                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-1996

Hampton v. Borough of Tinton Falls Pol. Dept.
Precedential or Non-Precedential:

Docket 95-5762




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                              No. 95-5762



                   PRESTON HAMPTON; CARL BOWLES
                                        Appellants
                                v.

   BOROUGH OF TINTON FALLS POLICE DEPARTMENT; ANN Y. McNAMARA,
MAYOR, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW; RICHARD
BRANDSTETTER, COUNCILMAN, INDIVIDUALLY AND ACTING UNDER COLOR OF
STATE LAW; ROBERT GAGLIANO, COUNCILMAN, INDIVIDUALLY AND ACTING
UNDER COLOR OF STATE LAW; RICHARD MAHER, COUNCILMAN, INDIVIDUALLY
AND ACTING UNDER COLOR OF STATE LAW; LYNN ROBINSON, COUNCILWOMAN,
INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW; GABE TORNILLO,
COUNCILMAN, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW, AND
IN HIS CAPACITY AS A MEMBER OF THE PROMOTIONAL REVIEW BOARD;
ANTHONY MUSCILLO, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE
LAW IN HIS CAPACITY AS BOROUGH ADMINISTRATOR, PUBLIC SAFETY
DIRECTOR AND MEMBER OF THE PROMOTIONAL REVIEW BOARD AND ORAL
INTERVIEW BOARD; LADEAN WHITE, INDIVIDUALLY AND ACTING UNDER
COLOR OF STATE LAW, AND IN HIS CAPACITY AS CAPTAIN OF POLICE AND
MEMBER OF THE PROMOTIONAL REVIEW BOARD; PASQUALE MENNA,
INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW IN HIS CAPACITY
AS BOROUGH PROSECUTOR AND MEMBER OF THE PROMOTIONAL REVIEW BOARD;
LOU NAPOLITANO, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW
IN HIS CAPACITY AS MEMBER OF THE ORAL REVIEW BOARD; JOSEPH
TORCHIA, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW AS A
MEMBER OF THE ORAL REVIEW BOARD; JOHN DOES, (1-100); JANE DOES,
(1-100); DAVID GONZALEZ



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW JERSEY
                      (D.C. No. 95-cv-01828)



                       Argued: August 6, 1996

        Before:   NYGAARD, LEWIS and McKEE, Circuit Judges

                     (Filed   October 18, 1996)
GREGORY S. SCHAER, ESQUIRE
LINDA B. KENNEY, ESQUIRE (ARGUED)
Law Offices of Linda B. Kenney
The Galleria, Two Bridge Avenue
Building No. 5, Second Floor
Red Bank, New Jersey 07701

     Attorneys for Appellants

ROBERT T. CLARKE, ESQUIRE (ARGUED)
SHARON P. MARGELLO, ESQUIRE
Apruzzese, McDermott, Mastro & Murphy, P.C.
25 Independence Blvd.
Post Office Box 112
Liberty Corner, New Jersey 07938

     Attorney for Appellees




                       OPINION OF THE COURT


McKEE, Circuit Judge.
      Preston Hampton and Carl Bowles appeal from the district
court's grant of summary judgment in favor of all defendants on
all claims that plaintiffs brought against the Borough of Tinton
Falls New Jersey, the Tinton Falls Police Department and numerous
governing officials of that borough. Hampton, who is Black, is a
Detective Sergeant with the Tinton Falls Police Department;
Bowles, who is also Black, is a former Borough employee and a
named plaintiff by virtue of his status as a resident in the
borough. Plaintiffs allege illegal discrimination in connection
with the borough's decision not to promote Hampton from sergeant
to lieutenant. We hold that the district court properly granted
summary judgment on plaintiff's "disparate-impact" claim, but
that the district court erred in granting summary judgment on
plaintiffs' other claims. Accordingly, we will affirm in part,
and reverse in part, and remand the case for further proceedings.

