Superior Court of
Appellate Division
Bruno Bumbaca,
Plaintiff-Appellant,
v.
and Chief Robert Campbell,
Defendants-Respondents.
Docket No. A-6279-02T3
373 N.J. Super. 239
861 A.2d 156
2004 N.J. Super. Lexis 415
November 19, 2004, Decided
December 9, 2004, Revised
Judges A. A. Rodriguez,
Weissbard and Hoens. [*158] The opinion of the court was delivered by Weissbard, J.A.D.
Plaintiff, Bruno Bumbaca, appeals from an order of summary judgment
dismissing his complaint against defendants, Township of Edison, Township of
Edison Fire Department (EFD), and Fire Chief Robert Campbell, which had alleged
that defendants discriminated against plaintiff based upon familial status in
violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1
to - 49, by failing to hire plaintiff as a full-time paid firefighter (count
one), breached a contract by failing to hire him (count two], and discharged him
wrongfully in violation of public policy (count three). Plaintiff sought
specific performance appointing him as a full-time firefighter with pay
retroactive to the date of original hire, lost wages, benefits and monetary
loss, compensatory and punitive damages, and counsel fees and costs. n1 We affirm.
The EFD is made up of both volunteer and paid
firefighters. Plaintiff has served as a volunteer firefighter with the EFD
since 1995. To become a volunteer firefighter, an applicant must complete an
application, pass a medical examination, pass a background check, and complete
training. An individual will be precluded from becoming a volunteer firefighter
only if he or she has a medical problem that prevents him or her from
performing the required duties or if he or she has been convicted of arson.
Plaintiff was uncompensated financially for his work as a volunteer
firefighter. He did, however, receive benefits given to all volunteer
firefighters, including insurance coverage while responding to fire calls, training,
and a small stipend.
Pursuant to N.J.S.A. 40A:14-44, any
appointment to the paid fire department must be from members of the volunteer
company who have served as active firefighters for at least two years. To be
classified as “active,” volunteer firefighters must respond to twenty-five
percent of all fire calls annually. The EFD calculates the yearly percentage of
calls made by each firefighter every November.
Every two or three years, the EFD administers
a series of tests to all active volunteers interested in becoming paid
firefighters. These tests include a written test, a physical performance test,
an initial and final oral examination, and an essay test. The composite scores
are used to rank individuals to determine the order of appointment to paid
firefighter positions. The rankings are then recorded on a list. When a
position becomes available, the person ranked first becomes eligible for
appointment and proceeds through the application process, which includes a
medical examination, a psychological evaluation, and a criminal background
check. The Edison Municipal Code mandates that a candidate not be eligible for
hire if he or she fails any one of the required tests. However, an individual
who fails a medical or psychological examination may be placed on the next
list, when compiled, and be retested at that time. If the highest ranked
candidate on the list forfeits appointment by failing one of the tests, the EFD
proceeds to the next individual on the list, and so on.
On
In December 2000 or January 2001, the EFD
determined that it could hire an additional six paid firefighters. The next nine
candidates on the list were, in order: Paul Toth, Wayne Enoch, Michael Maurath,
Anthony Vicidomini, plaintiff, Raymond Ricci, William Pelligrino, Allan
Yourstone, Jr., and Herbert Eayres. Ricci chose not to apply.
Defendant was called into Chief Campbell’s
office with the other seven candidates, given a uniform, and was told he was “getting
hired,” not that he was hired. Plaintiff knew all eight candidates were not
going to receive jobs because the Township had only six openings. According to
plaintiff, EFD Training Officer Bert Sofield told him and the others not to
answer calls as volunteers “so as not to jeopardize (their) hires as full-time
firefighters by getting hurt.”
Plaintiff passed the required medical
examination on
Dr. Wolf concluded that plaintiff did not possess the psychological
characteristics required for the position sought. She summarized her findings
as follows:
Overall, the candidate exhibited
a number of areas of concern. One is the arrest for drugs and assault. When
this is combined with the fact that he continues to drink twice a week, it does
raise a question about his commitment to abstinence. His performance and
motivation in high school, as well as his lack of college education do not
demonstrate ongoing commitment to developing himself and developing his level
of serious-mindedness. He endorsed numerous critical items on the ‘COPS’ test
that suggest areas of difficulty. He also endorsed gender bias items which were
of concern. Overall, although the candidate has many positive qualities in some
areas, there are enough areas of concern that at present he cannot be
recommended for appointment.
The “COPS” (Candidate and Officers Personnel Survey] test is a research
based biographical data instrument. The COPS test predicted that plaintiff’s
probable success, as a public safety officer, is “very poor.”
Chief Campbell informed plaintiff “the day
before the hiring” that Dr. Wolf had not recommended him for a firefighter’s
position and, as a result, he could not be appointed.
