MICHAEL TOMPKINS VS. JOHN SCOTT THOMSONÂ (L-6194-09, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3676-14T1
MICHAEL TOMPKINS,
Plaintiff-Appellant,
v.
JOHN SCOTT THOMSON, LOUIS VEGA,
CHRISTINE JONES-TUCKER, CITY OF
CAMDEN, CAMDEN COUNTY PROSECUTOR,
Defendants-Respondents,
and
ARTURO VENEGAS and
STATE OF NEW JERSEY,
Defendants.
_______________________________
Argued March 2, 2017 - Decided June 26, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
6194-09.
Heidi R. Weintraub argued the cause for
appellant (Weintraub & Marone, LLC, attorneys;
Ms. Weintraub, on the briefs).
John C. Eastlack, Jr. argued the cause for
respondents John Scott Thomson, Louis Vega,
Christine Jones-Tucker and City of Camden
(Weir & Partners, LLP, attorneys; Mr. Eastlack
and Daniel E. Rybeck, on the brief).
Anne E. Walters, Assistant County Counsel,
argued the cause for respondent Camden County
Prosecutor's Office (Christopher A. Orlando,
County Counsel, attorney; Ms. Walters and
Howard L. Goldberg, First Assistant County
Counsel, on the brief).
PER CURIAM
In 2003, the New Jersey Attorney General directed defendant,
the Camden County Prosecutor (the Prosecutor) to assume control
over the daily management of the Camden City Police Department
(the Department). The Camden County Board of Chosen Freeholders
(Freeholders) entered into a consulting agreement with defendant
Arturo Venegas, engaging him as the Supersession Executive, who
would oversee the operations of the Department on behalf of the
Prosecutor.
Plaintiff Michael Tompkins filed a complaint alleging
defendants violated the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 to -49. More specifically, plaintiff alleged he
was the victim of discrimination and a hostile work environment
as a result of conduct favoring minorities by defendants Venegas,
who acted on behalf of the Department, the City of Camden (the
City) and its officials. Further, he alleged the City, John Scott
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Thomson, the Chief of Police, and Christiane Jones-Tucker, the
City's Business Administrator, took no steps to prevent the
discriminatory conduct and engaged in retaliation.1
Prior to trial, the Law Division judge granted the
Prosecutor's motion for summary judgment, concluding there was no
basis for liability because the Prosecutor was not appellant's
employer. After voluntarily dismissing with prejudice all claims
against Venegas, plaintiff proceeded to trial against the City and
its officials. The jury returned a verdict of no cause of action.
On appeal, plaintiff argues the judge erroneously dismissed
the Prosecutor from the action, urging the Prosecutor was
responsible as Venegas' superior and as a "joint employer."
Further, plaintiff raises several evidentiary rulings, which he
maintains require a new trial.
We have considered each of plaintiff's arguments in light of
the record and the applicable law. We affirm.
I.
Acting Attorney General Peter C. Harvey ordered the
Prosecutor to "supersede the management, administration[,] and
operation" of the Department on March 17, 2003. The Freeholders
1
Plaintiff's claims against the State of New Jersey were
dismissed on March 3, 2010. Plaintiff asserts no challenge to
this order.
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executed a consulting agreement with Venco, a California
corporation, to engage its president, Venegas, who was to provide
"law enforcement services for the Prosecutor, the Camden Police
Department and County of Camden."
The agreement specified Venegas' tasks, which included:
"daily management" of the Department "to the extent allowed by the
law;" representing the Prosecutor "in overseeing all police
department activities, reporting to the Prosecutor on deficiencies
and the plan to correct them;" and to "[d]evelop policies and
procedures to modernize practices in the police department to
reflect generally accepted national standards[.]" More
specifically, as the Supercession Executive, Venegas was to
[a]. Set forth clear standards of performance
for the police department and its employees
and implement a system of progressive
discipline that holds both employees and their
managers accountable for performance and
behavior;
[b]. Support the development of managers
throughout the department through mentoring
and training so that a chief of police can be
selected from inside the department;
[c]. Bring employee groups (such as unions)
into the planning and implementation process
so they feel a part of the vision for policing
Camden and feel rewarded for the
accomplishments achieved. . . .
