LUIGI PERCONTINO VS. CITY OF HOBOKEN(L-1442-15, HUDSON COUNTY AND STATEWIDE, AND L-6173-15,ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2939-15T4
LUIGI PERCONTINO,
Plaintiff-Appellant,
v.
CITY OF HOBOKEN,
Defendant-Respondent.
______________________________
Submitted October 31, 2017 – Decided November 29, 2017
Before Judges Reisner and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
1442-15 and Essex County, Docket No. L-6173-
15.
Law Offices of Louis A. Zayas, LLC, attorneys
for appellant (Mr. Zayas, of counsel and on
the briefs; Alex Lee, on the briefs).
Hanrahan Pack, LLC, attorneys for respondent
(Thomas B. Hanrahan, of counsel and on the
brief; Kathy A. Kennedy, on the brief).
PER CURIAM
This appeal arises from litigation between plaintiff Luigi
Percontino and his employer, defendant City of Hoboken. Plaintiff
appeals from a July 10, 2015 order dismissing count one of his
complaint with prejudice and dismissing count two without
prejudice to his filing an amended count two within sixty days;
an August 21, 2015 order denying reconsideration; a December 4,
2015 order denying his motion to amend the complaint; and a
February 5, 2016 order denying reconsideration. We affirm in
part, and reverse and remand in part.
I
Plaintiff, a deputy municipal court administrator, filed a
two-count complaint alleging: (1) the City violated his rights
under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to
-2, by denying him a hearing as to two disciplinary charges; and
(2) the City discriminated against him on the basis of gender, in
violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-
1 to –49, by promoting a less qualified woman into the position
of acting municipal court administrator and then appointing her
to the permanent administrator title.
Defendant filed an answer to the complaint, admitting that
plaintiff received the two disciplinary charges, but asserting
that defendant, while represented by counsel, "voluntarily waived
his right to hearings" and settled the matters. The answer
asserted that plaintiff "pleaded guilty to both sets of [c]harges"
and agreed to the sanctions to be imposed. Defendant admitted
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that the female candidate was interviewed for the acting
administrator position and appointed to the position. Defendant
did not assert that plaintiff was considered for the position or
given the opportunity to apply for it.
After filing its answer, defendant filed a motion to dismiss
the complaint as a matter of law pursuant to Rule 4:6-2. At oral
argument of the motion, plaintiff's counsel conceded that count
one asserted a denial of procedural, not substantive, due process.
The motion judge dismissed count one with prejudice, concluding
that the NJCRA does not apply to violations of procedural due
process.
Addressing count two, the motion judge concluded that
plaintiff failed to state a claim under the LAD because his
complaint did not include a factual allegation that he had applied
for either the acting or permanent administrator position, and
there was no explanation as to why he did not apply. The judge
reasoned:
[H]e doesn't claim that he didn't apply
because the process took place in secrecy. He
doesn't say that. I mean, again, I can agree
that you have to fit the [prima facie] factors
to the scenario. He doesn't say that there
was some secret application process where only
certain people were informed of it, but not
me. He doesn't say that. I could understand
that. He doesn't say that either. So he
didn't apply for it. He's just complaining
that a woman got the job.
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Accordingly, the judge dismissed count two without prejudice
and granted plaintiff leave to file an amended count two within
sixty days. Plaintiff filed a motion for reconsideration, without
requesting oral argument. The motion was denied by order dated
August 21, 2015. After the August 21, 2015 order was issued, the
case was transferred from Hudson County to Essex County and the
case was assigned to a new motion judge (the second judge).
On September 8, 2015, plaintiff filed a motion to amend the
complaint. Instead of filing a brief, plaintiff's attorney filed
his own certification, setting forth legal arguments supporting
the motion. The attorney argued that the amended complaint
"clarifies the previous complaint to indicate that Hoboken
deliberately withheld information regarding" the acting
administrator position, and that if plaintiff had been "aware of
the opening" he would have applied for it. Plaintiff also sought
leave to amend the complaint asserting the due process violation.
Although count one (NJCRA) had been dismissed with prejudice,
the amended complaint included the former count one, and added two
more counts based on the New Jersey Constitution and 42 U.S.C.A.
§ 1983. The amended complaint once again recited the same facts
concerning the disciplinary charges. The factual recitation did
not address defendant's central contention that plaintiff, while
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represented by counsel, had settled the disciplinary charges.
Instead, the amended complaint repeated the same vague allegations
as the original complaint, without setting forth more specific
facts.
Plaintiff also re-pled his LAD claim. However, in keeping
with the first motion judge's decision, this time plaintiff's
factual statement specifically addressed the reasons why plaintiff
did not apply for the acting administrator position. Plaintiff
asserted that "Hoboken deliberately withheld information regarding
the opening from [p]laintiff." He also asserted that he would
have applied for the position, had he known of the opening while
it was still available. He further asserted that the disciplinary
charges were a "sham" designed to harm his career and discriminate
against him.
In opposing the amended due process counts of the complaint,
defense counsel argued that plaintiff had no viable claim under
either § 1983 or the State Constitution. She asserted that
plaintiff had available State law remedies to challenge the
discipline, but instead waived his right to a hearing and settled
the disciplinary case. In response to a direct question from the
judge as to whether plaintiff had settled the disciplinary charges,
plaintiff's counsel replied that it was "unclear." Asked whether
the proposed amendment would be "futile," plaintiff's counsel
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asserted that the alleged settlement was "information that's
outside of the complaint," but he did not specifically deny to the
judge that there had been a settlement.