The six individuals hired as paid firefighters
were: Paul Toth, Wayne Enoch, [*160] Michael Maurath, William Pellegrino, Allan
Yourston, and Herbert Eayres. Plaintiff claims that those appointed, with the
exception of Paul Toth, who allegedly sued the department, had far worse
psychological examinations for employment as a paid firefighter and more
extensive criminal histories than he, and the reason they were hired was that
they had a relative employed by Edison Township in the past or at present. Dr.
Wolf recommended all six of those hired.
Plaintiff hired an independent forensic
psychiatrist, N. Frank Riccioli, M.D., to determine his emotional fitness to be
a firefighter. Dr. Riccioli administered one psychological test and strongly
recommended plaintiff for a position as a firefighter “in view of a complete
absence of negative features . . . .”
On appeal, plaintiff advances three arguments
for reversal:
Point I
The trial court erred in granting summary judgment
dismissing the first count of plaintiff’s complaint alleging familial status
discrimination under
Point II
The trial court erred in granting summary judgment
dismissing the second count of the complaint alleging promissory estoppel and
breach of contract.
Point III
The trial court erred in granting summary judgment
dismissing the third count of the complaint alleging common law public policy
wrongful discharge.
I
The LAD claim
Plaintiff’s LAD claim is based upon the contention that references to “familial
status” in the statute serve to prohibit, as constituting an unlawful
employment practice, the practice of nepotism, which has been defined as “favoritism
shown by persons in office to relatives or close friends, especially in
granting jobs.” Webster’s II New College Dictionary 743 (1995). n2 In this case, the practice is alleged to be favoritism in
the hiring of paid firefighters shown to relatives or friends of
We fully agree with plaintiff that the LAD is
remedial legislation, which must be liberally construed. McDonnell
v. State of
N.J.S.A. 10:5-3 sets forth the purposes of the
LAD:
The Legislature
finds and declares that practices of discrimination against any of its
inhabitants, because of race, creed, color, national origin, ancestry, age,
sex, affectional or sexual orientation, marital status, familial status,
liability for service in the Armed Forces of the United States, disability or
nationality, are matters of concern to the government of the State, and that
such discrimination threatens not only the rights and proper privileges of the
inhabitants of the State but menaces the institutions and foundation of a free
democratic State; provided, however, that nothing in this expression of policy
prevents the making of legitimate distinctions between citizens and aliens when
required by federal law or otherwise necessary to promote the national
interest.
The
Legislature further declares its opposition to such practices of discrimination
when directed against any person by reason of the race, creed, color, national
origin, ancestry, age, sex, affectional or sexual orientation, marital status,
liability for service in the Armed Forces of the United States, disability or
nationality of that person or that person’s spouse, partners, members,
stockholders, directors, officers, managers, superintendents, agents,
employees, business associates, suppliers, or customers, in order that the
economic prosperity and general welfare of the inhabitants of the State may be
protected and ensured.
The
Legislature further finds that because of discrimination, people suffer
personal hardships, and the State suffers a grievous harm. The personal
hardships include: economic loss; time loss; physical and emotional stress; and
in some cases severe emotional trauma, illness, homelessness or other
irreparable harm resulting from the strain of employment controversies;
relocation, search and moving difficulties; anxiety caused by lack of
information, uncertainty, and resultant planning difficulty; career, education,
family and social disruption; and adjustment problems, which particularly
impact on those protected by this act. Such harms have, under the common law,
given rise to legal remedies, including compensatory and punitive damages. The
Legislature intends that such damages be available to all persons protected by
this act and that this act shall be liberally construed in combination with
other protections available under the laws of this State.
N.J.S.A.
10:5-4 sets out the general sweep of the entire statutory scheme:
All persons
shall have the opportunity to obtain employment, and to obtain all the
accommodations, advantages, facilities, and privileges of any place of public
accommodation, publicly assisted housing accommodation, and other real property
without discrimination because of race, creed, color, national origin,
ancestry, age, marital status, affectional or sexual orientation, familial
status, disability, nationality, sex or source of lawful income used for rental
or mortgage payments, subject only to conditions and limitations applicable
alike to all persons. This opportunity is recognized as and declared to be a
civil right.
On the other hand, N.J.S.A. 10:5-12 sets out
at length the specifics of those practices deemed to constitute “an unlawful
employment practice, or, as the case may [*162] be, an unlawful discrimination.”
N.J.S.A. 10:5-12(a) addresses unlawful employment practices. In operative part,
it constitutes an unlawful employment practice,
for an
employer, because of the race, creed, color, national origin, ancestry, age,
marital status, affectional or sexual orientation, genetic information, sex,
disability or atypical hereditary cellular or blood trait of any individual, or
because of the liability for service in the Armed Forces of the United States
or the nationality of any individual, or because of the refusal to submit to a
genetic test or make available the results of a genetic test to an employer, to
refuse to hire or employ or to bar or to discharge or require to retire, unless
justified by lawful considerations other than age, from employment such
individual or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment.