Plaintiff began his employment with the Department in 1986
and rose to the rank of Deputy Chief of Police, the position held
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when his employment ended in 2011. Plaintiff alleged between
January 2006 and January 2008, Venegas and others committed acts
of discrimination toward him. The second amended complaint
detailed incidents occurring between January 2006 and January
2008, which comprise the basis of his causes of action. Briefly,
the discriminatory conduct alleged includes: (1) Venegas treated
plaintiff in a "condescending and derogatory manner"; (2)
plaintiff believed "Venegas ordered or authorized" others to break
into and search his office; (3) plaintiff was arbitrarily passed
over for training opportunities, which were extended instead to
less senior and less experienced minority officers; (4) Venegas
undermined plaintiff's authority by micromanaging his duties and
repeatedly sought to have him disciplined; and (5) Venegas
generally criticized his performance.
Consequences of the discriminatory conduct were also stated.
Plaintiff was transferred from Deputy Chief of Operations to Deputy
Chief of Technical Services. Thereafter, as result of another
incident, whereby plaintiff opened a sealed envelope containing
an internal affairs report investigating his conduct, plaintiff
was suspended. Plaintiff challenged the suspension asserting it
not only failed to comply with required Attorney General
Guidelines, but also was "part and parcel of Venegas and Jones-
Tucker's efforts to force [him] from his position of public
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employment in order to favor minority candidates without regard
to the merits of their promotion."
After a full review conducted by the Prosecutor's Office, the
hearing officer concluded plaintiff's actions in opening the
envelope were in part justified, and recommended plaintiff receive
a written reprimand and a six-day suspension for not revealing his
actions. However, Jones-Tucker rejected the hearing officer's
recommendation and, instead imposed a six-month suspension,
without pay.
Plaintiff alleged Chief Thomson wrongfully retaliated against
him by ignoring his reports of Venegas' discriminatory conduct,
and making it clear plaintiff should not return to the Department.
Thereafter, the City granted plaintiff's request for medical leave
and sought he undergo an independent evaluation from a "mutually
agreeable" physician, prior to returning to employment. A mutually
acceptable medical provider was not designated. On January 31,
2011, plaintiff's employment was terminated for being absent
without leave.
II.
On appeal, plaintiff challenges the grant of summary judgment
dismissing the Prosecutor's office from this action and trial
rulings excluding evidence which plaintiff argues was admissible
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and essential to proving his causes of action. We examine these
claims.
A.
Our review of an order granting summary judgment applies the
same standard utilized by the trial judge. Qian v. Toll Bros.
Inc., 223 N.J. 124, 134-35 (2015). We "must review the competent
evidential materials submitted by the parties to identify whether
there are genuine issues of material fact and, if not, whether the
moving party is entitled to summary judgment as a matter of law."
R. 4:46-2(c). Bhagat v. Bhagat, 217 N.J. 22, 38 (2014); see also
Townsend v. Pierre, 221 N.J. 36, 59 (2015).
Under this standard, we must construe all facts in the light
most favorable to the non-moving party. Robinson v. Vivirito, 217
N.J. 199, 203 (2014). If "the evidence submitted by the parties
on the motion, together with all legitimate inferences therefrom
favors the non-moving party," then summary judgment is
inappropriate, and matter must be submitted for review by the
trier of fact. R. 4:46(c). However, summary judgment should be
granted when "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law." R. 4:46-2(c); see Schiavo
7 A-3676-14T1
v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 36, (App. Div.
2015) ([We] "keep[] in mind '[a]n issue of fact is genuine only
if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion . . . . would require
submission of the issue to the trier of fact.'") (quoting R. 4:46-
2(c)), certif. denied, 224 N.J. 124 (2016).
"Purely legal questions . . . are questions of law
particularly suited for summary judgment." Badiali v. N.J. Mfrs.
Ins. Group, 220 N.J. 544, 555 (2015) (citation omitted). In our
de novo review of questions of law, we accord no deference to the
motion judge's "interpretation of the law and the legal
consequences that flow from established facts." Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). Certainly, when
competing claims require us to "construe certain statutory
provisions . . .[,] [a] de novo standard of review applies."
Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt., 210 N.J. 597,
605 (2012).
In granting the Prosecutor's motion for summary judgment, the
motion judge found the evidence did not show the Prosecutor was
plaintiff's employer, which at all times was the City of Camden.
