintiff's
residence to avoid the authorities, but the police arrived and arrested M.C. As
a result of this incident, a FRO was issued against both plaintiff and M.C. on
December 22, 2011. An amended FRO was issued on February 17, 2012, which
A-5576-16T1 5 allowed plaintiff to possess a firearm in the course of duty and on March 29,
2012, the FROs against plaintiff and M.C. were dismissed by consent.
However, the FRO issued against plaintiff triggered another IA
investigation into his conduct. During that investigation, IA confirmed that
plaintiff was in fact in Jersey City on October 1.
The IA investigation into the November 26 incident also led to the HPD
imposing sanctions on plaintiff. As stated in a Preliminary Notice of
Disciplinary Action (PNDA) issued in December, plaintiff was placed on
administrative leave and suspended without pay for fifty days as of December
30, 2011, due to his inability to carry a firearm as a result of the FRO.
On February 16, 2012, at a meeting plaintiff and his attorney had with IA
personnel, he received a Notice of Administrative Investigation that stated an
investigation was being conducted regarding his reporting of the October 1
incident. At the meeting, plaintiff confessed that he lied about what had
transpired on October 1, including his not abandoning his post and accusing J.A.
of filing a false police report. Plaintiff was asked to submit a memorandum in
which he admitted in writing to lying, and submitted it on February 17, 2012.
On February 28, 2012, plaintiff received a new PNDA based on his admitted
A-5576-16T1 6 untruthful reporting about the October 1 incident. According to the PNDA,
Hoboken sought plaintiff's immediate termination.
On June 14, 2012, Hoboken's Chief of Police, Anthony Falco, wrote a
letter to Hoboken's Business Administrator Quentin Wiest, the individual
responsible for determining plaintiff's discipline, recommending that plaintiff
not be terminated. Falco urged Wiest to consider "the totality of the
circumstances," such as plaintiff's family and personal situations, before
rendering a decision, and opined that plaintiff had been suffering from Chronic
Stress Syndrome at the time of the infraction. He also explained that plaintiff
had previously been a "fine officer and very professional" and that given the
chance, "can again become the officer he once was."
In a second letter written on plaintiff's behalf on August 10, 2012, Falco
noted the seriousness of plaintiff's infraction and recommended that he be
disciplined, but urged Wiest not to pursue termination, which would be an
"extreme measure" based on plaintiff's history with the department, the fact that
he had had no previous disciplinary issues, his untruthfulness having been
motivated by a high level of stress, and the fact that subsequent evaluations
deemed him fit for duty.
A-5576-16T1 7 An administrative disciplinary hearing was held at plaintiff's request on
August 17, 2012, addressing the two PNDAs issued to plaintiff. The hearing
was conducted by Hoboken's then Public Safety Director, John Tooke, who had
signed plaintiff's second PNDA. Tooke was a retired, thirty-four-year veteran
of the JCPD, and served as its third in command.
After the hearing, Tooke issued a report on September 14, 2012 with his
findings. He explained that the first PNDA concerned violations of Conduct
Unbecoming a Public Employee and other Sufficient Cause, N.J.A.C. 4A:2-
2.3(a), as well as violations of the Departmental Rules and Regulations,
including Standards of Conduct, Neglect of Duty, and Conduct Subversive of
the Good Order and the Discipline of the Department. The second PNDA related
to violations of similar regulations, as well as Prohibited Activity on Duty, five
counts of Knowingly and Willfully Making a False Entry into a Report or
Record, and Failure to Properly Patrol a Post under the departmental rules.
Tooke found that plaintiff was guilty of conduct unbecoming a police
officer with regard to both PNDAs, and as to the second, he was also guilty of
the charged violations of Departmental Rules and Regulations. He explained
that conduct unbecoming a law enforcement official "is a serious violation" and
that plaintiff's actions were a "serious breach of acceptable standards of
A-5576-16T1 8 conduct" that "undermine[] the respect for law enforcement in general and
tarnish[] the reputation of the [HPD] in particular." With regard to Neglect of
Duty and Prohibited Activity on Duty, Tooke explained that failure to properly
patrol and conduct subversive to good order are "very serious violations and go
to the very core of the police service." He found that plaintiff's conduct
"undermine[d] the foundations of discipline and prevent[ed] the effective and
efficient delivery of police service." Tooke held that for both of these violations,
a six-month suspension from duty and pay was appropriate.