Notably, that subsection contains no reference to familial status, the
concept upon which plaintiff bases his argument. However, N.J.S.A.
10:5-12(g) does embrace familial status, n3 as follows, making it a
discriminatory practice, for the owner, lessee, sublessee, assignee or managing
agent of, or other person having the right of ownership or possession of or the
right to sell, rent, lease, assign, or sublease any real property or part or
portion thereof, or any agent or employee of any of these:
(1) To refuse
to sell, rent, lease, assign, or sublease or otherwise to deny to or withhold
from any person or group of persons any real property or part or portion thereof
because of race, creed, color, national origin, ancestry, marital status,
domestic partnership status, sex, affectional or sexual orientation, familial
status, disability, nationality, or source of lawful income used for rental or
mortgage payments;
(2) To
discriminate against any person or group of persons because of race, creed,
color, national origin, ancestry, marital status, domestic partnership status,
sex, affectional or sexual orientation, familial status, disability,
nationality or source of lawful income used for rental or mortgage payments in
the terms, conditions or privileges of the sale, rental or lease of any real
property or part or portion thereof or in the furnishing of facilities or
services in connection therewith. . . .
Familial
status is defined as:
being the
natural parent of a child, the adoptive parent of a child, the foster parent of
a child, having a “parent and child relationship” with a child as defined by
State law, or having sole or joint legal or physical custody, care,
guardianship, or visitation with a child, or any person who is pregnant or is
in the process of securing legal custody of any individual who has not attained
the age of 18 years. [N.J.S.A. 10:5-5(ll).]
Thus, it is clear that the term familial status, as defined, does not
include the concept of nepotism and further, plays no role in the statutory
definition of an unlawful employment practice. The term was, [*163] in
fact, not a part of the LAD as originally drafted in 1945, nor was it the
subject of amendments in 1951, 1962, 1970 and 1991. It was only added in 1992,
for the stated purpose of prohibiting “discrimination in housing on the basis
of familial status.” As further explained in a section that became N.J.S.A.
10:5-9.2:
The provisions of this amendatory and
supplementary act, P.L.1992, c. 146 (C.10:5-12.4 et al.), are intended to
permit the Division on Civil Rights in the Department of Law and Public Safety
to qualify as a “certified agency” within the meaning of the Federal Fair
Housing Amendments Act, Pub.L. 100-430 (42 U.S.C. § 3610 (f)), and shall be
construed as consistent with that purpose. Nothing in this amendatory and
supplementary act, P.L.1992, c. 146 (C.10:5-12.4 et al.) shall be construed to
permit conduct prohibited by the “Law Against
Discrimination,” P.L.1945, c. 169 (C.10:5-1 et seq.), prior to the effective
date of this act, nor is it intended to be construed to prohibit conduct now
permitted. n4
As a result, while we do not endorse nepotism to the extent that it
promotes hiring on a basis other than merit, the practice is clearly not
prohibited by the LAD, even if plaintiff fell within the statutory definition,
which he does not. Accord Hayman v. Funk, 8 N.J.A.R.
27, 39-40 (Div. on Civil Rights 1984). Finally, having been directed to
look “to federal law as a key source of interpretive authority” for substantive
standards under the LAD, Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89,
97, 570 A.2d 903 (1990), we note that federal decisions have likewise held that
nepotism does not fall within the practices prohibited by the LAD’s
counterpart, Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2. Betkerur v. Aultman Hosp. Assn., 78 F.3d 1079, 1096 (6th Cir.
1996); Holder v. City of
Plaintiff claims that there are “many
unreported employment cases which cite to familial status discrimination in the
context of workplace discrimination.” However, a review of those cases reveal
that each involved a claim of employment discrimination based on a prohibited
category, such as race, age or gender, specifically listed in the LAD sections
that address employment discrimination. The references to familial status in
those cases was simply part of a description of the general purposes of the LAD
as set out in N.J.S.A. 10:5-3 . See, e.g., Taylor v.
Metzger, 152 N.J. 490, 498, 706 A.2d 685 (1998); Hernandez v. Region Nine
Housing Corp., 146 N.J. 645, 651, 684 A.2d 1385 (1996); Jones v. Aluminum
Shapes, Inc., 339 N.J. Super. 412, 420, 772 A.2d 34 (App.
Div. 2001). Not a single case cited by plaintiff supports his
proposition that the LAD prohibits nepotism through its use of the term
familial status. n5 The argument has no merit.