                                I.
     In October of 1994, the Tinton Falls Police Department
announced two openings for promotion to the rank of lieutenant.
Hampton was one of four candidates to apply for the positions,
and was the only Black candidate. The three other candidates
were Sergeant Peterson and Sergeant Turning, both of whom are
White, and Sergeant Gonzalez, who is Latino. In order to be
promoted, a candidate had to first pass a multiple choice exam,
then compete before a Promotional Review Board ("PRB"), and an
Oral Review Board ("ORB"). Although the actual score of the
"objective" multiple choice exam was not factored into the
process, an applicant could not be promoted without receiving a
passing grade on that exam. The Review Board evaluations were
subjective.
     The multiple choice exam was administered in January of 1995
by Iowa Testing Service. All four of the candidates passed the
test and were then reviewed by the PRB and ORB.   Initially, the
PRB was comprised of Borough Administrator and Public Safety
Director Anthony Muscillo, Major Melvin McKeller, Borough
Prosecutor Pat Menna and Borough Council member Gabe Tornillo.
McKeller, who is Black, subsequently announced his retirement and
declined to serve on the Promotional Review Board, and Captain
(now Major) LaDean White was appointed to replace McKeller. App.
at 703-04. Captain White was the immediate supervisor for
candidates Turning, Gonzalez and Peterson. Sergeant Hampton was
part of the Detectives Bureau and reported to Captain Robert
Jantausch. After White replaced McKellar, neither the PRB nor the
ORB had any minority members. App. at 704.
     The PRB met in February of 1995 to review the candidates.
The Board evaluated the applicants' records and performance using
ten factors, each of which was worth ten percent of a candidate's
evaluation. The categories for evaluation included:
     (1) leadership ability
     (2) communication skills
     (3) decision making ability
     (4) working with others
     (5) personal commitment
     (6) problem analysis
     (7) adherence to rules
     (8) education and self-improvement
     (9) length and merit of service
     (10) overall fitness for the position
     Each Board member had access to the candidate's resume,
performance evaluations for the three prior evaluation periods,
and the candidate's personnel file. The Board members reviewed
those records and also discussed their impressions of the
candidates based upon personal experiences. The PRB gave Turning
a score of 93.875, Gonzalez a score of 90.5, Peterson a score of
77.875, and Hampton a score of 77.625.
     The candidates also met with the ORB which consisted of
Anthony Muscillo, Joseph Torchia and Louis Napolitano. Muscillo,
as stated above, is the Borough Administrator. Torchia and
Napolitano are both Public Safety Directors from neighboring
municipalities. The ORB evaluated each of the candidates'
responses to the same series of questions involving everyday
police activities. The candidates were judged on their decision-
making ability, analytical ability, communication skills,
judgment and creativity. Turning received the highest score from
each of the Board members, and the highest average score of
94.83. Gonzalez received the second highest score from each of
the Board members and had the second highest overall score of
87.93. Peterson had an average score of 82.16 and Hampton had an
average score of 76.10.
     The scores from the PRB and the ORB were then averaged with
each score weighted equally. Turning and Gonzalez were promoted
to the rank of lieutenant, and Hampton filed a complaint with the
EEOC claiming that he was not promoted because of his race. The
complaint was filed at the EEOC office in Newark on April 12,
1995, but it was erroneously dated April 13, 1995. This error