Finally, Tooke addressed the charge that plaintiff knowingly and willfully
made a false report, explaining that it "is the most serious administrative charge
that can be made against a law enforcement official." Tooke did not find that
plaintiff made such statements in a "haste" or "panic" as he had contended, and
that his statements falsely accused J.A. of the criminal offense of filing a false
police report, N.J.S.A. 2C:28-4. He noted that plaintiff involved other HPD
officers in his accusations.
Tooke concluded that plaintiff's "false statements were numerous,
specific, material to his job, intended to hide his wrongdoing, purposeful in the
attempt to assign blame to another and willing to involve other [o]fficers in the
act." He noted that from October 1, 2011 to February 16, 2012, plaintiff made
A-5576-16T1 9 no attempt to amend his false statements, which caused the internal investigation
to continue for over four months. Because "[h]onesty is an essential job function
of every police officer in New Jersey," Tooke found that this violation was so
egregious as to warrant termination. Based on Tooke's report, plaintiff was
notified by Hoboken in a September 28, 2012 Final Notice of Disciplinary
Action that he was terminated effective immediately, and his earlier fifty day
suspension was approved. 2
On August 21, 2014, plaintiff filed his complaint in this action contending
that he had been the subject of unlawful retaliation under the NJLAD because
he, as a Hispanic male, had been treated differently than similarly-situated
Caucasian officers when his employment was terminated. According to the
complaint, those other officers received discipline for violations that involved a
fight in which one officer was injured, filing inaccurate reports, domestic
violence, and driving while intoxicated, but were subjected to progressive
discipline and were not terminated.
2 Plaintiff appealed his termination to the Civil Service Commission. The appeal resulted in a settlement between plaintiff and Hoboken that was memorialized in a January 2014 "Settlement Agreement and Release" (Settlement Agreement) that described how Hoboken would advise other law enforcement agencies that were considering whether to hire plaintiff about the circumstances surrounding plaintiff's "resignation." Despite his efforts to secure employment, plaintiff could not find a new law enforcement position. A-5576-16T1 10 After defendants filed a successful motion under Rule 4:6-2 that led to the
dismissal of plaintiff's complaint, he filed an amended complaint on April 24,
2015, alleging unlawful termination and alleging that Zimmer aided and abetted
other government officials in terminating plaintiff's employment without
progressive discipline, violating the NJLAD as well as the New Jersey Civil
Rights Act (CRA), N.J.S.A. 10:6-1 to -2, for terminating plaintiff's employment
due to national origin, ethnicity, or race. The amended complaint survived a
second motion to dismiss because discovery was not yet completed.
In February 2017, plaintiff filed a motion for summary judgment, and
defendants filed a cross-motion for the same relief seeking dismissal of all of
plaintiff's claims. On April 7, 2017, the motion judge denied plaintiff's motion
for summary judgment and granted defendants' motion for summary judgment
as to Zimmer only.
In his accompanying twenty-one page statement of reasons, the judge
explained that there were questions of material fact that could not be determined
on the motion record relating to plaintiff's claims against Hoboken and its
defenses. Addressing the claims against Zimmer, the judge found that there was
no evidence that Zimmer had ever met plaintiff or was involved in the decision-
A-5576-16T1 11 making process that led to his termination, or that she acted in concert with any
other Hoboken officials.
Plaintiff filed a motion for reconsideration, which the motion judge denied
after he rejected plaintiff's contentions that he incorrectly determined that
Zimmer played no role in the termination. The judge explained that both
Zimmer and Angel Alicea, Director of Public Safety, testified during depositions
that Zimmer was uninvolved in the decision to terminate plaintiff, and Zimmer's
testimony was not contradicted.
At trial, Hoboken moved in limine to bar any testimony about an earlier
unrelated lawsuit successfully pursued by Alicea against Hoboken based upon
Zimmer's discriminatory conduct. In response, the judge indicated he was not
granting the motion at that time, but would consider it later if objections were
raised while the witness testified. After Alicea testified and before Zimmer took
the stand, Judge Schultz instructed the jury, sua sponte, to disregard testimony
the jury heard about the verdict entered against Hoboken during Alicea's
testimony, and that another judge already determined Zimmer had nothing to do
with plaintiff's termination.
After the close evidence, on July 7, 2017, Judge Schultz granted
defendants' motion for involuntary dismissal. In his accompanying written
A-5576-16T1 12 decision, the judge explained that plaintiff lied willfully and repeatedly
throughout the course of the investigation of the October 1 incident. The judge
set out the four-part analysis—a "slightly adjusted" version of the McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) test—and questioned whether
plaintiff had established a prima facie claim that would warrant an inference of
discrimination because his disciplinary offenses were so serious that he could
not have been performing his job at a level that met his employers' expectations.
