Opinion
Civ. Action No. 00-00047(JBS).
February 6, 2001
Theresa D. Brown, Esquire, Willingboro, New Jersey, Willan Franklyn Joseph, Esquire, Philadelphia, Pennsylvania, Attorneys for Plaintiff
John J. Farmer, Jr. Attorney General of New Jersey, By: Meryl G. Nadler, Deputy Attorney General, Trenton, New Jersey, Attorney for Defendant
OPINION
In this employment discrimination case, plaintiff Doreen Boyd brings suit against defendants the State of New Jersey, Janice Mintz and Louise Coon (individually and in their official capacities), alleging that, under color of law, defendants intentionally deprived plaintiff of property, equal protection, and due process pursuant to 42 U.S.C. § 1981 and 1983, and violated her civil rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD"). Plaintiff, an African American female, claims that she was deprived of her property rights and discriminated against when her name was removed from the eligible list for employment as an Investigator with the Camden County Medical Examiner's Office after the County discovered that plaintiff did not actually have the requisite three years experience in investigating the medical cause of human death. Presently before this Court is defendants' motion to dismiss and/or motion for summary judgment on all claims pursuant to Rules 12(b)(6) and/or 56, Fed.R.Civ.P., respectively. For the reasons discussed herein, defendants' motion for summary judgment will be granted. Plaintiff's Amended Complaint will be dismissed with prejudice.
The evidence discussed for the purposes of this motion is drawn from the briefs and exhibits of the parties. In deciding a motion for summary judgment the Court will
(i) resolve conflicting evidence in favor of the nonmovant, (ii) not engage in credibility determinations, and (iii) draw all reasonable inferences in favor of the nonmovant. The movant has the burden of pointing out that evidence cognizable in a motion for summary judgment which the movant believes entitles it to summary judgment; the nonmovant must then respond by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the nonmoving party will bear the burden of proof at trial. Fuentes v. Perskie , 32 F.3d 759, 762 n. 1 (3d Cir. 1994).
On March 26, 1997, the Department of Personnel ("DOP") promulgated new employment requirements for the position of County Medical Examiner's Office Investigator. (Nadler Certification, ¶ 6 and Ex. E at 3.) On October 14, 1997, the DOP application filing period closed for the position of "Investigator, County Medical Examiner's Office." (Defs.' Mot. for Summ. J. Br. at 6; Nadler Certification, Ex. E at 1.) Candidates wishing to compete for the Investigator position were required to have the experience detailed in the job specification by the date the application period closed. (Defs.' Br. at 6); see also, N.J.S.A. 4A:4-2.3(b).
The DOP job specification (# 02183) for the investigator position sought by plaintiff, which was enacted on March 26, 1997, lists the requirements for the position:
EXPERIENCE
Three (3) years of experience in investigating the medical cause of death in humans.
NOTE: Successful completion of thirty (30) hours of instruction in death investigation conducted by . . . an institution of higher education or other agency approved by the State Medical Examiner may be substituted for one (1) year of the required experience.
NOTE: Where the duties of a particular position involve making a determination of and the pronouncement of death, appointees will be required to possess either:
A current and valid registration as a professional nurse in the State of New Jersey
OR
A current and valid license to practice medicine in the State of New Jersey.
(Nadler Certification, Ex. C at 2.) Plaintiff does not challenge that this set of requirements became effective on March 26, 1997 or that the application closing date for the October, 1997 examination she took was October 14, 1997. (Pl.'s Br. at 3.) Plaintiff, however, repeatedly asserts that she met the job requirements for the investigator position at the time she applied for the job (Am. Compl., ¶ 13; Pls.' Br. at 3.), although she does not dispute the fact that she lacks three years experience in investigating the cause of human death. (See Pl.'s Br., Ex. D, Letter from Boyd to Coon of 04/07/98.) Plaintiff speculates that it is "quite possibl[e] [that] Plaintiff was qualified under the Division's rules when she applied for the test" and states that she was not advised that the eligibility criteria for the job had changed. (Id.) (emphasis in original). Plaintiff has submitted no facts that would be admissible in evidence which support her theory that she met the eligibility qualifications required for the Investigator position in October, 1997.
Plaintiff relies on a Job Vacancy Description dated November 16, 1984 (Pl.'s Ex. E at 2), which lists the job requirements for County Medical Examiner's Office Investigator as:
In October, 1997, plaintiff took the civil service examination for the position of Camden County Medical Examiner's Office Investigator. (Defs.' Br. at 5; Pl.'s Opp. Br. at 2.) On January 1, 1998, plaintiff was notified that she had passed the examination and that she was ranked second on the list for the position of County Medical Examiner's Office Investigator. (Defs.' Br. at 5; Pls. Br. at 2; Pl.'s Br., Ex. A.) Plaintiff interviewed for, and was initially offered, an investigator position until the County determined that plaintiff lacked the requisite three years experience in investigating the medical cause of death of humans. (Defs.' Br., at 5-6; Pl.'s Br. at 2-3.) On March 12, 1998, Richard J. Dodson, Director of the Camden County Division of Human Resources ("Dodson") wrote to Louise Coon at the DOP and requested that plaintiff's name be removed from the eligibility list because she did not possess the requisite employment or educational experience. (Pl.'s Opp. Br., Ex. G.)
