Tavarez v. Twp. of Egg Harbor, Civil Action No. 09-6119

Hector Tavarez Plaintiff,

v.Township of Egg Harbor, et. al., Defendants.

Civil Action No. 09-6119

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: March 25, 2013

NOT FOR PUBLICATION

Hon. Joseph H. Rodriguez

OPINION

This case arises from Plaintiff Hector Tavarez's claims that Defendants' failure to promote him to Captain of Police in 2007, 2008, and 2009 constitutes racial discrimination in violation of federal and state law. Defendants, the Township of Egg Harbor and the individual members of the Township Committee, have moved the Court for Summary Judgment pursuant to Fed. R. Civ. P. 56 [Dkt. 64]. For the reasons described herein, the Court will grant Defendants' Motion for Summary Judgment.

I. Facts and Procedural Background¹

Hector Tavarez, a Hispanic male, was hired by the Egg Harbor Township Committee on August 25, 1985. (Pl. Responsive Statement of Material Facts ("RSMF") ¶ 1) When Tavarez was hired, he was the only Hispanic officer. (Pl. Counterstatement of Material Facts ("CSMF") ¶ 2) Tavarez rose through the ranks of the Egg Harbor Township PoliceDepartment, as he was promoted to Sergeant on October 13, 1999, Lieutenant on January 1, 2006, and Captain on January 1, 2011. (Pl. RSMF ¶¶ 35, 36, 37) In the year that Tavarez was promoted to Lieutenant, he was the only candidate to have passed the Lieutenant's exam without the use of a paid study program. (Defs.' Resp. to Pl. CSMF ¶ 5) Throughout his career, Tavarez worked in various areas of the agency, as he worked as a Patrol Officer, Community Policing Officer, Patrol as a Master Police Officer, Patrol as a Sergeant, and Detective Sergeant in the Defective Bureau and Juvenile and Community Services Unit; additionally, Tavarez created and / or served on various Units and Committees, including the Off Road Motorcycle Unit, the Agency Improvement Committee, the Gang Reduction Unit, and the Hostage / Crisis Negotiation Unit. (Defs.' Resp. to Pl. CSMF ¶¶ 6-10) Tavarez was also a DARE and Adopt-a-Cop Instructor as well as a co-founder and Executive Director of the Police Athletic League. (Defs.' Resp. to Pl. CSMF ¶¶ 11-12) Tavarez has been the recipient of several honors throughout his career, including being recommended for County Law Enforcement Officer of the Year, being nominated by former Mayor Burns as the National Police Athletic League Juvenile Crime Prevention Specialist of the Year, and receiving the Nuestro Pueblo award, which was given for "improving the quality of life in our community and advancing our cultural heritage." (Pl. RSMF ¶¶ 46-50).

Tavarez first sought a Captain position in Egg Harbor Township in January 2007. (Defs.' Resp. to Pl. CSMF ¶ 22) While the parties dispute the precise history and nature of the Township Committee's decision-making process, as will be discussed herein, it is undisputed that the Township used the same promotional process between 2007 and 2011. (Pl. RSMF ¶ 85) After Township Administrator Peter Miller and the Chief of Police announced the open Captain position, the candidates expressed their interest inwriting to the Chief of Police. (Pl. RSMF ¶¶ 86-87) The Chief determined and certified the eligible candidates for Captain and presented these candidates to the Township Committee with the candidates' resumes. (Pl. RSMF ¶¶ 58, 60, 124) In Egg Harbor Township, the Township Committee is vested with the supervision, regulation, and control of the Police Department, which includes the power and authority to appoint all officers, members, and employees of the Police Department, including the final decision on whom to promote to Captain in Egg Harbor Township. (Pl. RSMF ¶¶ 55-56, 61) The Township Committee involved in the disputed promotional rounds was comprised of Mayor James McCullough, Committee Member Stanley Glassey, Committee Member John Carman, Committee Member Paul Hodson, and Committee Member John Risely. (Defs.' Ex. 35, "Egg Harbor Township's Answers to Plaintiff's Initial Interrogatories").