Assuming that plaintiff had satisfied that burden, Judge Schultz also
addressed plaintiff's contentions regarding plaintiff's evidence of Hoboken's
disparate treatment of non-Hispanic officers who allegedly committed similar
offenses but were not terminated. The judge described the incidents in detail
and found that they were neither identical nor equally as serious as plaintiff's
infractions. The judge also found that while there were incidents of officers who
committed nearly identical but lesser offenses, all three of those officers were
also minorities including two who were Hispanic. The judge concluded that
plaintiff produced no evidence of discrimination against Hispanics, stating
"[n]othing offered by . . . plaintiff . . . in terms of lenient treatment to white
officers, approached plaintiff's conduct either in terms of identity or degree of
A-5576-16T1 13 seriousness." In short, the judge concluded, "plaintiff produced no evidence of
discrimination against Hispanics."
The judge also addressed plaintiff's contention that there was sufficient
evidence to support his claim that he was entitled to a lesser punishment under
the policy of progressive discipline. Citing to In re Carter, 191 N.J. 474, 484
(2007), Judge Schultz stated that there was no evidence that the "lack of
progressive discipline was . . . connected to discrimination [and b]esides,
progressive discipline is not for employees who commit serious offenses."
Judge Schultz rejected plaintiff's argument that only Falco could order his
termination. Citing to specific Civil Service regulations applicable to imposing
major discipline on a police officer, the judge concluded that "major discipline
. . . can be determined by the appointing authority or its designated
representative."
The judge found that "[t]he malicious and totally unnecessary statements
that . . . plaintiff made about J.A. place[d] his conduct in a class of its own" that
warranted termination. He then granted defendants' motion for involuntary
dismissal due to a lack of evidence of discrimination. This appeal followed.
A-5576-16T1 14 II.
In reviewing the grant or denial of a motion for involuntary dismissal, we
apply a de novo standard of review. Smith, 225 N.J. at 397. We accept as true
all evidence that supports the position of the party defending against the motion
and accord that party the benefit of all inferences that can reasonably and
legitimately be deduced therefrom. Ibid. (citing Verdicchio, 179 N.J. at 30). If,
in doing so, reasonable minds could differ, the motion must be denied. Ibid. A
motion for involuntary dismissal should only be granted "where no rational juror
could conclude that the plaintiff marshaled sufficient evidence to satisfy each
prima facie element of a cause of action." Ibid. (quoting Godfrey v. Princeton
Theological Seminary, 196 N.J. 178, 197 (2008)).
Under the NJLAD, in order to establish a prima facie case of racial
discrimination in the workplace, a plaintiff must show that (1) he belongs to a
protected group; (2) he was performing his duties at a level that met his
employer's legitimate expectations; (3) he was nevertheless terminated; and (4)
the employer sought someone to perform the same work after he left. Zive v.
Stanley Roberts, Inc., 182 N.J. 436, 450 (2005).
If a NJLAD plaintiff establishes those four elements, the burden then
shifts to defendant to demonstrate a legitimate, non-discriminatory reason for
A-5576-16T1 15 the termination. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399
(2005). If a defendant comes forward with such evidence, the burden shifts back
to plaintiff to point to evidence that the employer's proffered reason is merely a
pretext for discrimination—that is, "evidence . . . from which a factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action." Zive, 182 N.J. at
455-56. The plaintiff must show both that the employer's reason was false and
that it was "motivated by discriminatory intent." Henry v. N.J. Dep't of Human
Servs., 204 N.J. 320, 331 (2010). Performance markers, like poor evaluations,
are more properly debated and evaluated in these stages of the burden-shifting
analysis than in prong two of the prima facie case. Zive, 182 N.J. at 455.
III.
Applying these principles, we begin by addressing plaintiff's argument
that the trial judge ignored plaintiff's uncontroverted evidence that Hoboken did
not have a non-discriminatory motive to terminate his employment because
Falco did not authorize disciplinary charges or approve the termination.
Plaintiff relies upon N.J.S.A. 40A:12-118 and language in the HPD's internal
rules and regulations that places with the chief of police responsibility for
A-5576-16T1 16 discipline of the department's police officers. Specifically, he relies on HPD
Rule 7.3.1, which deals with the department's authority to discipline, and states
that "[e]xcept as otherwise provided in the Civil Service Law and N.J.S.A.
