                                NOT FOR PUBLICATION WITHOUT THE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-5576-16T1

DANIEL CHIRINO,

          Plaintiff-Appellant,

v.

CITY OF HOBOKEN and
DAWN ZIMMER, Mayor of
Hoboken in her individual
capacity,

     Defendants-Respondents.
_____________________________

                    Submitted March 12, 2019 – Decided August 16, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-3671-14.

                    Louis Alexander Zayas, attorney for appellant.

                    Hanrahan Pack, LLC, attorneys for respondents
                    (Thomas B. Hanrahan, of counsel and on the brief;
                    Kathy Ann Kennedy, on the brief).

PER CURIAM
      Plaintiff Daniel Chirino, a former member of defendant City of Hoboken's

Police Department (HPD), appeals from evidentiary rulings made by the trial

judge on May 30, 2017 and June 21, 2017, and from the judge's July 7, 2017

order granting Hoboken's Rule 4:37-2(b) motion for involuntary dismissal of

plaintiff's complaint.1 His complaint alleged his termination as a Hoboken

police officer violated the New Jersey Law Against Discrimination (NJLAD),

N.J.S.A. 10:5-1. It was undisputed that plaintiff's termination arose from two

incidents involving disputes between plaintiff and his former girlfriend that

resulted in disciplinary charges being brought against him based upon plaintiff

lying to his superiors about one incident and a final restraining order (FRO)

being issued against plaintiff under the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35.

      On appeal, plaintiff argues that the trial judge improperly denied him the

opportunity to introduce evidence from a prior discrimination litigation

involving Zimmer because the trial judge "incorrect[ly] interpret[ed] the law of


1
  In addition, plaintiff appeals from another judge's April 7, 2017 order granting
Hoboken's former mayor, defendant Dawn Zimmer's motion for summary
judgment dismissing his complaint and a May 17, 2017 order denying
reconsideration of that order. However, plaintiff's appellate brief does not
address either order. For that reason, we deem his appeal from those orders to
be waived. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501,
505-06 n.2 (App. Div. 2015).
                                                                          A-5576-16T1
                                        2
the case doctrine."    He also contends he adduced sufficient evidence of

discrimination to warrant the denial of the Rule 4:37-2(b) motion because there

were "triable issues of material fact that Hoboken had no lawful authority to

terminate plaintiff without the approval of [its] police chief." We disagree and

affirm, substantially for the reasons expressed by the trial judge, Francis B.

Schultz, in his oral and written decisions issued in support of each order.

                                            I.

      "We present the facts adduced at trial 'accepting as true all the evidence

which supports [plaintiff's position] and according him the benefit of all

inferences which can reasonably and legitimately be deduced therefrom,' as we

must, given the procedural posture of this case." Smith v. Millville Rescue

Squad, 225 N.J. 373, 379-80 (2016) (alteration in original) (quoting Verdicchio

v. Ricca, 179 N.J. 1, 30 (2004)).

      Plaintiff, who identifies as Hispanic, was hired by Hoboken as a police

officer in 2008 and had no disciplinary issues until October 1, 2011. On that

day, he was on duty when his former girlfriend, M.C., contacted him and stated

that she intended to commit suicide. Plaintiff abandoned his post without

permission and went to M.C.'s Jersey City residence while armed and dressed in

full uniform. Upon his arrival, plaintiff noticed that M.C. was with a man, J.A.,


                                                                          A-5576-16T1
                                        3
whom plaintiff had heard over the phone when M.C. called. A verbal altercation

ensued, and J.A. contacted the Jersey City Police Department (JCPD) to report

a domestic disturbance. Plaintiff left M.C.'s residence and returned to his post

in Hoboken before any Jersey City police officers arrived.

      The JCPD informed the HPD that plaintiff had been involved in a

domestic disturbance incident. Two HPD sergeants questioned plaintiff about

whether he had been in Jersey City, which he denied. Due to the conflicting

reports, the sergeants      asked plaintiff to      write an    interdepartmental

memorandum, in which plaintiff again stated that he had not been in Jersey City.