caused problems because when the Borough's Personnel
Administrator (Helen Auringer) saw the incorrect EEOC filing
date, she noted that Hampton had been on duty all day on April
13, 1995, and should not have been in Newark visiting the EEOC.
As a result, an internal investigation was initiated and on May
2, 1995, Hampton was notified that he was under disciplinary
investigation for "[g]oing to Newark on duty time to file a
complaint with [the] EEOC" and "[u]sing a department vehicle to
travel to Newark for personal business without authorization."
App. at 281. The Borough maintains that it soon discovered the
typographical error and ended the investigation without any
adverse consequences to Hampton. However, it is alleged that on
August 28, 1995, without any explanation, Major White told
Hampton that he (Hampton) was being removed from the detective
bureau and reassigned to road patrol. Brief for Appellants at 12.
Hampton claims that he continues on road patrol even though White
told him that the reassignment would be temporary. Id.
                                II .
     Hampton asserts several theories of recovery. Counts One to
Five allege that 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. Count Six is an "Action in Lieu of
Prerogative Writ" alleging that defendants were arbitrary,
capricious and unreasonable in violation of N.J.S.A. § 40A:14-
129. Count Seven alleges a breach of contract claim based upon
the Police Department's alleged failure to comply with the
Borough's affirmative action policy that we need not discuss.
Counts Eight to Ten allege that Hampton's 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 Hampton's free speech
rights pursuant to 42 U.S.C. § 1983.
     Defendants moved for summary judgment as to the entire
complaint, arguing that plaintiffs failed to set forth a genuine
issue of material fact that would establish racial discrimination
or allow an inference of racial animus. In response, plaintiffs
argued that racial pretext or direct discrimination was apparent
from the evidence and that therefore, summary judgment in favor
of the defendants would be inappropriate. Additionally,
plaintiffs filed a cross-motion for summary judgment as to Count
Six of their complaint, arguing that the defendants violated
N.J.S.A. § 40A:14-129 by failing to give due consideration to the
length and merit of service criterion in the promotion process.
     The district court granted summary judgment for the
defendants as to all counts of plaintiffs' complaint, and this
appeal followed.
                               III.
     The district court's grant of summary judgment is a final
order that disposed of all claims, and this court therefore has
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our
review of the district court's summary judgment order is plenary,
and we apply the same test as the district court. Sempier v.
Johnson & Higgins, 45 F.3d 724, 727 (1995); Chipollini v. Spencer
Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert.
dismissed, 483 U.S. 1052 (1987). Summary judgment is appropriate
when the moving party is entitled to judgment as a matter of law
and there is no genuine dispute of material fact. Gottshall v.
Consolidated Rail Corp., 56 F.3d 530, 533 (3d Cir. 1995) (citing
Fed. R. Civ. P. 56(c)). In order to defeat "a properly supported
summary judgment motion, the party opposing it must present
sufficient evidence for a reasonable jury to find in its favor."
Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52
(1986)). In essence, the non-moving party must demonstrate a
dispute over facts that might affect the outcome of the suit.
Id. Moreover, in reviewing the record, we must give the non-
moving party the benefit of all reasonable inferences. Josey v.
John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993).

