Hampton v. Borough of Tinton Falls Police Department

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Precedential or Non-Precedential: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.