Finding "no fundamental employment relationship," the judge
concluded the Prosecutor had no liability. Plaintiff asserts "New
Jersey courts have recognized that a [plaintiff] may be deemed to
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be jointly employed by two entities for purposes of protection
under the LAD." Plaintiff maintains when the Prosecutor took
complete control of the Department, it too became plaintiff's
employer.
The LAD prohibits discrimination based on an individual's
race or origin, N.J.S.A. 10:5-3, and requires proof of an intent
to discriminate. See El-Sioufi v. St. Peter's Univ. Hosp., 382
N.J. Super. 145, 179 (App. Div. 2005) (noting "because . . . the
invidious nature of discrimination . . . may [make it] possible
to infer an intent to discriminate, not every offensive remark,
even if direct, is actionable"). The LAD, proscribes:
an employer, because of the race, creed,
color, national origin, ancestry, age, marital
status, . . . or the nationality of any
individual, . . . 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. . . .
[N.J.S.A. 10:5-12(a)].
Plaintiff's arguments on appeal hinge on the application of
the word "employer." Ibid. "It is well settled that the goal of
statutory interpretation is to ascertain and effectuate the
Legislature's intent." Cashin v. Bello, 223 N.J. 328, 335 (2015).
"In most instances, the best indicator of that intent is the plain
9 A-3676-14T1
language chosen by the Legislature." Ibid. (citation omitted). We
"must read words 'with[in] their context' and give them 'their
generally accepted meaning.'" Ibid. (quoting N.J.S.A. 1:1-1).
Statutory language is to be interpreted "in a common sense manner
to accomplish the legislative purpose." N.E.R.I. Corp. v. N.J.
Highway Auth., 147 N.J. 223, 236 (1996). "When a statute is
ambiguous as written, however, a court may consider extrinsic
sources, including 'legislative history, committee reports, and
contemporaneous construction.'" Cashin, supra, 223 N.J. at 335-
36 (citations omitted).
The LAD prohibits conduct occurring in the context of an
employer-employee relationship. Pukowsky v. Caruso, 312 N.J.
Super. 171, 184 (App. Div. 1998). The term "employer" is defined
to include "the State, any political or civil subdivision thereof,
and all public officers, agencies, boards or bodies." N.J.S.A.
10:5-5(e). Further, we have instructed courts "'must look beyond
the label attached to [employer/employee] relationship' to
determine whether an employer/employee relation exists for the
purposes of bringing a hostile work environment claim." Hoag v.
Brown, 397 N.J. Super. 34, 47 (App. Div. 2007). In this regard,
this court developed a twelve-factor test to ascertain whether a
person is an employee under N.J.S.A. 10:5-5(f). Thomas v. Cnty.
10 A-3676-14T1
of Camden, 386 N.J. Super. 582, 595 (App. Div. 2006). The twelve
factors are:
(1) the employer's right to control the means
and manner of the worker's performance; (2)
the kind of occupation -- supervised or
unsupervised; (3) skill; (4) who furnishes the
equipment and workplace; (5) the length of
time in which the individual has worked; (6)
the method of payment; (7) the manner of
termination of the work relationship; (8)
whether there is annual leave; (9) whether the
work is an integral part of the business of
the "employer"; (10) whether the worker
accrues retirement benefits; (11) whether the
"employer" pays social security taxes; and
(12) the intention of the parties.
[D'Annunzio v. Prudential Ins. Co. of America,
383 N.J. Super. 270, 278 (App. Div. 2006)
(citing Pukowsky v. Caruso, 312 N.J. Super.
171, 182-83 (App. Div. 1998)).]
This test "requires more than the listing of factors on each
side of the ledger with victory going to the side garnering the
most factors." Chrisanthis v. Cnty. of Atlantic, 361 N.J. Super.
448, 456 (App. Div. 2003). "Where there exist several indicia of
employee status, the mere presence or absence of two or three of
them -- without a reasoned balancing of the above factors -- cannot
dictate the outcome of a summary judgment motion." Carney v.
Dexter Shoe Co., 701 F. Supp. 1093, 1099 (D.N.J. 1988).
We have identified "[t]he most important of these factors is
the first, the employer's right to control the means and manner
of the worker's performance." Chrisanthis, supra, 361 N.J. Super.