                               IV.
     Plaintiffs' discrimination claims are based upon both
disparate treatment and disparate impact theories of
discrimination.

               "`Disparate treatment' . . . is the most
          easily understood type of discrimination.
          The employer simply treats some people less
          favorably than others because of their race,
          color, religion [or other protected
          characteristics.] Proof of discriminatory
          motive is critical, although it can in some
          situations be inferred from the mere fact of
          differences in treatment. . . .

               "[C]laims that stress `disparate impact'
          [by contrast] involve employment practices
          that are facially neutral in their treatment
          of different groups but that in fact fall
          more harshly on one group than another and
          cannot be justified by business necessity.
          Proof of discriminatory motive . . . is not
          required under a disparate treatment theory."
          Teamsters v. United States, 431 U.S. 324, 355
          n.15 (1977) (citation omitted).
Hazen Paper Co. v. Biggins,    U.S.   , 113 S. Ct. 1701, 1705-06,
123 L. Ed. 2d 338, 346 (1993). The district court adequately
explained why plaintiffs' disparate impact theory could not
survive defendant's motion for summary judgment, and we affirm
that part of the district court's decision for the reasons set
forth by the district court. See Dist. Ct. Op., App. at 15-17.

                                A.
     Disparate Treatment Claim
     Plaintiffs' disparate treatment claim is based upon
"pretext." Brief for Appellants at 14-15.    As this court
explained in Waldron v. SL Industries, Inc., 56 F.3d 491 (3d Cir.
1995), the burden-shifting analysis established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and more recently
refined in St. Mary's Honor Center v. Hicks,     U.S.  , 113 S.
Ct. 2742 125 L. Ed. 2d 407 (1993), is the appropriate analysis
for summary judgment motions in cases alleging violations of
Title VII, 42 U.S.C. § 1981, and the New Jersey Law Against
Discrimination. Waldron, 56 F.3d at 494, 504.
          Under the familiar shifting burdens analysis
          of McDonnell Douglas, a plaintiff must
          initially establish a minimal prima facie
          case -- essentially, that he or she is a
          member of a protected class and was qualified
          for an employment position, but that he or
          she was either not hired for that position or
          was fired from it "under circumstances that
          give rise to an inference of unlawful
          discrimination." Texas Dept. of Community
          Affairs v. Burdine, 450 U.S. 248, 253 (1981).
          Once the plaintiff establishes his or her
          prima facie case, the burden shifts to the
          defendant to articulate one or more
          legitimate, non-discriminatory reasons for
          its employment decision. If one or more such
          reasons are proffered, the presumption of
          discrimination created by establishment of
          the prima facie case is dispelled, and the
          plaintiff must prove that the employer's
          proffered reason or reasons were pretextual -
          - that is, that they are false and that the
          real reason for the employment decision was
          discriminatory.
Id. at 494 (footnote omitted). However, we also noted that:
          [b]ecause the factfinder may infer from the
          combination of the plaintiff's prima facie
          case and its own rejection of the employer's
          proffered non-discriminatory reasons that the
          employer unlawfully discriminated against the
          plaintiff and was merely trying to conceal
          its illegal act with articulated reasons, seeHicks,     U.S. at
the 113 S. Ct. at 2749, a
          plaintiff who has made out a prima facie case
          may defeat a motion for summary judgment by
          either (i) discrediting the proffered
          reasons, either circumstantially or directly,
          or (ii) adducing evidence, whether
          circumstantial or direct, that discrimination
          was more likely than not a motivating or
          determinative cause of the adverse employment
          action.
Id. at 495 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994)).
     Here, the district court and the defendants assumed that a
prima facie case had been established for purposes of ruling upon
the defendants' summary judgment motion. App. at 19. Thus, the
burden shifted to the defendants to proffer a legitimate, non-
discriminatory reason for failing to promote Hampton. Defendants
met that burden by attempting to demonstrate that each of the
candidates was evaluated by the same criteria, and that Turning
and Gonzalez were promoted because they had received the highest
score in the PRB and ORB evaluations, and were therefore the most
qualified. Id. at 19-20. The district court accepted
defendants' explanations, and further concluded that Hampton did
not satisfy his burden of either demonstrating that defendants'
proffered reasons were pretextual or presenting other evidence
from which a factfinder could reasonably conclude that
discrimination factored into the decision to promote Turning and
Gonzalez instead of him. Id. at 12. We disagree.
     The district court either ignored several discrepancies in
the evaluation process, or failed to give all reasonable
inferences arising there from the plaintiffs as it was required
to do in ruling upon a motion for summary judgment. These
discrepancies and inferences could support (though they certainly
do not compel) a jury finding that race was a motivating factor
in the decision not to promote Hampton. When Hampton's
performance evaluations were considered by the PRB, less (if any)
consideration was given to the recommendation that Major McKeller
gave him. Yet, McKeller was Hampton's supervisor at the time of
the promotion review. Major White explained the decision to
minimize the importance of McKellar's evaluation as follows:
          A:   It may have been discussed. I don't know
               if it was considered only because of the
               evaluator.

          Q:    And "only because of the evaluator,"
                what do you mean by that?

          A:    Mel McKeller evaluated him at that time.

          Q:    Why would that be a concern?

          A:    Because he was in charge of the
                detective bureau at that time and
                presently was at that time of the
                promotional procedure the commanding
                officer of the department and he's also
                black.

          Q:    Why would him being black have any type
                of effect on whether you would consider
                this particular performance evaluation?

          AA:  If there was any doubt of whether or not
               the evaluations previous were being
               considered to be inaccurate. It shows
               continuity.
App. at 245 (emphasis).
     Major White further explained that McKeller's evaluations
may not have been considered because the evaluators knew that
McKeller was "pushing Preston Hampton for a promotion at that
time." App. at 245. Defendants argue that the evaluators
reasonably assumed that McKeller's evaluation was improper
because McKeller wanted Hampton to be promoted. In reviewing
this testimony the district court explained:
          Hampton had been evaluated by Jantausch, who
          was not on the committee. Consideration of
          McKeller's evaluation, therefore, allowed the
          board to determine whether Jantaush's
          evaluations of Hampton, which were average,
          were consistent with Hampton's performance.
          The board concluded that McKeller's
          evaluation and Jantausch's evaluation were
          consistent with each other.
               I find this explanation reasonable.