Even if plaintiff were correct that nepotism fell within the LAD and
that he fell within its scope, his claim would still fail. Assuming that
plaintiff’s proofs established a prima facie case of discrimination, that proof
would give rise to a presumption that the employer unlawfully [*164]
discriminated against plaintiff. Bergen Commercial Bank v.
Sisler, 157 N.J. 188, 210, 723 A.2d 944 (1999). To rebut the
presumption, defendants must then come forward with evidence of a legitimate,
non-discriminatory, reason for its rejection of plaintiff. Ibid.
If defendants produce such evidence, the burden shifts back to plaintiff, who
must prove that the reason proffered by defendants was a pretext for
discrimination by showing that a discriminatory reason motivated defendants or
that defendants’ explanation is “unworthy of credence.”
In this case, plaintiff must raise a genuine factual dispute as to
whether his failure of the psychological examination was the true reason for
the employment decision or merely a pretext for discrimination. See Beatty
v. Farmer, 366 N.J. Super. 69, 76, 840 A.2d 856 (App. Div. 2004) (holding that
the trial court properly granted defendant’s motion for summary judgment,
dismissing plaintiff’s claim for age discrimination when plaintiff, an
applicant for a position as a Deputy Attorney General, did not raise a factual
dispute as to whether the quality of his writing sample was the true reason for
the employment decision). In response to a motion for summary judgment,
plaintiff “need not meet the ultimate burden of persuasion, but he must cast
such serious doubt on the veracity of the employer’s articulated legitimate
reason as to allow a jury to reasonably conclude that the employer was
motivated to act for the discriminatory reason alleged by plaintiff.”
We conclude that plaintiff failed to rebut defendants’ proffered
legitimate and non-discriminatory reason for not hiring him: his failure of the
psychological examination. Chief Campbell testified that had plaintiff passed
the psychological examination, plaintiff would have been hired.
Plaintiff testified that he believed he would have been hired had he passed the
exam. Failing a pre-employment examination has been held to be a legitimate,
non-discriminatory reason for denying an applicant’s employment. Patrolmen’s
Benevolent Ass’n v.
To overcome this insurmountable hurdle,
plaintiff would have us infer that Campbell, or other high-level municipal
officials, conspired with Dr. Wolf to “rig” the outcome of the psychological
examinations. No evidence supported this suggestion, which was flatly denied by
Campbell and Wolf, both of whom were deposed. We [*165] reject plaintiff’s
attempt to create a positive (the inference of collusion) out of a negative
(the denial of collusion). See Zarrillo v. Stone, 317 Mass. 510, 58 N.E.2d 848,
849 (Mass. 1945); Eckenrode v. Pennsylvania R. Co., 164 F.2d 996, 999 n.8 (3rd
Cir. 1947), aff’d, 335 U.S. 329, 69 S. Ct. 91, 93 L. Ed. 41 (1948). Thus,
plaintiff has failed to cast doubt upon the veracity of defendants’ stated
non-discriminatory reason for not hiring him and the trial court’s grant of
summary judgment was proper.
II
Concerning plaintiff’s claim that defendants
breached an oral contract to appoint him as a full-time firefighter, we agree
with Judge Ryan that plaintiff failed to establish the existence of such a
contract, or detrimental reliance sufficient to support a claim of promissory
estoppel. We find plaintiff’s arguments to be without sufficient merit to
warrant extended discussion in this opinion. R. 2:11-3(e)(1)(E).
III
Finally, for the reasons discussed at length
above,
Affirmed.
Notes:
1
The first count was dismissed on defendants’ motion on
2
The word “nepotism” comes from the Latin word for nephew, a historical
reference to the practice of popes and other ecclesiastics to show special
favor to nephews or other relatives in conferring offices; the unfair
preferment of nephews or relatives to other qualified persons. A New English
Dictionary on Historical Principles, Vol. VI, Part II, Preface to letter N, p.
93 [Oxford 1908].
3
Subsections (3) and (4) prohibit other actions by those designated in N.J.S.A.
10:5-12(a) and also refer to familial status. In addition, the balance of the
section contains other prohibitions against other persons or institutions, some
of which refer to familial status, e.g., N.J.S.A. 10:5- 12h(1)-(3),
-12i(3),-12k, and some of which do not, e.g., N.J.S.A. 10:5-12l, m.
4
The sponsor’s statement to the Senate Bill also makes this purpose explicit. Statement to Senate Bill No. 340 (March 30, 1992). Indeed,
as defendants point out, the federal law, to which the LAD was intended to
conform, was amended in a similar manner in 1988. See 42 U.S.C.A. § 3602(k)
3604; Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 832 (9th Cir.),
opinion amended on denial of rehearing, 125 F.3d 1281 (9th Cir. 1997).
5
For an example of a law prohibiting nepotism, see N.J.S.A. 52:11-5.1 which
prohibits members of the Legislature from employing relatives in their district
legislative office.