In the memo, plaintiff accused J.A. of filing a false police report and contended

that the accusations against him were false. Plaintiff also stated that he had been

told by "other Hoboken [p]olice officers and mutual friends" that J.A. was a

"manipulative and compulsive liar," and that J.A. filed the report in retaliation

and because he took issue with plaintiff's relationship with M.C.

      The next day, plaintiff and M.C. made plans to see one another. When

plaintiff arrived at M.C.'s home, he saw her drive away with J.A. Plaintiff

became upset and texted M.C. that he had suicidal thoughts, and M.C. forwarded

the text messages to the JCPD and the HPD.




                                                                           A-5576-16T1
                                        4
      In response to receiving the texts, Hoboken's Internal Affairs (IA) officers

met with plaintiff, and questioned him about his relationship with M.C. and the

text messages he sent. During the inquiry, plaintiff confirmed that he was

continuing to experience suicidal thoughts.

      Plaintiff was taken to the hospital for an evaluation and was released the

following day. During his subsequent interview with a psychologist, plaintiff

admitted that he did not intend to hurt himself, but said so due to the effect it

would have on M.C. A few days later, plaintiff underwent a "fit for duty

examination," and was deemed unfit. He was then required to be medically

cleared, his weapon was removed from his home, and he was assigned "light

duty" for three months, during which time he underwent counseling.

      According to plaintiff, the next incident, which led to the entry of an FRO

against him, arose from calls he received from M.C. on November 25, 2011 and

from an incident the next day when M.C. let herself into plaintiff's apartment

and assaulted him. Plaintiff stated that when M.C. entered his apartment, he

called 911 and explained the situation. M.C. attempted to leave plaintiff's

residence to avoid the authorities, but the police arrived and arrested M.C. As

a result of this incident, a FRO was issued against both plaintiff and M.C. on

December 22, 2011. An amended FRO was issued on February 17, 2012, which


                                                                          A-5576-16T1
                                        5
allowed plaintiff to possess a firearm in the course of duty and on March 29,

2012, the FROs against plaintiff and M.C. were dismissed by consent.

      However, the FRO issued against plaintiff triggered another IA

investigation into his conduct. During that investigation, IA confirmed that

plaintiff was in fact in Jersey City on October 1.

      The IA investigation into the November 26 incident also led to the HPD

imposing sanctions on plaintiff.       As stated in a Preliminary Notice of

Disciplinary Action (PNDA) issued in December, plaintiff was placed on

administrative leave and suspended without pay for fifty days as of December

30, 2011, due to his inability to carry a firearm as a result of the FRO.

      On February 16, 2012, at a meeting plaintiff and his attorney had with IA

personnel, he received a Notice of Administrative Investigation that stated an

investigation was being conducted regarding his reporting of the October 1

incident.   At the meeting, plaintiff confessed that he lied about what had

transpired on October 1, including his not abandoning his post and accusing J.A.

of filing a false police report. Plaintiff was asked to submit a memorandum in

which he admitted in writing to lying, and submitted it on February 17, 2012.

On February 28, 2012, plaintiff received a new PNDA based on his admitted




                                                                            A-5576-16T1
                                        6
untruthful reporting about the October 1 incident. According to the PNDA,

Hoboken sought plaintiff's immediate termination.

      On June 14, 2012, Hoboken's Chief of Police, Anthony Falco, wrote a

letter to Hoboken's Business Administrator Quentin Wiest, the individual

responsible for determining plaintiff's discipline, recommending that plaintiff

not be terminated.     Falco urged Wiest to consider "the totality of the

circumstances," such as plaintiff's family and personal situations, before

rendering a decision, and opined that plaintiff had been suffering from Chronic

Stress Syndrome at the time of the infraction. He also explained that plaintiff

had previously been a "fine officer and very professional" and that given the

chance, "can again become the officer he once was."

      In a second letter written on plaintiff's behalf on August 10, 2012, Falco

noted the seriousness of plaintiff's infraction and recommended that he be

disciplined, but urged Wiest not to pursue termination, which would be an

"extreme measure" based on plaintiff's history with the department, the fact that

he had had no previous disciplinary issues, his untruthfulness having been

motivated by a high level of stress, and the fact that subsequent evaluations

deemed him fit for duty.