Dodson noted that plaintiff did have one training course from St. Louis University which might qualify toward the 30 hour training requirement, which could be substituted for one year of work experience, but advised that "it is not clear how many hours [of training] she had and [she has] no experience that we can see in the investigation of causes of death." (Pl.'s Br., Ex. G.) Dodson further noted that "her experience as a licensed mortician does not count towards the investigation of causes of death." ( Id . )
On March 30, 1998, plaintiff was notified that her name had been removed from the eligibility list for employment as a Camden County Medical Examiner's Office Investigator because she "lack[ed] the minimum requirements for the position as listed in the job specification." (Pl.'s Br., Ex. B.) This notice clearly advised plaintiff that she could, within twenty days of the notice, appeal to the DOP by supplying proofs, arguments, and issues that show that the Department's determination is not valid. (Id.) On April 7, 1998, plaintiff wrote to Louise Coon and claimed that her removal from the eligibility list must have been a mistake because she had completed all the requirements for eligibility. (Id., Ex. D.) Plaintiff wrote that "[e]xperience is taught on the job. Experience as far as the handling of human remains is my expertise, pronouncing death is not one of my responsibilities." (Id.) Plaintiff also wrote, "[i]f I am removed from the list because of a technicality, then others ahead of me with less credentials should be removed [from the eligibility list] also." Absent any other appeal, plaintiff's letter was treated as an administrative appeal, the results of which are discussed at length below. (See Nadler Certification, Ex. E.) Plaintiff reapplied for the position of investigator in June, 1998. (Pl.'s Br. at 17, n. 3; Nadler Certification, Ex. B.) On August 26, 1998, the New Jersey DOP again advised plaintiff that she was ineligible for employment as a Medical Examiner's Office Investigator because she lacked sufficient experience for the position. (Id., Ex. C.)
It appears that the "others" to whom plaintiff refers is Eugene Kain, the first-ranked eligible who was ultimately given the position of Medical Examiner's Office Investigator in March, 1998. Although plaintiff indicates that the "others" also lacked the requisite experience for the position, she offers no proof of that fact. In her amended complaint, plaintiff makes other vague allegations that "at least one white male . . . was allowed to take the test and . . . hired for a job within Camden County, despite failing the civil service test." (Compl., ¶ 13.) Plaintiff submitted no facts in the form of affidavits or testimony that would be admissible as evidence to support her claim that "others" were treated more favorably than she.
On September 2, 1998, plaintiff filed a complaint with the EEOC, alleging that she had been discriminated against because of her sex. (Nadler Certification, Ex. B.) Plaintiff noted that all investigators at the Medical Examiner's Office were male and that male investigators were hired in March, 1998 and August, 1998. (Id.) No mention of plaintiff's race was made in the EEOC complaint. On October 1, 1999, the EEOC sent plaintiff a notice of dismissal and right to sue letter. (Nadler Certification, Ex. D.)
On December 9, 1999, the New Jersey DOP Merit System Board ("Merit Board") denied plaintiff's administrative appeal related to her removal from the employment eligibility list for the Camden County Medical Examiner's Office. In its decision, the Merit Board reviewed the applicable requirements for the investigator position, and noted that "[i]n order for experience to be considered applicable, the primary focus of the experience had to be investigating the medical cause of death of humans." (Nadler Certification, Ex. E, Final Admin. Action of the Merit System Board at 1) (hereinafter the "Merit Board Decision") (emphasis added). The Merit Board Decision further noted that the experience requirement had to be satisfied by the October 14, 1997 closing date for the filing of applications. (Nadler Certification, Ex. E at 1.)
N.J.A.C. 4A:4-2.2(b) provides, in part, that
"[u]nless otherwise specified, an applicant shall meet the following criteria by the announced closing date. . . .
2. Meet all requirements specified in the examination announcement."
According to the Merit Board Decision, only four applications were received for the investigator position and only two applicants, Eugene Kain and plaintiff, were ranked based on their test scores and test questionnaire responses concerning education and experience. (Nadler Certification, Ex. E at 2.) The first ranked candidate, Eugene Kain, was appointed to the position of investigator on March 23, 1998. (Id.) During their review of plaintiff's appeal, the Merit Board discovered a discrepancy between the experience information listed by plaintiff upon the questionnaire portion of the civil service examination and the information contained on her resume and in the DOP record. (Id.) Plaintiff's DOP record and resume revealed that she possessed a Bachelor's degree, was a licensed funeral director, had completed 30 hours of death investigation and possessed a certificate from the Saint Louis School of Medical Examiners. (Id.) Plaintiff's other work experience included special education teacher, Funeral Director, Mortician, adjunct professor, and cocktail waitress. (Id.)
