Court Finds That Police Officer Properly States Claim for Discriminatory Failure to Promote

Gregory S. Schaer, a Monmouth County based New Jersey Employment Attorney located in Manalapan, represented the employee in a lawsuit against their employer alleging claims of race discrimination.

In Hampton v. Borough of Tinton Falls Police Department , 98 F.3d 107 (3d Cir. 1996), the plaintiff, an African American Detective Sergeant of the Tinton Falls Police Department, sued his employer alleging discrimination in connection with the Borough’s decision not to promote him from Sergeant to Lieutenant. The Third Circuit Court of Appeals reversed the District Court’s dismissal of the employee’s disparate treatment claim alleging discriminatory failure to promote.

In that case, the employee was one of four candidates to apply for two promotional opportunities. The three other candidates included two Caucasians and one Latino. In order to be promoted, a candidate had to first pass a multiple choice exam then compete before a Promotional Review Board and an Oral Review Board.

The Promotional Review Board met to review the candidates and evaluated the applicants’ record and performance using ten factors, each of which was worth ten percent of the candidates’ evaluation. Each board member had access to the candidates’ resume, performance evaluations for the three prior evaluation periods and the candidates’ personnel file. Board members reviewed those records and also discussed their impressions of the candidates based upon personal experience. The scores from the Promotional Review Board and the Oral Review Board were then averaged with each score weighted equally. The candidates were judged on their decision-making ability, analytical ability, communication skills, judgment and creativity.

Believing that the scores were subjective and were not accurately based upon the candidate’s qualifications, the employee filed a complaint with the EEOC claiming that he was not promoted because of his race. After filing the Complaint, the employee was notified that an internal investigation was being initiated and that he was under disciplinary investigation for allegedly filing the EEOC complaint while on duty, which is not something that the employee did.

After realizing that their investigation was based upon an error, the Borough maintained that it ended the investigation without any adverse consequences to plaintiff. However, the employee was subsequently removed from the Detective Bureau and reassigned to Road Patrol.

The employee asserted several theories of recovery including claims that the defendants’ actions in not promoting him violated Title VII of the Civil Rights Act of 1964, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 and 42 U.S.C. 1981 and 1983. The employee also alleged that his reassignment was in retaliation for his EEOC complaint in violation of Title VII of the Civil Rights Act of 1964, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 and the employee’s free speech rights pursuant to 42 U.S.C. 1983.

In discussing the employee’s discrimination claims based upon both disparate treatment and disparate impact, the court explained that disparate treatment is the most easily understood type of discrimination. The court explained that in such cases, the employer simply treats some people less favorably than other because of their race, color, religion or other protected characteristics. Claims of disparate impact involve employment practices that are factually neutral in their treatment of different group but that in fact fall more harshly on one group than another and cannot be justified by business necessity.

The employer attempted to assert that each of the candidates were evaluated by the same criteria and that the other individuals were promoted because they received a higher score in the Promotional Review Board and Oral Review Board evaluations and therefore were the most qualified. However, the Court of Appeals noted that there were several discrepancies in the evaluation process that could support a finding that race was a motivating factor in the decision not to promote the employee.

The court noted that when the employee’s performance evaluations were considered by the Promotional Review Board, less consideration was given to the recommendation of one of the individuals who gave the employee a favorable ranking even though that individual was the employee’s supervisor at the time of the promotion.

The employee also asserted that the score that he received in the category of education and self-improvement reflected a discrepancy that could give rise to an inference of discrimination. The employee asserted that he received a lower score even though he had an Associates Degree and credits from a State college in contrast to other individuals who had not yet obtained a degree.

With respect to the employee’s claim for retaliation, the court found that although the investigation was dropped, the employee’s involuntary transfer remained. The court rejected the employer’s assertion that the employee’s transfer was merely a reassignment and not a demotion based upon the fact that neither the employee’s rank nor his pay was decreased. The court held that although the rotation may not be a demotion, it came shortly after the employee’s filing of his EEOC charge and the employee alleged that his Road Patrol assignment was less desirable than that of Detective Bureau.

To speak with an experienced New Jersey Employment Law Attorney, contact the Law Offices of Gregory S. Schaer, LLC, conveniently located in Monmouth County, New Jersey.

• Hampton v. Borough of Tinton Falls, 98 F.3d 107 (3d Cir. 1996)