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at 455. "In analogous situations arising under federal anti-
discrimination laws, the Third Circuit Court of Appeals has adopted
a de facto test that measures the extent of the employer's control
over the employee." Thomas, supra, 386 N.J. Super. at 596 (citing
Graves v. Lowery, 117 F.3d 723, 729-30 (3d Cir. 1997)). The
control test is also applied to determine the status of an employer
when reviewing Title VII hostile work environment claims. See
Graves, supra, 117 F.3d at 728; Ass'n of Mexican-American Educators
v. California, 231 F.3d 572, 582-83 (9th Cir. 2000); Mangram v.
General Motors, 108 F.3d 61, 62-63 (4th Cir. 1997); E.E.O.C. v.
Illinois, 69 F.3d 167, 169 (7th Cir. 1995).
Generally, County Prosecutors have broad supervisory
authority over the operations of municipal police departments.
See Cherrits v. Village of Ridgewood, 311 N.J. Super. 517, 532
(App. Div. 1998). Nevertheless, as we discussed in Thomas, to
apply the LAD to the putative employer's discriminatory conduct,
the control test requires a party, which does not directly employ
the plaintiff, to engage in conduct demonstrating it nevertheless
exercised such control over a plaintiff's employment. Thomas,
supra, 386 N.J. Super. at 596-97. "Indirect liability results
when the defendant employer 'so far control[s] the plaintiff's
employment relationship that it [is] appropriate to regard the
defendant as the de facto or indirect employer of the plaintiff.
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. . .'" Id. at 597 (quoting E.E.O.C., supra, 69 F.3d at 169). We
cited authorities illustrating a de facto employer's qualifying
conduct, such as imposing hiring requirements, controlling hirings
or firings, and mandating training programs employees must
complete. Id. at 596-97.
The motion judge, although acknowledging the Attorney
General's order, adopted the Prosecutor's arguments and properly
focused on the issues evincing control, stating:
The checks didn't come from them. Their
supervision didn't come from them. The
direction didn't come from them. Their day-
to-day assignments didn't come from them. And
it is a hybrid of a management structure, but
it . . . was . . . the court's perspective
[of] that agreement, . . . [which] created the
supersession executive was an example of
articulating responsibility without really
articulating authority. A prosecutor couldn't
have called . . . plaintiff . . . and told him
to do something. Venegas would have had to
go through the chief himself. It's the
creation of . . . a managerial overlay with
no line authority, with no line
responsibility. . . . Even considering
[plaintiff]'s arguments, which are . . . not
sufficient to carry the day in terms of any
responsibility on the part of the Camden
County Prosecutor's Office.
Perhaps the findings could have been more detailed, but our
review of the record and the applicable law leads to the conclusion
the supercession order and the Freeholders' execution of the
consulting agreement with Venco did not create a legally
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recognizable employment relationship between the Prosecutor and
the municipal police officers, which must be present for plaintiff
to pursue an action under the LAD. See Thomas, supra, 386 N.J.
Super. at 594 ("[T]he lack of an employment relationship between
the plaintiff and the defendant will preclude liability.").
Importantly, the consulting agreement, executed by the
Freeholders, generally identified the scope of services provided
without differentiation for the Prosecutor, the Department, and
the City. As the motion judge found, plaintiff offers no facts
showing the Prosecutor exercised authority over his employment
sufficient to satisfy a conclusion the Prosecutor was his de facto
employer. Venegas, in providing daily management, reported to the
Chief and the City. The record contains no evidence the Prosecutor
was involved with the search of plaintiff's office, the selection
of officers for training and promotion opportunities, the day-to-
day affairs of the Department, or plaintiff's suspension or
termination. During his deposition, plaintiff agreed no acts by
the Prosecutor formulated the alleged discrimination stated in his
complaint. Rather, the allegations in the complaint, as supported
by the record, make clear the conduct undergirding his claim of
hostile work environment was attributed to Venegas, the City
officials, and the Chief of Police.
14 A-3676-14T1
Although the Prosecutor received a copy of Venegas'
memorandum discussing plaintiff's transfer, the memorandum
represents a memorialization of a meeting between plaintiff,
Venegas, plaintiff's three operations captains, and the Manager
of Public Information, who made the decisions. The Prosecutor was
never asked and never actually investigated any complaints
regarding plaintiff's performance, or alleged conduct warranting
discipline.