                                                                         A-5576-16T1
                                       7
      An administrative disciplinary hearing was held at plaintiff's request on

August 17, 2012, addressing the two PNDAs issued to plaintiff. The hearing

was conducted by Hoboken's then Public Safety Director, John Tooke, who had

signed plaintiff's second PNDA. Tooke was a retired, thirty-four-year veteran

of the JCPD, and served as its third in command.

      After the hearing, Tooke issued a report on September 14, 2012 with his

findings. He explained that the first PNDA concerned violations of Conduct

Unbecoming a Public Employee and other Sufficient Cause, N.J.A.C. 4A:2-

2.3(a), as well as violations of the Departmental Rules and Regulations,

including Standards of Conduct, Neglect of Duty, and Conduct Subversive of

the Good Order and the Discipline of the Department. The second PNDA related

to violations of similar regulations, as well as Prohibited Activity on Duty, five

counts of Knowingly and Willfully Making a False Entry into a Report or

Record, and Failure to Properly Patrol a Post under the departmental rules.

      Tooke found that plaintiff was guilty of conduct unbecoming a police

officer with regard to both PNDAs, and as to the second, he was also guilty of

the charged violations of Departmental Rules and Regulations. He explained

that conduct unbecoming a law enforcement official "is a serious violation" and

that plaintiff's actions were a "serious breach of acceptable standards of


                                                                          A-5576-16T1
                                        8
conduct" that "undermine[] the respect for law enforcement in general and

tarnish[] the reputation of the [HPD] in particular." With regard to Neglect of

Duty and Prohibited Activity on Duty, Tooke explained that failure to properly

patrol and conduct subversive to good order are "very serious violations and go

to the very core of the police service."       He found that plaintiff's conduct

"undermine[d] the foundations of discipline and prevent[ed] the effective and

efficient delivery of police service." Tooke held that for both of these violations,

a six-month suspension from duty and pay was appropriate.

      Finally, Tooke addressed the charge that plaintiff knowingly and willfully

made a false report, explaining that it "is the most serious administrative charge

that can be made against a law enforcement official." Tooke did not find that

plaintiff made such statements in a "haste" or "panic" as he had contended, and

that his statements falsely accused J.A. of the criminal offense of filing a false

police report, N.J.S.A. 2C:28-4. He noted that plaintiff involved other HPD

officers in his accusations.

      Tooke concluded that plaintiff's "false statements were numerous,

specific, material to his job, intended to hide his wrongdoing, purposeful in the

attempt to assign blame to another and willing to involve other [o]fficers in the

act." He noted that from October 1, 2011 to February 16, 2012, plaintiff made


                                                                            A-5576-16T1
                                         9
no attempt to amend his false statements, which caused the internal investigation

to continue for over four months. Because "[h]onesty is an essential job function

of every police officer in New Jersey," Tooke found that this violation was so

egregious as to warrant termination. Based on Tooke's report, plaintiff was

notified by Hoboken in a September 28, 2012 Final Notice of Disciplinary

Action that he was terminated effective immediately, and his earlier fifty day

suspension was approved. 2

      On August 21, 2014, plaintiff filed his complaint in this action contending

that he had been the subject of unlawful retaliation under the NJLAD because

he, as a Hispanic male, had been treated differently than similarly-situated

Caucasian officers when his employment was terminated. According to the

complaint, those other officers received discipline for violations that involved a

fight in which one officer was injured, filing inaccurate reports, domestic

violence, and driving while intoxicated, but were subjected to progressive

discipline and were not terminated.


2
   Plaintiff appealed his termination to the Civil Service Commission. The
appeal resulted in a settlement between plaintiff and Hoboken that was
memorialized in a January 2014 "Settlement Agreement and Release"
(Settlement Agreement) that described how Hoboken would advise other law
enforcement agencies that were considering whether to hire plaintiff about the
circumstances surrounding plaintiff's "resignation." Despite his efforts to secure
employment, plaintiff could not find a new law enforcement position.
                                                                          A-5576-16T1
                                       10
      After defendants filed a successful motion under Rule 4:6-2 that led to the

dismissal of plaintiff's complaint, he filed an amended complaint on April 24,

2015, alleging unlawful termination and alleging that Zimmer aided and abetted

other government officials in terminating plaintiff's employment without

progressive discipline, violating the NJLAD as well as the New Jersey Civil

Rights Act (CRA), N.J.S.A. 10:6-1 to -2, for terminating plaintiff's employment

due to national origin, ethnicity, or race. The amended complaint survived a

second motion to dismiss because discovery was not yet completed.