The Merit Board Decision compared plaintiff's experience as listed on her resume (discussed above) with the experience she reported on the civil service test questionnaire:
She stated that she possessed three years of experience in visiting death scenes and gathering essential facts including interviewing witnesses, medical professionals and bereaved families of the deceased. On one of her responses to the questionnaire, she selected a response which indicated that she possessed a current and valid registration as a professional nurse or was licensed to practice medicine in the State of New Jersey, and had three years of investigation experience dealing with preparing full descriptions of death scenes and statements of witnesses.
(Nadler Certification, Ex. E at 2.) The Merit Board Decision further noted that the test instructions advised candidates that falsification of any information on the questionnaire would be grounds for disqualification and that the responses would be verified. (Id.) Upon review of all relevant information, the Merit Board concluded that because plaintiff lacked the requisite experience qualifications for a Medical Examiner's Office Investigator position as of October 14, 1997, she was properly removed from the eligible list pursuant to N.J.A.C. 4A:4-4.7(a)1 and N.J.A.C. 4A:4-6.1(a)1.
N.J.A.C . 4A:4-4.7(a)1 reads: "The name of an eligible may be removed from an eligible list for . . . [t]he causes for disqualification listed in N.J.A.C. 4A:4-6.1."
N.J.A.C . 4A:4-6.1(a)1 reads: "A person may be denied examination eligibility or appointment when he or she . . . [l]acks the job requirements."
On January 3, 2000, plaintiff filed her initial complaint in this Court. On February 3, 2000, this Court struck and dismissed plaintiff's complaint because it lacked an original attorney signature as required by the Rules. On February 22, 2000, after receiving a motion for reconsideration, this Court set aside the dismissal and reopened plaintiff's case. On April 28, 2000, plaintiff filed an amended complaint against the New Jersey DOP, DOP Commissioner Janice Mitchell Mintz and DOP employee, Louise Coon. The amended complaint asserted the following claims of discrimination based on race and gender: (1) defendants acted under color of law to deprive plaintiff or privileges, liberty and property, her equal protection, due process and other civil rights in violation fo the Fifth and Fourteenth Amendments and 42 U.S.C. § 1981 and 1983; (2) defendants violated Title VII; and (3) defendants violated New Jersey's LAD.
Defendants now move to dismiss or, alternatively, for summary judgment on all of plaintiff's claims. For the reasons stated herein, defendants' motion for summary judgment will be granted, and plaintiff's complaint will be dismissed with prejudice.
Both parties have submitted factual information beyond the pleadings, and each has briefed the summary judgment standard. Therefore, no further notice from this Court is necessary before converting the Rule 12(b)(6) dismissal motion to a Rule 56(c) summary judgment motion.
II. DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996);Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert.denied, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Plaintiff's Section 1981 Claims
Section 1981 reads:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make an enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981. To sustain a claim under Section 1981, plaintiff bears the initial burden of demonstrating: (1) that she is a member of a racially cognizable group; (2) that defendants intentionally discriminated against her on the basis of her race; and (3) that such discrimination was directed at one or more of the activities covered by the scope of the statute (i.e., "mak[ing] and enforc[ing] contracts).See Mian v. Donaldson, Lufkin Jenrette Sec., 7 F.3d 1085, 1087 (2d Cir. 1993); see also Ackaa v. Tommy Hilfiger Co., No. Civ. A. 96-8262, 1998 WL 136522, at *3 (E.D.Pa. Mar. 24, 1998). The Third Circuit requires that plaintiff prove intentional discrimination. Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 126 (3d Cir. 1990). In light of the inherent evidentiary issues involved in proving discriminatory intent, the Third Circuit in Chauhan reaffirmed its position that summary judgment cases in Section 1981 cases are governed by the well known burden shifting provisions in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the discharge. McDonnell-Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 506-07. An employer satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge. Burdine, 450 U.S. at 254-56 and n. 8. Once an employer meets its burden of producing a legitimate, nondiscriminatory reason for plaintiff's dismissal, the burden of production shifts back to the plaintiff, who must show by a preponderance of the evidence that the employer's proffered explanation for the discharge is pretextual and that the employer's true motivation was discriminatory. McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S. at 253, 256; Hicks, 509 U.S. at 507-08. "It is not enough . . . todisbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 509 U.S. at 519 (emphasis in original). However,
[B]ecause the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered nondiscriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Thus, if the plaintiff has pointed to evidence sufficiently to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case.Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis in original); see also Sheridan, 100 F.3d 1065-72 (reaffirming pretext standard set forth in Fuentes). A defendant is entitled to summary judgment at this stage if the plaintiff has not produced sufficient evidence to rebut the defendant's proffered nondiscriminatory explanation for the discharge. Sheridan, 100 F.3d at 1072.