40A:14-14 to 151 . . . the department disciplinary authority and responsibility
rests with the Police[ ]Chief" (emphasis added). We conclude his reliance on
HPD Rule 7.3.1 is inapposite.
As the HPD rule expressly states, it is subject to the provisions of the Civil
Service laws and regulations. N.J.A.C. 4A:2-2.1 to -2.6 establishes the authority
for determining a police officer's violations of applicable regulations and rules
for which he or she is being subjected to "major discipline." The regulations
define major discipline to include removal and suspension for more than five
working days. N.J.A.C. 4A:2-2.2(a). Before major discipline may be imposed,
an officer is entitled to notice of the charges and an opportunity for a hearing
before "the appointing authority" or its "designated representative." N.J.A.C.
4A:2-2.5; N.J.A.C. 4A:2-2.6; N.J.A.C. 4A:2-2.13 (addressing a law enforcement
officer's entitlement to a hearing before a removal).
Here, plaintiff does not contend that Hoboken failed to follow the exact
procedure detailed in the Civil Service regulations applicable to imposition of
major discipline. Nor does plaintiff challenge Tooke's appointment as hearing
A-5576-16T1 17 officer or Wiest's designation as the appropriate authority. See N.J.S.A. 40A:14-
118; Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 98 (App. Div. 2000)
("appropriate authority" is defined as the mayor, manager, or such other
appropriate executive or administrative officer, "such as a full-time director of
public safety, or the governing body or any designated committee or member
thereof, or any municipal board or commission established by ordinance for such
purposes"). Plaintiff's contention is that Hoboken acted in a discriminatory
manner by following the HPD regulations' exception to a police chief's authority
in major discipline cases. The argument is without any merit. Further, as Judge
Schultz observed, there was no evidence that Falco's lack of involvement was
linked to any suggestion of discrimination. Rather, the evidence established that
Tooke and Wiest took Falco's recommendations into consideration before
making their decision.
IV.
Next, we consider plaintiff's argument that he adduced sufficient evidence
that defendants' stated reasons for his termination were a pretext as his removal
was actually based upon discriminatory reasons demonstrated by his disparate
treatment as compared to non-minority officers. We conclude, as Judge Schultz
found, there was no evidence of disparate treatment.
A-5576-16T1 18 At the outset, we are satisfied that even assuming plaintiff established a
prima facie claim of discrimination, Hoboken successfully met its burden to
come forward with non-discriminatory reasons for terminating plaintiff. We
agree with Judge Schultz that plaintiff's undisputed actions on October 1, 2011
were objectively serious and included plaintiff falsely accusing someone of
committing a crime.
We "have upheld dismissal of employees, without regard to whether the
employees have had substantial past disciplinary records, for engaging in
conduct that is unbecoming to the position." In re Hermann, 192 N.J. 19, 34
(2007). In doing so, we have held law enforcement officers to a higher standard
of responsibility and conduct than other public employees. Moorestown v.
Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965). "[A] police officer
[cannot] complain that he or she is being held to an unfairly high standard of
conduct. Rather, 'it is one of the obligations he undertakes upon voluntary entry
into the public service.'" In re Phillips, 117 N.J. 567, 577 (1990) (quoting In re
Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)).
In NJLAD cases, once the employer demonstrates a non-discriminatory
reason for an adverse employment action, the plaintiff has an opportunity to
show that the employer's purported reason is merely pretext. Gerety, 184 N.J.
A-5576-16T1 19 at 399. To establish pretext, a plaintiff is entitled to offer evidence as to
"whether unequal treatment has occurred, intentionally or as a result of a policy's
impact on members of a protected group, [through] two approaches [that] have
been generally accepted. . . . disparate treatment and disparate impact—and we
acknowledge both as cognizable under the [NJ]LAD." Id. at 398. Disparate
treatment is defined as where "[t]he employer simply treats some people less
favorably than others because of their race, color, religion, sex, or national
origin." Ibid. (quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82
(1978)).
"Evidence of pretext sufficient to permit the employee to reach a jury may
be indirect, such as a demonstration 'that similarly situated employees were not
treated equally.'" Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304
(App. Div. 2000) (citation omitted). "An inference of discrimination may arise
if similarly situated employees [but] of a different [protected class] received
more lenient treatment than that afforded plaintiff." Ewell v. NBA Props., 94 F.
Supp. 3d 612, 624 (D.N.J. 2015) (citing Simpson v. Kay Jewelers, 142 F.3d 639,
645 (3rd Cir. 1998)).