      In February 2017, plaintiff filed a motion for summary judgment, and

defendants filed a cross-motion for the same relief seeking dismissal of all of

plaintiff's claims. On April 7, 2017, the motion judge denied plaintiff's motion

for summary judgment and granted defendants' motion for summary judgment

as to Zimmer only.

      In his accompanying twenty-one page statement of reasons, the judge

explained that there were questions of material fact that could not be determined

on the motion record relating to plaintiff's claims against Hoboken and its

defenses. Addressing the claims against Zimmer, the judge found that there was

no evidence that Zimmer had ever met plaintiff or was involved in the decision-




                                                                         A-5576-16T1
                                      11
making process that led to his termination, or that she acted in concert with any

other Hoboken officials.

      Plaintiff filed a motion for reconsideration, which the motion judge denied

after he rejected plaintiff's contentions that he incorrectly determined that

Zimmer played no role in the termination.       The judge explained that both

Zimmer and Angel Alicea, Director of Public Safety, testified during depositions

that Zimmer was uninvolved in the decision to terminate plaintiff, and Zimmer's

testimony was not contradicted.

      At trial, Hoboken moved in limine to bar any testimony about an earlier

unrelated lawsuit successfully pursued by Alicea against Hoboken based upon

Zimmer's discriminatory conduct. In response, the judge indicated he was not

granting the motion at that time, but would consider it later if objections were

raised while the witness testified. After Alicea testified and before Zimmer took

the stand, Judge Schultz instructed the jury, sua sponte, to disregard testimony

the jury heard about the verdict entered against Hoboken during Alicea's

testimony, and that another judge already determined Zimmer had nothing to do

with plaintiff's termination.

      After the close evidence, on July 7, 2017, Judge Schultz granted

defendants' motion for involuntary dismissal. In his accompanying written


                                                                         A-5576-16T1
                                      12
decision, the judge explained that plaintiff lied willfully and repeatedly

throughout the course of the investigation of the October 1 incident. The judge

set out the four-part analysis—a "slightly adjusted" version of the McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) test—and questioned whether

plaintiff had established a prima facie claim that would warrant an inference of

discrimination because his disciplinary offenses were so serious that he could

not have been performing his job at a level that met his employers' expectations.

      Assuming that plaintiff had satisfied that burden, Judge Schultz also

addressed plaintiff's contentions regarding plaintiff's evidence of Hoboken's

disparate treatment of non-Hispanic officers who allegedly committed similar

offenses but were not terminated. The judge described the incidents in detail

and found that they were neither identical nor equally as serious as plaintiff's

infractions. The judge also found that while there were incidents of officers who

committed nearly identical but lesser offenses, all three of those officers were

also minorities including two who were Hispanic. The judge concluded that

plaintiff produced no evidence of discrimination against Hispanics, stating

"[n]othing offered by . . . plaintiff . . . in terms of lenient treatment to white

officers, approached plaintiff's conduct either in terms of identity or degree of




                                                                          A-5576-16T1
                                       13
seriousness." In short, the judge concluded, "plaintiff produced no evidence of

discrimination against Hispanics."

      The judge also addressed plaintiff's contention that there was sufficient

evidence to support his claim that he was entitled to a lesser punishment under

the policy of progressive discipline. Citing to In re Carter, 191 N.J. 474, 484

(2007), Judge Schultz stated that there was no evidence that the "lack of

progressive discipline was . . . connected to discrimination [and b]esides,

progressive discipline is not for employees who commit serious offenses."

      Judge Schultz rejected plaintiff's argument that only Falco could order his

termination. Citing to specific Civil Service regulations applicable to imposing

major discipline on a police officer, the judge concluded that "major discipline

. . . can be determined by the appointing authority or its designated

representative."