The second judge denied the motion to amend, applying what
he believed was the first judge's holding, that plaintiff "needed
to apply for that position to be able to have relief" under the
LAD. The second judge also reasoned that the amendment asserting
the § 1983 and State constitutional claims would be "futile."
Plaintiff filed a motion for reconsideration, which the
second judge denied on the grounds that plaintiff failed to apply
for the administrator position. He also reasoned that the due
process-related amendments would be futile, because plaintiff
settled the disciplinary charges. On the latter point, the judge
stated:
The plaintiff was given the opportunity for a
hearing, but bargained for and accepted a
lesser punishment in lieu of having a hearing.
The plaintiff can't negotiate a plea
bargain and later come back and sue because
he wasn't given notice and a hearing in
violation of his procedural due process. The
plaintiff didn't avail himself of the due
process that he was entitled to, and that was
made available to him.
The plaintiff . . . must either avail
himself [of] the remedies provided by law or
prove that the available remedies were
inadequate. And that comes out of Florida
Prepaid Postsecondary Education Expense Board
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v. College Saving Bank, 527 U.S. 627 [1999].
. . .
A State cannot be held to [have] violated
due process requirement[s] when it has made
procedural protections available and the
plaintiff has refused to avail himself [of]
them.
II
Our review of the trial court's dismissal of a complaint on
the pleadings is de novo. Rezem Family Assocs., LP v. Borough of
Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,
208 N.J. 368 (2011). On a Rule 4:6-2 motion, the court must deem
the factual allegations in the complaint as true, viewing the
pleading indulgently to determine whether a cause of action can
be discerned. Printing Mart-Morristown v. Sharp Electronics
Corp., 116 N.J. 739, 746 (1989). If, on a motion to dismiss, the
parties place before the court legally competent evidence outside
the pleadings, the motion is converted to one for summary judgment.
R. 4:6-2. Ordinarily, an order granting a Rule 4:6-2 motion is
without prejudice, unless an amended complaint would be futile
because the claim would necessarily fail as a matter of law.
Rezem, supra, 423 N.J. Super. at 113.
After reviewing the record de novo, we affirm the dismissal
of plaintiff's claim under the NJCRA. As both motion judges
correctly concluded, the NJCRA does not apply to procedural due
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process claims. See N.J.S.A. 10:6-2(c) (creating a cause of action
for deprivation of "any substantive due process" rights); Major
Tours, Inc. v. Colorel, 799 F. Supp. 2d 376, 405 (D.N.J. 2011).
Plaintiff's arguments on this point do not warrant further
discussion. R. 2:11-3(e)(1)(E).
We also affirm the orders denying the motion to amend as to
the alleged due process violation and denying reconsideration on
that issue. Because defendant's central contention was that the
due process claim was barred by a settlement, defendant should
have filed a summary judgment motion on that issue, supported by
legally competent evidence of the settlement. See R. 4:46-1
(either party may move for summary judgment thirty-five days after
the complaint is filed). However, on the record presented to us,
it appears that there is no genuine dispute that plaintiff pled
guilty to the disciplinary charges, in return for reduced penalties
and the chance to be paid for the suspension time by using vacation
days. Moreover, plaintiff failed to plead facts from which a
court could discern how he could avoid the doctrines of waiver or
exhaustion of administrative remedies.
We reach a different result on the LAD amendment. We
appreciate that the second judge believed he was following the law
of the case in denying the motion. However, a careful reading of
the first judge's ruling reveals that plaintiff actually followed
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that judge's guidance in re-pleading and pled a prima facie LAD
case as to the acting administrator position.
As the first motion judge recognized, the prima facie case
is flexible, depending on the circumstances. Viscik v. Fowler
Equip. Co., 173 N.J. 1, 14 (2002). Therefore, it is not necessary
for a plaintiff to plead or prove that he or she applied for a job
if, for example, the employer selected a candidate without giving
other employees an opportunity to apply, or if an application is
not otherwise required to be considered for promotion. See EEOC
v. Metal Serv. Co., 892 F.2d 341, 349-50 (3d Cir. 1990); Box v.
A & P Tea Co., 772 F.2d 1372, 1376-77 (7th Cir. 1985), cert.
denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724 (1986).
See also Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432,
443 (1988).
In this case, plaintiff claims that, without making it known
that the position was available, the employer interviewed and
selected a less qualified female employee for the acting
administrator position. That was sufficient to state a LAD claim.
See Box, supra, 772 F.2d at 1376-77. As to that claim, we reverse
the December 4, 2015 and February 6, 2016 orders and remand this
case to the trial court for further proceedings consistent with
this opinion.
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Neither plaintiff's proposed amended complaint nor his
appellate brief explain how he stated a claim as to the permanent
administrator position, a job for which he apparently did not
apply even though his complaint stated that the position was
posted. We affirm the orders on appeal as they relate to that
portion of the complaint.
Affirmed in part, reversed and remanded in part. We do not
retain jurisdiction.
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