Plaintiff must present comparator evidence sufficient to prove that he or
she is "similarly situated" to his or her comparators, and that these employees
A-5576-16T1 20 have been treated differently or favorably by their employer. See Williams v.
Morton, 343 F.3d 212, 221 (3d Cir. 2003); Simpson, 142 F.3d at 645. "An
'inference of discrimination' does not [necessarily] arise 'anytime a single
member of a non-protected group was allegedly treated more favorably than one
member of the protected group, regardless of how many other members of the
non-protected group were treated equally or less favorably.'" Jason, 329 N.J.
Super. at 307 (quoting Simpson, 142 F.3d at 646). There must be proof that the
individuals being compared were similarly situated.
To determine whether employees are similarly situated, "courts tend to
consider whether the plaintiff and the comparator had similar job
responsibilities, were subject to the same standards, worked for the same
supervisors, and engaged in comparable misconduct." Ewell, 94 F. Supp. 3d at
624. Similarly-situated employees must "have engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer's treatment of them for it." Mitchell v. Toledo
Hosp., 964 F.2d 577, 583 (6th Cir. 1992). That does "not mean to suggest that
[the listed] aspects of 'similarly situated' status are exhaustive or of equal
significance in different employment contexts. The trial [court must] make a
sensitive appraisal in each case to determine the most relevant criteria." Jason,
A-5576-16T1 21 329 N.J. Super. at 305 (first alteration in original) (quoting Peper, 77 N.J. at 85).
"Thus there is no bright-line rule for determining who is a 'similarly situated'
employee." Ibid.
Applying these guiding principles, we conclude that there was insufficient
evidence of pretext based upon disparate treatment substantially for the reason
stated by Judge Schultz in his careful, sensitive analysis of plaintiff's proofs.
Suffice it to say, as Judge Schultz found, plaintiff's evidence demonstrated that
Hispanic and other minority members of the HPD received less harsh
punishment than plaintiff for violations and many of the violations in those other
matters involved different types of conduct. There was no evidence that a jury
could rely upon to find that plaintiff proved Hoboken's reasons for his
termination were a pretext based upon disparate treatment of non-minority
officers.
We turn to plaintiff's challenge to Judge Schultz's in limine, May 30, 2017
ruling, and his June 21, 2017 sua sponte ruling relating to testimony elicited
from Alicea that also barred testimony from Zimmer about Zimmer's
involvement in unrelated acts of discrimination as addressed in Alicea's earlier
A-5576-16T1 22 lawsuit against Hoboken. According to plaintiff, those rulings prevented him
from offering additional evidence of pretext.
In its in limine motion seeking to bar testimony about Alicea's prior action
against that was based upon Zimmer's actions, Hoboken explained the
circumstances surrounding Alicea's resignation as Public Safety Director and his
subsequent lawsuit that relied upon claims of discrimination and led to a verdict
against Hoboken in his favor. Hoboken contended that the verdict was not
probative of any discrimination in this case. Moreover, Hoboken contended that
Alicea was not in a comparable position to plaintiff, was not subject to the same
disciplinary process as plaintiff, nor were the circumstances of his adverse
employment action similar to plaintiffs. Also, according to Hoboken, the
testimony should be barred as unduly prejudicial under Rule 403. Plaintiff
disagreed and contended that because Alicea's case involved an adjudication of
discrimination against "the same decision makers," the testimony should be
admissible as evidence that discriminatory conduct permeated the police
department. The judge ruled that he would not grant the motion but rather would
consider any objections raised during Alicea's testimony.
Alicea testified at trial and referred to his successful litigation and the
verdict entered against Hoboken, without objection. He stated that his
A-5576-16T1 23 successful claim against Hoboken was based upon Zimmer's discriminatory
practices.
The next day, prior to Zimmer testifying, the judge stated that his in limine
decision did not allow the introduction of testimony about the verdict in Alicea's
case and that testimony "should never have come in." The judge also noted that
the "operative facts in [plaintiff's] matter pre-dated the verdict in" Alicea's case.
According to the judge, there was no objection to either reference to the verdict
in plaintiff's opening statement or during Alicea's testimony because both
counsel misunderstood his in limine ruling as allowing the testimony to be
admitted. The judge ruled that the jury must be instructed to disregard the
testimony about the verdict. He stated that based on Alicea's references to
Zimmer's conduct in his case and the summary judgment motion judge's order
granting Zimmer's motion in this case, he would instruct the jury that "its already
been determined by a Judge who heard evidence that [Zimmer] played no role
in the decision to terminate" plaintiff. According to the judge, Zimmer's lack of
responsibility in plaintiff's matter was "the law of the case."