      The judge found that "[t]he malicious and totally unnecessary statements

that . . . plaintiff made about J.A. place[d] his conduct in a class of its own" that

warranted termination. He then granted defendants' motion for involuntary

dismissal due to a lack of evidence of discrimination. This appeal followed.




                                                                             A-5576-16T1
                                        14
                                           II.

      In reviewing the grant or denial of a motion for involuntary dismissal, we

apply a de novo standard of review. Smith, 225 N.J. at 397. We accept as true

all evidence that supports the position of the party defending against the motion

and accord that party the benefit of all inferences that can reasonably and

legitimately be deduced therefrom. Ibid. (citing Verdicchio, 179 N.J. at 30). If,

in doing so, reasonable minds could differ, the motion must be denied. Ibid. A

motion for involuntary dismissal should only be granted "where no rational juror

could conclude that the plaintiff marshaled sufficient evidence to satisfy each

prima facie element of a cause of action." Ibid. (quoting Godfrey v. Princeton

Theological Seminary, 196 N.J. 178, 197 (2008)).

      Under the NJLAD, in order to establish a prima facie case of racial

discrimination in the workplace, a plaintiff must show that (1) he belongs to a

protected group; (2) he was performing his duties at a level that met his

employer's legitimate expectations; (3) he was nevertheless terminated; and (4)

the employer sought someone to perform the same work after he left. Zive v.

Stanley Roberts, Inc., 182 N.J. 436, 450 (2005).

      If a NJLAD plaintiff establishes those four elements, the burden then

shifts to defendant to demonstrate a legitimate, non-discriminatory reason for


                                                                         A-5576-16T1
                                      15
the termination. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399

(2005). If a defendant comes forward with such evidence, the burden shifts back

to plaintiff to point to evidence that the employer's proffered reason is merely a

pretext for discrimination—that is, "evidence . . . from which a factfinder could

reasonably either (1) disbelieve the employer's articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer's action." Zive, 182 N.J. at

455-56. The plaintiff must show both that the employer's reason was false and

that it was "motivated by discriminatory intent." Henry v. N.J. Dep't of Human

Servs., 204 N.J. 320, 331 (2010). Performance markers, like poor evaluations,

are more properly debated and evaluated in these stages of the burden-shifting

analysis than in prong two of the prima facie case. Zive, 182 N.J. at 455.

                                            III.

      Applying these principles, we begin by addressing plaintiff's argument

that the trial judge ignored plaintiff's uncontroverted evidence that Hoboken did

not have a non-discriminatory motive to terminate his employment because

Falco did not authorize disciplinary charges or approve the termination.

Plaintiff relies upon N.J.S.A. 40A:12-118 and language in the HPD's internal

rules and regulations that places with the chief of police responsibility for


                                                                          A-5576-16T1
                                       16
discipline of the department's police officers. Specifically, he relies on HPD

Rule 7.3.1, which deals with the department's authority to discipline, and states

that "[e]xcept as otherwise provided in the Civil Service Law and N.J.S.A.

40A:14-14 to 151 . . . the department disciplinary authority and responsibility

rests with the Police[ ]Chief" (emphasis added). We conclude his reliance on

HPD Rule 7.3.1 is inapposite.

      As the HPD rule expressly states, it is subject to the provisions of the Civil

Service laws and regulations. N.J.A.C. 4A:2-2.1 to -2.6 establishes the authority

for determining a police officer's violations of applicable regulations and rules

for which he or she is being subjected to "major discipline." The regulations

define major discipline to include removal and suspension for more than five

working days. N.J.A.C. 4A:2-2.2(a). Before major discipline may be imposed,

an officer is entitled to notice of the charges and an opportunity for a hearing

before "the appointing authority" or its "designated representative." N.J.A.C.

4A:2-2.5; N.J.A.C. 4A:2-2.6; N.J.A.C. 4A:2-2.13 (addressing a law enforcement

officer's entitlement to a hearing before a removal).