For each of the promotional rounds at issue, the Township Committee scheduled a special meeting and convened into closed session to conduct oral interviews of the candidates. (Pl. RSMF ¶¶ 88-90) The Township Committee then interviewed the candidates using the same interview questions, which Township Administrator Peter Miller drafted for each promotion based on issues that the town confronted at the time. (Pl. RSMF ¶¶ 90-91) Following the candidate interviews, the Committee members individually ranked the candidates and selected the candidate with the highest overall rank. (Pl. RSMF ¶¶ 95-96) The Chief of Police was then informed of the selected candidate, and either the Township Administrator or the Township Clerk drafted a resolution formally appointing the officer to the open Captain position. (Pl. RSMF ¶ 97).

Tavarez sought a promotion from Lieutenant to Captain in 2007, 2008, 2009, and 2011.² (Pl. RSMF ¶¶ 99, 182, 225, 317) The parties do not dispute that he was qualified to be Captain during each promotional round. (Defs.' Mem. Supp. Summ. J. 6) Tavarez did not receive a promotion in 2007, 2008, or 2009; rather, the Township promoted a Caucasian male after each promotional round at issue. (Am. Compl.) Tavarez claims that the Township failed to promote him during these rounds because of his Hispanic race. (Am. Compl.) Accordingly, he filed a Complaint on December 3, 2009, alleging violations of 42 U.S.C. § 1981, the New Jersey Law Against Discrimination, and the New Jersey Constitution. (See Compl.) The Complaint named as Defendants the Township of Egg Harbor as well as the individual members of the Township Committee: James McCullough, Stanley Glassey, Paul Hodson, John Risely, Jr. and John Carman, Jr.³ (See Compl.) On February 16, 2010, Defendants filed a Motion to Dismiss, which the Court granted with respect to the New Jersey Law Against Discrimination claim arising out of conduct that occurred in 2007, as the claim was barred by the statute of limitations; the Court allowed Tavarez to re-file an Amended Complaint, which was filed on July 15, 2010. [Dkt. 28, 29, 30] The Defendants answered the Amended Complaint on August30, 2010 [Dkt. 32] and filed the present Motion for Summary Judgment on June 29, 2012. [Dkt. 64].

II. Jurisdiction

The Court has subject matter jurisdiction over Plaintiff's federal civil rights claims pursuant to 28 U.S.C. § 1331, and has supplemental jurisdiction over Plaintiff's related state law claims pursuant to 28 U.S.C. § 1367.

III. Defendants' Motion for Summary Judgment

a. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c), a court shall grant summary judgment if, viewing the facts most favorable to the non-moving party, the moving party shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Cleotex Corp. V. Catrett, 477 U.S. 317, 322 (1986)); Fed. R. Civ. P. 56(c). An issue is "genuine" if it supported by evidence such that a reasonable jury could return a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.

b. Plaintiff's Race Discrimination Claims

The Amended Complaint sets forth a claim of race discrimination under 42 U.S.C. § 1983, alleging a violation of 42 U.S.C. § 1981.⁴ To be successful on such a claim under § 1981, a plaintiff must prove intentional discrimination. See Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 126 (3d Cir. 1990). Because of "the evidentiary difficulties involved in proving discriminatory intent," the United States Court of Appeals for the Third Circuit has held "that summary judgment motions in Section 1981 cases are governed by the well-known burden shifting provisions laid down in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)" that are generally applied to Title VII claims.⁵ Id. See also Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009) (noting that "the substantive elements of a claim under Section 1981 are generally identical to the elements of an employment discrimination claim under Title VII").

Under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, the plaintiff carries the initial burden of establishing a prima facie case of unlawful discrimination.⁶ 411 U.S. 792, 802. If the plaintiff succeeds in meeting his or her initial burden, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Fuentes, 32 F.3d at 763. At this stage, the defendant's burden is "light," as the defendant "satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision," but the defendant need not prove "that the tendered reason actually motivated its behavior." Id. Here, "the nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Cmty....