In this case plaintiff fails to meet her burden of showing a prima facie case of intentional discrimination under Section 1981 based on race by defendants. Clearly plaintiff, an African American female, is a member of a racially cognizable group and satisfies the first prong of the test.
Plaintiff's offered proofs fail on the second prong, because there is not even circumstantial evidence from which an inference of racial discrimination could be found by a reasonable factfinder. Plaintiff argues only that "in the absence of good cause, the Defendants were bound to keep her on the civil service list" and that defendants violated this alleged obligation "based on impermissibly motivated conduct which violated Plaintiff's rights to make and enforce a contract to remain on the list like similarly situated white people." (Pls. Br. at 7.) This argument improperly attempts to shift plaintiff's burden of showing racial discrimination to defendant. It is quite apparent that Doreen Boyd lacked the required minimum qualifications for the Investigator position as of the closing date of October 14, 1997, under the applicable position description of March 26, 1997. There is no dispute plaintiff lacked three years experience in investigating the cause of human death. Plaintiff has speculated that her application may have pre-dated the new position description, but there is no evidence that this is so. Moreover, it is uncontested that Doreen Boyd misrepresented her qualifications upon her civil service test questionnaire, as found by the appointing authority and by the Merit Board decision. Because Doreen Boyd was not qualified for appointment to the Investigator position, she cannot satisfy the prima facie test.
Additionally, plaintiff claims that a non-member of her protected class was treated more favorably, but offers few specifics and no facts that would be admissible in evidence to support such a statement. Moreover, there is no evidence that a similarly unqualified Caucasian was selected for the Investigator position. Defendant's denial of plaintiff's allegation puts the plaintiff to her proofs, as she cannot rest on the mere allegations of her amended complaint. Despite leveling charges of racism and selection of a less qualified individual, plaintiff has offered not one scintilla of evidence. Again, this absence of proof is fatal to her claim of discrimination.
Instead of submitting affidavits and testimony to support her allegations, as directed by Rule 56(e), Fed.R.Civ.P., plaintiff merely argues in her opposition brief that "she was subsequently removed [from the list] and denied a job in favor of others, including a white male although he failed the civil service test that he and the plaintiff both took." (Pl.'s Opp. at 3; Compl., ¶ 13-14.) Plaintiff never names this white male who allegedly received more favorable treatment. There is no evidence to suggest that the unqualified "white male" was the candidate ranked first on the eligible list that plaintiff was removed from, Eugene Kain, who was appointed to the Investigator's position on March 23, 1998. In fact, the Merit Board Decision reveals that Mr. Kain's rank was at all times higher that plaintiff's, based on his test score and experience. Plaintiff's vague claims that other candidates were treated more favorably do not, without more, establish that it is so.
Plaintiff's speculative claims that her removal from the list was racially motivated would fail even if this Court found that she had met her initial prima facie burden because the DOP has offered legitimate, non-discriminatory reasons for plaintiff's removal from the eligible list, namely, plaintiff's lack of the required experience, pursuant toN.J.S.A. 4A:4-4.7(a)1, read in conjunction with N.J.S.A. 4A:4-6.1(a)(1), her misrepresentations about her experience on the civil service questionnaire, pursuant to N.J.S.A. 4A:4-6.1(a)(6), and the fact that the candidate hired for the position was ranked first (to plaintiff's second) on the eligibility list based on his experience and testing, pursuant to N.J.S.A. 4A:4-4.8(a)(3). Plaintiff's appeal letter concedes that "pronouncing death is not one of [my] responsibilities" and claims that "[e]xperience is taught on the job." (Id.) Plaintiff offered no support for the assertion that the requisite experience in determining the cause of death is taught on the job for investigators and that assertion is directly defeated by N.J.S.A. 4A:4-2.3(b). Plaintiff also presented no evidence that any of the DOP's legitimate reasons for not hiring plaintiff were pretextual.
That section reads, "A person may be denied examination eligibility or appointment when he or she . . . [h]as made a false statement of any material fact or attempted any deception or fraud in any part of the selection or appointment process."
C. Plaintiff's Section 1983 Claims
In order to establish a claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant(s) acted under color of state law to deprive the plaintiff of a federal statutory or constitutional right. Plaintiff in this case alleges that defendants acted under color of state law to deprive her of her property and due process rights by removing her from the eligible list for the position of Camden County Medical Examiner's Office Investigator, allegedly based on her sex and race. Plaintiff also makes a failure to train claim, alleging that the County supported the alleged violations of her rights by following an official policy that caused plaintiff's harm. (Am. Compl., ¶ 3.)
The Statute provides, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . ..