      Here, plaintiff does not contend that Hoboken failed to follow the exact

procedure detailed in the Civil Service regulations applicable to imposition of

major discipline. Nor does plaintiff challenge Tooke's appointment as hearing


                                                                            A-5576-16T1
                                       17
officer or Wiest's designation as the appropriate authority. See N.J.S.A. 40A:14-

118; Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 98 (App. Div. 2000)

("appropriate authority" is defined as the mayor, manager, or such other

appropriate executive or administrative officer, "such as a full-time director of

public safety, or the governing body or any designated committee or member

thereof, or any municipal board or commission established by ordinance for such

purposes"). Plaintiff's contention is that Hoboken acted in a discriminatory

manner by following the HPD regulations' exception to a police chief's authority

in major discipline cases. The argument is without any merit. Further, as Judge

Schultz observed, there was no evidence that Falco's lack of involvement was

linked to any suggestion of discrimination. Rather, the evidence established that

Tooke and Wiest took Falco's recommendations into consideration before

making their decision.

                                           IV.

      Next, we consider plaintiff's argument that he adduced sufficient evidence

that defendants' stated reasons for his termination were a pretext as his removal

was actually based upon discriminatory reasons demonstrated by his disparate

treatment as compared to non-minority officers. We conclude, as Judge Schultz

found, there was no evidence of disparate treatment.


                                                                         A-5576-16T1
                                      18
      At the outset, we are satisfied that even assuming plaintiff established a

prima facie claim of discrimination, Hoboken successfully met its burden to

come forward with non-discriminatory reasons for terminating plaintiff. We

agree with Judge Schultz that plaintiff's undisputed actions on October 1, 2011

were objectively serious and included plaintiff falsely accusing someone of

committing a crime.

      We "have upheld dismissal of employees, without regard to whether the

employees have had substantial past disciplinary records, for engaging in

conduct that is unbecoming to the position." In re Hermann, 192 N.J. 19, 34

(2007). In doing so, we have held law enforcement officers to a higher standard

of responsibility and conduct than other public employees. Moorestown v.

Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965). "[A] police officer

[cannot] complain that he or she is being held to an unfairly high standard of

conduct. Rather, 'it is one of the obligations he undertakes upon voluntary entry

into the public service.'" In re Phillips, 117 N.J. 567, 577 (1990) (quoting In re

Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)).

      In NJLAD cases, once the employer demonstrates a non-discriminatory

reason for an adverse employment action, the plaintiff has an opportunity to

show that the employer's purported reason is merely pretext. Gerety, 184 N.J.


                                                                          A-5576-16T1
                                       19
at 399. To establish pretext, a plaintiff is entitled to offer evidence as to

"whether unequal treatment has occurred, intentionally or as a result of a policy's

impact on members of a protected group, [through] two approaches [that] have

been generally accepted. . . . disparate treatment and disparate impact—and we

acknowledge both as cognizable under the [NJ]LAD." Id. at 398. Disparate

treatment is defined as where "[t]he employer simply treats some people less

favorably than others because of their race, color, religion, sex, or national

origin." Ibid. (quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82

(1978)).

      "Evidence of pretext sufficient to permit the employee to reach a jury may

be indirect, such as a demonstration 'that similarly situated employees were not

treated equally.'" Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304

(App. Div. 2000) (citation omitted). "An inference of discrimination may arise

if similarly situated employees [but] of a different [protected class] received

more lenient treatment than that afforded plaintiff." Ewell v. NBA Props., 94 F.

Supp. 3d 612, 624 (D.N.J. 2015) (citing Simpson v. Kay Jewelers, 142 F.3d 639,

645 (3rd Cir. 1998)).

      Plaintiff must present comparator evidence sufficient to prove that he or

she is "similarly situated" to his or her comparators, and that these employees


                                                                           A-5576-16T1
                                       20
have been treated differently or favorably by their employer. See Williams v.

Morton, 343 F.3d 212, 221 (3d Cir. 2003); Simpson, 142 F.3d at 645. "An

'inference of discrimination' does not [necessarily] arise 'anytime a single

member of a non-protected group was allegedly treated more favorably than one

member of the protected group, regardless of how many other members of the

non-protected group were treated equally or less favorably.'" Jason, 329 N.J.

Super. at 307 (quoting Simpson, 142 F.3d at 646). There must be proof that the

individuals being compared were similarly situated.