Dist Ct. Op. at 15-6 (underlining added).
     The district court, therefore, found the proffered
explanation both credible and "reasonable." In doing so, it
clearly usurped the role of the jury. It does not appear that
the race of any other evaluator was a source of concern for
anyone involved in deciding who was to be promoted. It was for a
jury, not a judge, to determine if White's neutral explanation of
the concern for McKellar's race was credible and reasonable.
Incredibly, (and perhaps disingenuously) defendants now argue
that Major White's testimony would not provide evidence from
which a jury could infer racial animus. We disagree.
     Defendants maintain that they were not required to consider
McKeller's evaluations in any event because police promotional
procedure only requires the PRB to consider each candidate's
"last three performance evaluations," app. at 284, and McKeller's
evaluation was outside of that range. However, the police
promotional procedure also states that the PRB would consider
each candidate's evaluation "for the last three years." Id. For
those candidates who were only evaluated annually, the two
standards result in consideration of the same number of
evaluations -- three. However, for candidates such as Hampton,
who were evaluated bi-annually, these two policies conflict. An
employee who is evaluated annually would have three evaluations
under either policy, but Hampton would have six evaluations.
McKeller's evaluation, though not one of Hampton's prior three
evaluations, was an evaluation that had been completed within the
prior three years. It was for a fact finder to determine what,
if any, significance the Board's decision to look only to
Hampton's last three evaluations had. A jury could conclude that
the Board did so pursuant to its policy of looking to the last
three evaluations, or it could conclude that the totality of the
circumstances here suggest that racial considerations motivated
the Board to ignore whatever evaluation McKellar gave knowing
that the conflict in personnel policy would explain its actions.
     Plaintiffs also argue that Hampton's scores in the category
of "Education and Self-Improvement" reflect a discrepancy that
could give rise to a jury inference of discrimination. In this
category, Gabe Tornillo gave Hampton a score of "5," app. at 346,
even though Hampton has an associates degree and credits from a
state college. App. at 371. By contrast, Tornillo gave Gonzalez
a "10" in this category, app. at 344, although he had yet to
complete the requirements for the degree he was pursuing. App. at
379. Defendants justify this by asserting that the scoring
discrepancy merely reflects that Gonzalez was working toward his
degree, and thus demonstrating a desire for self-improvement
while he was on the police force. Hampton, defendants argue, had
already completed his degree prior to becoming a police officer,
and did not take additional courses during his tenure with the
police department.
     Similarly, Tornillo gave Hampton (who had 18 years of
service on the police force and no demerits in his personnel
file) a "6" in the category "Length and Merit of Service."
However, other candidates with less time received ratings between
"8" and "10" in this category. App. at 343-46. The district
court correctly ruled that under N.J.S.A. § 40A:14-129 length of
service alone would not guarantee Hampton the promotion. SeeGaskill v.
Mayor and Comm'rs of Avalon, 373 A.2d 1019, 1020 (N.J.
Super. 1977) ("In our opinion this statutory preference to those
who enjoy seniority in service is applicable where two or more
candidates have approximately equal qualifications. It is but an
additional factor to be considered on the merits of the
evaluation of the individuals for promotion and not a mechanical
rule which guarantees promotion to the senior employee.").
     The significance of such evidence is for a jury's
determination, not a court's. Had these discrepancies been
presented to a jury, it may have found defendants' explanations
quite credible, and returned a verdict in their favor. However,
that is not the test that we employ, nor is it the test the
district court should have employed. Drawing all reasonable
inferences in favor of plaintiffs, as we must, it is clear that
they were entitled to have a jury decide whether or not the
reasons proffered for not promoting Hampton were real or
pretextual.
     Defendants also urge us to affirm the district court
because, according to Turning's affidavit, when Hampton told his
colleagues he was going to file suit he stated that "he did not
think that there was a racial motive to the Borough's actions,
but rather he was using this method to get in the door." Supp.
App. at 6. Plaintiffs counter that, assuming Hampton made such a
statement, it was made to the successful applicant before Hampton
became aware of evidence of discrimination. They claim that, once
he became aware of this information, consulted with his attorney
and actually filed suit, there could have been a number of
reasons motivating Hampton's decision to sue, including a desire
to gain access to his test scores and a belief that a discrepancy