1. Failure to Train
The Court will first address plaintiff's failure to train claim. Plaintiff asserts that, based on her allegations, "she could prove that her rights were violated because the Division fails to properly train its employees, including the named officials to properly investigate situations" similar to her situation. (Pl.'s Br. at 16.) Although it is true that municipal liability can attach under Section 1983 where the execution of a government's policy or custom causes the injury complained of by a plaintiff, plaintiff in this case has offered no proof that Defendants had an official policy to discriminate against African American women in the hiring process or that there was a policy not to investigate racial or sex discrimination claims.
The facts of this case are similar to those addressed by this Court inWatson v. City of Salem, 934 F. Supp. 643 (D.N.J. 1995). In Watson, the plaintiff placed third on a list of eligibles for the police department and received an initial offer for employment. Watson, 934 F. Supp. at 656-57. Plaintiff's offer for employment was withdrawn after it was revealed that plaintiff had misrepresented the scope of his prior criminal record. Id. at 657. Although he did not deny that he had misrepresented his criminal history, Watson alleged, among other things, that the defendants in his case "had a policy to discriminate against blacks by not offering them employment and by termination of blacks without cause." Id. Plaintiff did not cite or produce any other incidents of discriminatory hiring or firing and this Court granted defendants' motion to dismiss that claim in his complaint.
In this case, plaintiff similarly offers no evidence of a discriminatory policy or custom, and no evidence of other candidates of a different race who also lacked the necessary qualifications and who were treated more favorably. Plaintiff's brief makes sweeping allegations that white males who lacked proper qualifications were treated more favorably than she (Pl.'s Br. at 2-3), but plaintiff provides no affidavits or testimony in support of those allegations. Also, plaintiff ignores the fact that the candidate ultimately appointed to the investigator position was ahead of her on the eligible list, even before her lack of experience was considered by the DOP Merit Board. Additionally, plaintiff misrepresented her experience on the civil service questionnaire in order to obtain the number two position on the eligible list. Plainly, plaintiff was not the most qualified person for the investigator's position. Because plaintiff lacked the requisite experience to be a Camden County Medical Examiner's Office Investigator, and because she has adduced no evidence to raise a material issue of fact that defendants had a discriminatory policy or failed to train their employees, plaintiff's failure to train claim will be dismissed.
2. Property Interest Claim
The Court will now address plaintiff's claim that her property (i.e., her place on the Investigator eligible list) was taken by defendants, acting under color of law, in violation of her Due Process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff claims that she had a property right in "eligibility for consideration for the job under the open and competitive civil service procedure" (Pl.'s Opp. at 10) and that defendants' alleged taking of that property amounted to a constitutional violation that required a pre-deprivation hearing. Defendants argue that plaintiff has no protectable interest in her rank on the eligibility list, and no due process violation occurred when her name was removed from the list. (Defs.' Reply Br. at 4.)
In order to succeed on her Due Process claim, plaintiff must first show that she had a protected property interest in her number two rank on the eligibility list. If that is shown, plaintiff must then prove that defendants' actions resulted in the constitutional taking of such property and that due process required that plaintiff be given notice or a hearing prior to removing her name from the eligibility list. Because she herself admitted that her work experience did not include pronouncing death, this Court finds that plaintiff had no protectable property interest in her place on the list and, even if she had such an interest, defendants' actions did not violate her constitutional right to due process or require any process beyond the appeal that was offered.
"To have a property interest in a benefit, a person must have more than an abstract need or desire for it. . . . He must, instead, have a legitimate claim for entitlement to it." Newark Branch, Nat'l Ass'n for the Advancement of Colored People v. Harrison, 940 F.2d 792, 809 (3d Cir. 1991) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). Legitimate claims of entitlement may expressly be created by statute or regulation or may arise from government policies or a "mutually explicit understanding" between a government employer and employee. Newark Branch, NAACP, 940 F.2d at 809 (quoting Perry v. Sinderman, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-700, 33 L.Ed.2d 570 (1972)).
Under New Jersey's rule of three, "an appointing authority is given broad discretion to choose among the top three individuals on an eligibility list when making a promotion." Fioriglio v. City of Atlantic City, 963 F. Supp. 415 (D.N.J. 1997); N.J.A.C. 4A:4-4.8(a)3 (Upon receipt of a candidate certification, appointing authority may appoint one of the top three interested eligibles from an open competitive list). The rule of three essentially states that the appointing authority must fill the vacancy from the top three certified candidates, and New Jersey case law has held that "a person who successfully passes an examination and is placed on an eligible list does not thereby gain a vested right to employment." Nunan v. Department of Personnel, 244 N.J. Super. 494, 497 (App.Div. 1990) (quoting In re Crowley, 193 N.J. Super. 197, 210, 473 A.2d 90 (App.Div. 1984). The Court further notes that New Jersey case law establishes only a limited interest arising from placement on an eligibility list, such that once a list is generated appointments may only be made from that list. Newark Branch, NAACP, 940 F.2d at 810 n. 9;see In re Crowley, 193 N.J. Super. at 210. Thus, plaintiff was never entitled to appointment as a Camden County Medical Examiner's Office investigator.