      To determine whether employees are similarly situated, "courts tend to

consider whether the plaintiff and the comparator had similar job

responsibilities, were subject to the same standards, worked for the same

supervisors, and engaged in comparable misconduct." Ewell, 94 F. Supp. 3d at

624. Similarly-situated employees must "have engaged in the same conduct

without such differentiating or mitigating circumstances that would distinguish

their conduct or the employer's treatment of them for it." Mitchell v. Toledo

Hosp., 964 F.2d 577, 583 (6th Cir. 1992). That does "not mean to suggest that

[the listed] aspects of 'similarly situated' status are exhaustive or of equal

significance in different employment contexts. The trial [court must] make a

sensitive appraisal in each case to determine the most relevant criteria." Jason,


                                                                         A-5576-16T1
                                      21
329 N.J. Super. at 305 (first alteration in original) (quoting Peper, 77 N.J. at 85).

"Thus there is no bright-line rule for determining who is a 'similarly situated'

employee." Ibid.

      Applying these guiding principles, we conclude that there was insufficient

evidence of pretext based upon disparate treatment substantially for the reason

stated by Judge Schultz in his careful, sensitive analysis of plaintiff's proofs.

Suffice it to say, as Judge Schultz found, plaintiff's evidence demonstrated that

Hispanic and other minority members of the HPD received less harsh

punishment than plaintiff for violations and many of the violations in those other

matters involved different types of conduct. There was no evidence that a jury

could rely upon to find that plaintiff proved Hoboken's reasons for his

termination were a pretext based upon disparate treatment of non-minority

officers.

                                             V.

      We turn to plaintiff's challenge to Judge Schultz's in limine, May 30, 2017

ruling, and his June 21, 2017 sua sponte ruling relating to testimony elicited

from Alicea that also barred testimony from Zimmer about Zimmer's

involvement in unrelated acts of discrimination as addressed in Alicea's earlier




                                                                             A-5576-16T1
                                        22
lawsuit against Hoboken. According to plaintiff, those rulings prevented him

from offering additional evidence of pretext.

      In its in limine motion seeking to bar testimony about Alicea's prior action

against that was based upon Zimmer's actions, Hoboken explained the

circumstances surrounding Alicea's resignation as Public Safety Director and his

subsequent lawsuit that relied upon claims of discrimination and led to a verdict

against Hoboken in his favor. Hoboken contended that the verdict was not

probative of any discrimination in this case. Moreover, Hoboken contended that

Alicea was not in a comparable position to plaintiff, was not subject to the same

disciplinary process as plaintiff, nor were the circumstances of his adverse

employment action similar to plaintiffs.        Also, according to Hoboken, the

testimony should be barred as unduly prejudicial under Rule 403. Plaintiff

disagreed and contended that because Alicea's case involved an adjudication of

discrimination against "the same decision makers," the testimony should be

admissible as evidence that discriminatory conduct permeated the police

department. The judge ruled that he would not grant the motion but rather would

consider any objections raised during Alicea's testimony.

      Alicea testified at trial and referred to his successful litigation and the

verdict entered against Hoboken, without objection.          He stated that his


                                                                          A-5576-16T1
                                      23
successful claim against Hoboken was based upon Zimmer's discriminatory

practices.

      The next day, prior to Zimmer testifying, the judge stated that his in limine

decision did not allow the introduction of testimony about the verdict in Alicea's

case and that testimony "should never have come in." The judge also noted that

the "operative facts in [plaintiff's] matter pre-dated the verdict in" Alicea's case.

According to the judge, there was no objection to either reference to the verdict

in plaintiff's opening statement or during Alicea's testimony because both

counsel misunderstood his in limine ruling as allowing the testimony to be

admitted. The judge ruled that the jury must be instructed to disregard the

testimony about the verdict. He stated that based on Alicea's references to

Zimmer's conduct in his case and the summary judgment motion judge's order

granting Zimmer's motion in this case, he would instruct the jury that "its already

been determined by a Judge who heard evidence that [Zimmer] played no role

in the decision to terminate" plaintiff. According to the judge, Zimmer's lack of

responsibility in plaintiff's matter was "the law of the case."

