1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Hampton v. Borough of Tinton Falls Pol. Dept." (1996). 1996 Decisions. Paper 56.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/56
 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 decisionmaking 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 nonmoving 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, nondiscriminatory 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.