in certain scores was motivated by racial bias. Further, during
his deposition when Hampton was asked whether he thought certain
low scores he received from the interviewees were racially
motivated, he responded that he did not know what the motivations
for the scores were or what bases were used to determine those
scores. App. at 198.
     We decline to preclude Hampton from proceeding with this
suit based upon a statement alleged to have been made before
Hampton actually filed suit. At trial, a jury may conclude that
these remarks present an insurmountable obstacle to plaintiff's
recovery, but that is neither for us, nor the district court to
determine at this time.
     The district court stated that it found "at best, complaints
of errors or omissions on the part of the board." Dist Ct. Op.
at 24. However, the district court erred in not recognizing that
the reasonable inferences that arise from these "errors and
omissions" can create a jury question. The errors and omissions
can not be dismissed as immaterial as a matter of law. Thus, we
must reverse the district court's grant of summary judgment on
plaintiff's "pretext" claim.
     B. Retaliation Claim
     Hampton alleges that his rights were violated when
defendants retaliated against him by initiating an internal
affairs investigation to determine whether or not he traveled to
Newark to file an EEOC complaint while he was on duty, and
subsequently, by removing him from the detective bureau and
reassigning him to road patrol without explanation. Hampton
claims that this conduct was retaliation in violation of Title
VII, the New Jersey Law Against Discrimination, and his free
speech rights.
     The district court accepted defendants' assertion that the
investigation arose out of a typographical error in plaintiffs'
Verified Complaint. Defendants do not deny that when Borough
Administrator, Helen Auringer, read the Verified Complaint
without knowing the date was incorrect, Hampton was investigated.
However, defendants maintain that when it became apparent that
plaintiffs' complaint contained a typographical error, the
investigation was closed. The district court thus concluded that
no adverse action had been taken against Hampton as a result of
the EEOC complaint, and that he therefore failed to establish a
prima facie case of retaliation.
     However, the district court did not go far enough. Although
the investigation was dropped, Hampton's involuntary transfer
remained. App. at 91. Hampton maintains that on August 28,
1995, he was suddenly told by Major White that he was being
removed from the detective bureau and reassigned to road patrol.
Hampton deems this to be a demotion. No explanation for the
transfer was given, and although the transfer was to have been
"temporary," the record reflects that it remains in effect.
Hampton further claims that when he inquired about the reason for
his transfer, Major White told him; "[d]on't worry, if you win
this suit, nothing is going to happen anyway." Brief for
Appellants at 12.
     Defendants argue that Hampton's transfer was merely a
reassignment and not a demotion, as neither Hampton's rank, nor
his pay have been decreased. Defendants' further argue that the
reassignment was part of a routine rotation schedule that
requires officers to rotate from one department to another every
three to five years. Although the rotation may not be a
demotion, it came on the heels of his EEOC filing, and plaintiffs
argue that the road patrol assignment is less desirable than that
of detective bureau. Moreover, Hampton remains in his new
assignment even though it was supposed to have been temporary.
The significance of these facts should be resolved by jury
deliberations, not motions for summary judgment. Accordingly, we
will reverse the district court's grant of summary judgment on
plaintiff's claim of retaliation.
                     C.N.J.S.A. § 40a:14-129
     As noted above, Count Seven of the Complaint alleges that
defendants violated N.J.S.A. § 40a:14-129 by failing to give
adequate consideration to his length and merit of service. As
the district court properly noted, that statute does not require
that a promotion be governed solely by seniority. Dist. Ct. Op.
at 18. (citing Gaskill v. Mayor & Comm'rs of Avalon, 149 N.J.S.
364 (App. Div. 1977). Nevertheless, we are not prepared to hold,
as a matter of law, that a jury could not conclude that this
statute was not violated even if it concludes that Hampton's race
was a factor in the defendants' failure to promote him. Although
we agree that it appears unlikely plaintiffs can prevail on this
claim, if they can prove that, but for Hampton's race, his
greater seniority would have earned him the promotion he sought,
he may be able to establish a violation of the statute. Thus, we
will reverse the district court's entry of summary judgment as to
Count Seven of the Complaint as well.

                         IV. CONCLUSION
     For the reasons stated in the foregoing, we will vacate the
order of the district court dated October 18, 1995, and remand
the matter for further proceedings consistent with this opinion.