Plaintiff concedes that she has no property interest in employment as an investigator for the Medical Examiner's Office. She does claim, however, that she has "a property right to eligibility for consideration for the job under the open and competitive civil service procedure that is established in the [New Jersey Administrative Code]." (Pl.'s Opp. Br. at 10.) Plaintiff cites to the Third Circuit's decision in Stana v. School District of Pittsburgh, 775 F.2d 122 (3d Cir. 1985), and argues that she, like plaintiff Stana, had a protected property interest in her place on the DOP eligibility list for the position of Medical Examiner's Office Investigator.
The Third Circuit in Stana v. School District of Pittsburgh, held that a woman certified to teach in Pennsylvania and listed in the top three of eligible candidates had a constitutionally protected property interest in her placement on that eligible list which could not be "arbitrarily undermined." 775 F.2d 122, 126 (3d Cir. 1985). The Third Circuit identified the relevant inquiry as "whether the claimant has a `legitimate claim of entitlement'" to the position on the eligible list.Stana, 775 F.2d at 126. The court reasoned that the school district's promulgation of a policy regarding the length of time a name would remain on an eligibility list (i.e., four years) represented "both an existing policy or rule and an explicit understanding sufficient to constitute a property interest . . ., which triggered the requirement for an inquiry that comported with procedural due process." Id. at 126-27 (internal citation omitted).
The Third Circuit noted that Stana was different from other "eligibility list" cases because the candidate's place on the eligibility list was a central factor in the school district's communicated policy on the award of teaching positions. See Stana , 775 F.2d at 127 n. 3. One distinguished case is applicable here in Griffin v. Carey , 547 F. Supp. 449, 453-54 (S.D.N.Y. 1982), the court found that a candidate removed from a statutorily required eligibility list for firefighters had no property interest in the list because the statute authorized removal for his misrepresentations on an employment application.
Unlike the plaintiff in Stana, plaintiff here makes no argument that the DOP had a policy for placement and maintenance of the names on the list for a specific length of time. Additionally, a more recent Third Circuit decision in Newark Branch, NAACP v. Harrison, distinguishedStana and found that a district court's invalidation of an eligibility list "did not impinge upon the recognized property interests of innocent parties and thus does not implicate due process concerns." 940 F.2d 792, 811 (3d Cir. 1991). The Third Circuit also noted that "New Jersey law clearly vests responsibility for the establishment, cancellation, and duration of eligibility lists in the State Department of Personnel." Id. (citing N.J.S.A. 11A:4-4 and N.J.S.A. 11A:4-6.) Plaintiff did not have three years of experience as required by the DOP job description, plaintiff misrepresented her qualifications on the civil service examination questionnaire, and plaintiff offered no proof that the DOP had a policy for keeping unqualified applicants on the eligibility list while they obtained the requisite experience. Plaintiff, therefore, had no property interest in her place on the eligibility list.
Even if this Court found that plaintiff had some protectable property interest in her place on the eligible list, her removal from that list would not rise to the level of a constitutional violation warranting a pre-deprivation hearing. Plaintiff was given an opportunity to appeal the removal of her name from the eligibility list and to present evidence challenging the decision to remove her from the list based on her lack of experience. (Pl.'s Opp. Br., Ex. B.) Plaintiff responded to the notice with a letter to Louise Coon which attached her resume and claimed that she was improperly removed from the list. With respect to the experience requirements of the job, the express reason given by the DOP for her removal from the list, plaintiff wrote "I have completed all the requirements set forth in the application form. Experience is taught on the job. Experience as far as the handling of human remains is my expertise, pronouncing death is not one of my responsibilities." (Id., Ex. D, Letter from Boyd to Coon of 4/7/98.) Thus plaintiff herself confirmed on appeal that she lacked the experience as required by the applicable job description. The Merit Board further noted that plaintiff's resume listed work experience and a mortician's licence, but no experience whatsoever in the investigation of the medical cause of human death. (Nadler Certification, Ex. E at 2.) Therefore, even if this Court found that plaintiff had some constitutionally protected property interest in her place on the eligibility list, her claim would fail since she was given a timely opportunity to appeal and present evidence shortly after her name was removed from the list. No greater process was due, nor has plaintiff even at this late date presented evidence that could reasonably have led the Board to decide in her favor.
As discussed in the factual history of this case, the "Notification Disposition Notice" that was sent to plaintiff on March 30, 1998, advising her that her name had been removed from the list because she lacked the minimum qualifications, also advised plaintiff that, "[y]ou may, within 20 days from the date of this notice appeal this action by writing to the Department of Personnel indicating why this action is not warranted. Your appeal must include all proofs, arguments, and issues which you plan to use to substantiate the issue raised in your appeal." (Pl.'s Opp. Br., Ex. B.)
