                        NOT FOR PUBLICATION WITHOUT THE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

                                     2                              A-2939-15T4
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.

                                      3                                A-2939-15T4
     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


                                    4                               A-2939-15T4
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

                                      5                              A-2939-15T4
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

                                        6                             A-2939-15T4
            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


                                   7                              A-2939-15T4
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

                                         8                                 A-2939-15T4
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.



                                    9                                A-2939-15T4
    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.




                               10                             A-2939-15T4