      In response to the judge's ruling, plaintiff's counsel conceded that the

testimony about the verdict was improperly admitted and that there was no

controlling law that would have supported its admission. Counsel contended,


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however, that because Zimmer signed the Settlement Agreement relating to

plaintiff's Civil Service appeal, there was evidence that she was directly

involved in plaintiff's termination, unrelated to plaintiff's aiding and abetting

claim that was dismissed on summary judgment. Further, counsel noted that

there was deposition testimony from Zimmer indicating she was "approached by

corporation counsel" about plaintiff. According to counsel, there was "direct

evidence" that Zimmer "was aware of the matter . . . and . . . she actually

participated in the decision to have [plaintiff] removed." Hoboken argued that

the summary judgment motion judge's ruling as to Zimmer was controlling to

the extent that plaintiff sought to demonstrate she was involved with the decision

to terminate plaintiff. Moreover, the Settlement Agreement was not relevant as

it was entered into eighteen months after plaintiff's termination and was clearly

no more than a ministerial act by Zimmer.

      The judge concluded that because Zimmer had nothing to do with

plaintiff's termination, and Alicea was not a comparable victim of

discrimination, he would instruct the jury to disregard any testimony about the

verdict in Alicea's lawsuit and Zimmer's involvement. When the jury returned,

he instructed its members as follows:

            In this case, another Judge after hearing evidence has
            already ruled that Mayor Dawn Zimmer of Hoboken

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            had nothing to do with the decision to terminate the
            plaintiff. She had nothing to do with that. Another
            Judge has ruled that and that is something that you must
            accept in this case. I'm also instructing you that the
            testimony you heard from Mr. Alicea about his lawsuit
            against Mayor Zimmer or . . . the City of Hoboken, that
            that testimony about what happened with that lawsuit
            and the verdict is to be totally disregarded by you. It
            plays no role in this case. Every now and then you may
            be told to forget something that you heard and not
            consider it. So, I'm instructing you that the testimony
            you heard from him about his lawsuit and the result of
            that lawsuit you must disregard. It cannot enter into
            your consideration at all and as of now you must
            disregard it.

      On appeal, plaintiff contends that Judge Schultz misapplied the law of the

case doctrine when he prevented plaintiff "from introducing relevant evidence

that . . . Zimmer was involved in both . . . Alicea's termination as well as that of

[plaintiff]." According to plaintiff, if plaintiff never brought the aiding and

abetting claim that was decided on summary judgment, Alicea's testimony

would have been admitted, and the fact that that claim was dismissed should not

have barred the testimony. As to Zimmer's testimony, plaintiff argues the judge

erroneously prevented the admission of evidence that Zimmer was involved in

plaintiff's termination because by administrative directive she was personally

involved in all employment decisions and Zimmer signed the settlement

agreement. We disagree. We conclude Judge Schultz properly barred evidence


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of Zimmer's involvement in Alicea's matter or plaintiff's termination as he

correctly concluded that such evidence was not relevant to plaintiff's claim and

was barred by the law of the case doctrine.

      The law of the case doctrine states that "a legal decision made in a

particular matter 'should be respected by all other lower or equal courts during

the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (citing

Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). It is a "non-binding rule

intended to 'prevent re-litigation of a previously resolved issue.'" Ibid. (citing

In re Estate of Stockdale, 196 N.J. 275, 311 (2008)).        Although "an order

denying summary judgment is not subject to the law of the case doctrine,"

Gonzales v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div.

2004), here, the summary judgment motion judge granted the motion after he

determined on the merits that Zimmer was not involved with plaintiff's

termination.

      We therefore conclude Judge Schultz did not err by sua sponte issuing a

curative instruction or barring plaintiff from eliciting testimony from Zimmer

about her role, if any, in the Alicea matter. Plaintiff presented no evidence that

Zimmer was involved in plaintiff's termination and allowing any testimony

about the Alicea lawsuit would have been not only contrary to the law of the


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case, but also unduly prejudicial under Rule 403 and in violation of Rule 404(b)

that addresses prior "bad acts," as there was no evidence that Zimmer was

engaged in any conduct, similar to that proven in Alicea's lawsuit or otherwise,

relating to plaintiff's termination.

                                            VI.

      Finally, to the extent we have not specifically addressed any of plaintiff's

remaining arguments, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:3-11(e)(1)(E).

      Affirmed.




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