Accordingly, on these limited proofs, we cannot reach the
legal conclusion asserted by plaintiff that the Prosecutor stepped
into the shoes of the City and served as his de facto employer.
The Prosecutor exercised no acts of control over plaintiff's
employment, and plaintiff offered no evidence the Prosecutor
dictated the terms, conditions, discipline, and privileges of his
employment. Summary judgment was properly granted dismissing
plaintiff's complaint against the Prosecutor. Thomas, supra, 386
N.J. Super. at 594.
B.
Turning to claimed trial errors, plaintiff maintains the
trial judge erroneously granting an in limine motion filed by the
City and its employee defendants, seeking to bar evidence regarding
Venegas' alleged discriminatory conduct toward plaintiff and other
officers, once plaintiff voluntarily dismissed Venegas from the
15 A-3676-14T1
suit. The City argued it did not hire Venegas, and therefore it
had no liability if he committed acts of discrimination.
Plaintiff's claims against the remaining defendants were for
retaliation. Specifically, he alleged they failed to take action
when plaintiff complained of Venegas' acts of discrimination and
suffered discipline and ultimately termination as a result.
The LAD makes it illegal "[f]or any person to
take reprisals against any person because that
person has opposed any practices or acts
forbidden under this act[.]" N.J.S.A. 10:5-
12(d). . . . When the claim arises from
alleged retaliation, the elements of the cause
of action are that the employee "engaged in a
protected activity known to the [employer,]"
the employee was "subjected to an adverse
employment decision[,]" and there is a causal
link between the protected activity and the
adverse employment action. Woods-Pirozzi v.
Nabisco Foods, 290 N.J. Super. 252, 274 (App.
Div. 1996). In addition, in order to recover
for LAD retaliation, plaintiff must also
demonstrate that the original complaint was
both reasonable and made in good faith.
Carmona v. Resorts Int'l Hotel, Inc., 189 N.J.
354, 373 (2007).
[Battaglia v. United Parcel Serv., Inc., 214
N.J. 518, 546-47 (2013).]
Plaintiff relies on Woods-Pirozzi, supra, 290 N.J. Super. at
272-73, to support his argument the City, as his employer, was
responsible for acts by Venegas, despite his contractor status,
because it knew or should have known of his discriminatory conduct
and failed to implement corrective action. Plaintiff urges
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evidence of Venegas' conduct is relevant and admissible to show
the City's failures.
Woods-Pirozzi reviewed the plaintiff's claims of sexual
harassment by the plaintiff's supervisor and by an independent
contractor. Id. at 260-63. Drawing on federal Title VII
regulations, this court concluded: "An employer that knows or
should know its employee is being harassed in the workplace,
regardless of by whom, should take appropriate action." Id. at
269. The facts require examination of "the extent of the
employer's control and any other legal responsibility which the
employer may have with respect to the conduct of such non-
employees." Id. at 268.
The record shows the City had no control over Venegas. He
was hired by the County, which, by order of the Attorney General,
imposed its oversight for matters involving management and control
of the Department. There is no dispute regarding this fact, which
creates a vital distinction between this matter and the facts in
Woods-Pirozzi.
The trial judge did not preclude plaintiff from presenting
testimony regarding alleged retaliatory actions by the City, Chief
Thomson, Venegas and Jones-Tucker. He argues, however, it was
impossible to present a retaliation case without referencing the
conduct he complained of by Venegas. These defendants counter,
17 A-3676-14T1
asserting plaintiff's proofs required he show he voiced complaints
in good faith with a reasonable belief Venegas was discriminating
against him, and defendants engaged in an adverse employment
action. They assert he was not impeded by the trial judge's
evidentiary ruling from presenting these facts. A review of the
extensive trial record bears out defendants' position.
Numerous witnesses, including plaintiff, testified at length
regarding complaints he voiced to Jones-Tucker, the City, and
Chief Thomson, which amounted to discrimination. The jury
evaluated this evidence and concluded plaintiff's complaints did
not rise to racial discrimination or retaliation.
Finally, we have considered plaintiff's claim the trial judge
improperly applied N.J.R.E. 404(b) to exclude evidence of another
officer's similar suit against the City, which claimed Venegas had
also discriminated against him because he was Caucasian. We reject
the arguments as unpersuasive and conclude the trial judge did not
abuse his reasoned discretion.
Affirmed.
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