In response to the judge's ruling, plaintiff's counsel conceded that the
testimony about the verdict was improperly admitted and that there was no
controlling law that would have supported its admission. Counsel contended,
A-5576-16T1 24 however, that because Zimmer signed the Settlement Agreement relating to
plaintiff's Civil Service appeal, there was evidence that she was directly
involved in plaintiff's termination, unrelated to plaintiff's aiding and abetting
claim that was dismissed on summary judgment. Further, counsel noted that
there was deposition testimony from Zimmer indicating she was "approached by
corporation counsel" about plaintiff. According to counsel, there was "direct
evidence" that Zimmer "was aware of the matter . . . and . . . she actually
participated in the decision to have [plaintiff] removed." Hoboken argued that
the summary judgment motion judge's ruling as to Zimmer was controlling to
the extent that plaintiff sought to demonstrate she was involved with the decision
to terminate plaintiff. Moreover, the Settlement Agreement was not relevant as
it was entered into eighteen months after plaintiff's termination and was clearly
no more than a ministerial act by Zimmer.
The judge concluded that because Zimmer had nothing to do with
plaintiff's termination, and Alicea was not a comparable victim of
discrimination, he would instruct the jury to disregard any testimony about the
verdict in Alicea's lawsuit and Zimmer's involvement. When the jury returned,
he instructed its members as follows:
In this case, another Judge after hearing evidence has already ruled that Mayor Dawn Zimmer of Hoboken
A-5576-16T1 25 had nothing to do with the decision to terminate the plaintiff. She had nothing to do with that. Another Judge has ruled that and that is something that you must accept in this case. I'm also instructing you that the testimony you heard from Mr. Alicea about his lawsuit against Mayor Zimmer or . . . the City of Hoboken, that that testimony about what happened with that lawsuit and the verdict is to be totally disregarded by you. It plays no role in this case. Every now and then you may be told to forget something that you heard and not consider it. So, I'm instructing you that the testimony you heard from him about his lawsuit and the result of that lawsuit you must disregard. It cannot enter into your consideration at all and as of now you must disregard it.
On appeal, plaintiff contends that Judge Schultz misapplied the law of the
case doctrine when he prevented plaintiff "from introducing relevant evidence
that . . . Zimmer was involved in both . . . Alicea's termination as well as that of
[plaintiff]." According to plaintiff, if plaintiff never brought the aiding and
abetting claim that was decided on summary judgment, Alicea's testimony
would have been admitted, and the fact that that claim was dismissed should not
have barred the testimony. As to Zimmer's testimony, plaintiff argues the judge
erroneously prevented the admission of evidence that Zimmer was involved in
plaintiff's termination because by administrative directive she was personally
involved in all employment decisions and Zimmer signed the settlement
agreement. We disagree. We conclude Judge Schultz properly barred evidence
A-5576-16T1 26 of Zimmer's involvement in Alicea's matter or plaintiff's termination as he
correctly concluded that such evidence was not relevant to plaintiff's claim and
was barred by the law of the case doctrine.
The law of the case doctrine states that "a legal decision made in a
particular matter 'should be respected by all other lower or equal courts during
the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (citing
Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). It is a "non-binding rule
intended to 'prevent re-litigation of a previously resolved issue.'" Ibid. (citing
In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). Although "an order
denying summary judgment is not subject to the law of the case doctrine,"
Gonzales v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div.
2004), here, the summary judgment motion judge granted the motion after he
determined on the merits that Zimmer was not involved with plaintiff's
termination.
We therefore conclude Judge Schultz did not err by sua sponte issuing a
curative instruction or barring plaintiff from eliciting testimony from Zimmer
about her role, if any, in the Alicea matter. Plaintiff presented no evidence that
Zimmer was involved in plaintiff's termination and allowing any testimony
about the Alicea lawsuit would have been not only contrary to the law of the
A-5576-16T1 27 case, but also unduly prejudicial under Rule 403 and in violation of Rule 404(b)
that addresses prior "bad acts," as there was no evidence that Zimmer was
engaged in any conduct, similar to that proven in Alicea's lawsuit or otherwise,
relating to plaintiff's termination.
VI.
Finally, to the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:3-11(e)(1)(E).
Affirmed.
A-5576-16T1 28