So, because plaintiff has not demonstrated that her place on the eligibility list was constitutionally protected property, because the Merit Board determined that plaintiff lacked the experience required for the position (a cause for disqualification listed in N.J.S.A. 4A:4-6.1(a)1) and because plaintiff was given the timely opportunity to appeal the decision to remove her name from the list, this Court finds that no procedural due process violation occurred. Defendants' motion to dismiss plaintiff's claims under Section 1983 will therefore be granted and plaintiff's claims will be dismissed.
D. Plaintiff's Title VII and NJLAD Claims
The Court next considers plaintiff's civil rights claims, alleging defendant DOP willfully, intentionally and unlawfully committed employment discrimination against plaintiff based on race and sex in violation of Title VII of the Civil Rights Act of 1964, codified as 42 U.S.C. § 2000(a)(1) ("Title VII") and the New Jersey Law Against Discrimination, codified as N.J.S.A. 10:5-1, et seq. ("NJLAD").
Plaintiff concedes that her Title VII claim is limited to defendant DOP, as named in the EEOC charge. (Pl.'s Br. at 17.)
Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000(a)(1), provides the substantive law. The core anti-discrimination section of Title VII provides that:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000E(a)(1). Thus, in order to successfully prosecute a claim under Title VII, plaintiff must show that the DOP's decision not to hire her was based on her sex and/or her race. Similarly, the NJLAD provides:
All persons shall have the opportunity to obtain employment, . . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation or sex, subject only to conditions and limitations applicable to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.N.J.S.A. 10:5-4. In applying the NJLAD, New Jersey courts commonly follow the standards of proof articulated in the federal discrimination statutes. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1212 (3d Cir. 1995) (citing McKenna v. Pacific Rail Serv., 32 F.3d 820, 827 (3d Cir. 1994)). Thus, the Court will apply the same analysis for both claims.
1. Plaintiff's Race Discrimination Claim
Prior to filing a claim under Title VII, a plaintiff must timely file a claim with the EEOC and obtain a right to sue letter from that agency.Santiago v. City of Vineland, 107 F. Supp.2d 512, 528 (D.N.J. 2000). The exhaustion requirement is a statutory, rather than a jurisdictional, prerequisite. Id. (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Anjelino v. The New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999)). Claims under Title VII can be dismissed for failure to exhaust such administrative remedies. Santiago, 107 F. Supp.2d at 528 (citing Anjelino, 200 F.3d at 87-88). A plaintiff is excused from exhausting his administrative remedies when "the acts alleged in the subsequent . . . suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom. Santiago, 107 F. Supp.2d at 528 (quoting Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (citations omitted)).
Although plaintiff timely filed an EEOC charge claiming "discriminat[ion] in hiring because of [her] sex (female)" (Pl.'s Br. at 17; Nadler Certification, Ex. B), no EEOC charge was ever filed claiming discrimination based on plaintiff's race. Plaintiff's race was not even identified in her EEOC complaint. Plaintiff first raised the issue of race discrimination in her complaint filed in this Court. It is unlikely that plaintiff's present claim of racial discrimination could be classified as "fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Santiago, 107 F. Supp.2d at 528;see Skeete v. IVF America, Inc., 972 F. Supp. 206 (S.D.N.Y. 1997) (holding that plaintiff's sex discrimination claim, which was not included in her EEOC complaint, was not reasonably related to her race discrimination claim because the EEOC complaint made no reference whatsoever to plaintiff's sex as a basis for discrimination). Although this Court could dismiss plaintiff's Title VII and NJLAD race discrimination claims based on failure to exhaust, this Court will deny plaintiff's claims on the merits, for the reasons discussed in Section II.B of this Opinion, supra.
In her April 7, 1998 letter to Ms. Coon, plaintiff wrote that "The STATE OF NEW JERSEY is considered to be fair in hiring people who are qualified regardless of race, creed, or color," but did not make any further charge of racial discrimination and did not identify herself as an African American female. (Pl.'s Ex. D.)
2. Plaintiff's Sex Discrimination Claim
It is undisputed that plaintiff timely submitted an EEOC complaint on September 2, 1998, charging defendant DOP with employment discrimination based on her sex. (Pl.'s Br. at 17; Defs.' Br. at 20). The exhaustion requirement for plaintiff's sex discrimination claim, therefore, has been met. Defendants argue that plaintiff has not presented a prima facie case of sex discrimination and that her Title VII and NJLAD claims on that ground must also fail as a matter of law.
Because plaintiff has presented only indirect or circumstantial evidence that defendants discriminated against her on the basis of her sex, the familiar McDonnell-Douglas Title VII burden-shifting rules apply. Under this framework, detailed in Section II.B of this Opinion, supra, the initial burden of production is on the plaintiff to establish a prima facie case of discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), cert. denied, 521 U.S. 1129 (1997). To meet the prima facie burden, a plaintiff must show: (1) she is a member of a protected class; (2) that she was qualified for the position for which she was applying; and (3) that nonmembers of her protected class were treated more favorably. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990). Thus, a defendant in a hiring discrimination case is entitled to summary judgment if the plaintiff fails under this standard to establish a prima facie case of discrimination. Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989),cert. denied, 493 U.S. 1023 (1990); Stinson v. Delaware River Port Auth., 935 F. Supp. 531, 539 (D.N.J. 1996), aff'd without op., 124 F.3d 188 (3d Cir. 1997).
New Jersey has adopted the McDonnell Douglas burden shifting approach to claims of discrimination in violation of the NJLAD. See Goodman v. London Metals Exchange, Inc . , 86 N.J. 19, 31 (1981) (citing Peper v. Princeton Univ. Board of Trustees , 77 N.J. 55, 81-84 (1978)). Thus, the Court will apply the McDonnell-Douglas approach to both Title VII and NJLAD claims.
Just as plaintiff failed to meet her prima facie burden for her Section 1981 claim, as discussed in Section II.B of this opinion, supra, plaintiff also fails to meet her prima facie burden for discriminatory failure to hire based on her sex. Plaintiff, a female, is a member of a protected class and satisfies the first prong of the test. Plaintiff's offered proofs again fail on the second and third prongs of theMcDonald-Douglas test.
In her brief and in her EEOC complaint, plaintiff insists that she meets the experience requirements for the position of investigator, but she cites to an outdated job specification from 1984. (See Pl.'s Br. at 3-4; Nadler Certification, Ex. B.) Plaintiff's subjective belief that she was qualified for the position based on her reliance on an outdated job specification does not meet her burden of showing that she was qualified for the position. Also, the argument that plaintiff might have been qualified under the 1984 job specification at the time she applied for the test does not assist plaintiff's claim because N.J.S.A. 4A:4-2.3(b) clearly requires that "applicant[s] shall meet the following criteria by the announced closing date," including possessing "all requirements specified in the examination announcement." Interestingly, however, in the same EEOC complaint where plaintiff claims that she meets the experience requirements for the job, she also claims that she is "aware that experience in this position is gained on the job after being hired." (Nadler Certification, Ex. B.)
Plaintiff also claims that all of the investigators in the County Medical Examiner's Office are male and that the hiring of male investigators in March, 1998 and August, 1998 demonstrates that nonmembers of her class were treated more favorably. It bears repeating that plaintiff makes general statements in her brief that these male candidates lacked the required experience and failed the civil service test (Pl.'s Br. at 3), but offers no evidence in support of her statements. The Decision of the Merit Board on plaintiff's appeal notes that the investigator hired in March, 1998 ranked first on the civil service eligibility list.
Because plaintiff has produced no proof that she was eligible for the position of investigator under the applicable job specification or that nonmembers of her group were treated more favorably, plaintiff cannot meet her burden of proof for a prima facie case of discriminatory failure to hire. Defendant's motion for summary judgment on plaintiff's Title VII and NJLAD claims based on sex discrimination will therefore be granted and those claims will be dismissed.
III. Conclusion
For the reasons discussed above, the Court will grant defendants' motion for summary judgment on plaintiff's claims of discrimination and dismiss plaintiff's complaint in its entirety. The accompanying Order is entered.
The length of this Opinion should not suggest that any of these issues is complex or even a close question as a matter of law and fact. Comprehensive treatment of plaintiff's sweeping allegations was necessary to plumb the record for any evidential support for her accusations of racial and gender discrimination by public officials. Had plaintiff (or her counsel) conceded the obvious facts that she did not meet the hiring qualifications and that she materially misrepresented her experience upon the civil service examination questionnaire, as well as the fact that she has no evidence at all that a less qualified applicant was selected, this entire motion would not have been necessary.
O R D E R
THIS MATTER having come before the Court on defendant's motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P.; and the Court having considered the submissions of the parties; and for the reasons discussed in the accompanying Opinion;
IT IS this day of February, 2001 hereby
ORDERED that Defendants' motion for summary judgment against the entire Amended Complaint be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that plaintiff's gender and racial discrimination claims under Sections 1981 and 1983 (Count I), Title VII claims (Count II), and New Jersey Law Against Discrimination claim (Count III) be, and hereby are DISMISSED WITH PREJUDICE .
Education, Experience, and Training
Possession of current and valid registration as a professional nurse in the state of New Jersey.OR
Possession of a valid certificate as a mobile intensive care paramedic issued by the New Jersey State Board of Medical Examiners.OR
Possession of a valid license to practice medicine in the state of New Jersey.OR
Successful completion of a minimum of 30 hours of basic education in death investigation conducted or sponsored by . . . an institution of higher education or other agency approved by the State Medical Examiner.OR
Three years of experience in investigating the medical causes of death in humans.