98 F.

3d 107

72 Fair Empl.Prac.Cas. (BNA) 101,

69 Empl. Prac. Dec. P 44,422
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.
No. 95-5762.

United States Court of Appeals,

Third Circuit.

Argued Aug. 6, 1996.

Decided Oct. 18, 1996.

Gregory S. Schaer, Linda B. Kenney (argued), Law Offices of Linda B.

Kenney, Red Bank, NJ, for Appellants.
Robert T. Clarke (argued), Sharon P. Margello, Apruzzese, McDermott,
Mastro & Murphy, P.C., Liberty Corner, NJ, for Appellees.
Before NYGAARD, LEWIS and McKEE, Circuit Judges.
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.1
Accordingly, we will affirm in part, and reverse in part, and remand the case
for further proceedings.

I.
2

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.
3

The multiple choice exam was administered in January of 1995 by Iowa

Testing Service. All four of the candidates passed the test2 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,3 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 McKeller, 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:

5(1) leadership ability

6(2) communication skills
7(3) decision making ability
8(4) working with others
9(5) personal commitment
(6) problem analysis
10
(7) adherence to rules
11
(8) education and self-improvement
12
(9) length and merit of service
13
(10) overall fitness for the position
14
15

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.
16

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.

17

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, 1995,4 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.
18

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 discuss5 .
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.
19

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 crossmotion 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.

20

The district court granted summary judgment for the defendants as to all counts
of plaintiffs' complaint, and this appeal followed.

III.
21

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, 108 S.Ct. 26, 97
L.Ed.2d 815 (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, 106 S.Ct. 2505, 2511-12, 91
L.Ed.2d 202 (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.
22

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

23

" '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....

24

"[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, 335 n.
15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (citation omitted).

25

Hazen Paper Co. v. Biggins, 507 U.S. 604, 608-11, 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

26

Plaintiffs' disparate treatment claim is based upon "pretext."6 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, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973), and more recently refined in St. Mary's Honor Center v. Hicks, 509
U.S. 502, 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
27

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, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (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.
28

Id. at 494 (footnote omitted). However, we also noted that:

29
[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, see Hicks, 509 U.S. at 51011, 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.
30

Id. at 495 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994)).

31

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.

32

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:

33

A: It may have been discussed. I don't know if it was considered only because
of the evaluator.

34

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

35

A: Mel McKeller evaluated him at that time.

36

Q: Why would that be a concern?

37

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.

38

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

39

A: If there was any doubt of whether or not the evaluations previous were being
considered to be inaccurate. It shows continuity.

40

App. at 245 (emphasis).

41

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.
42

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.
43
44

Dist Ct. Op. at 15-6 (underlining added).

45

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.

46

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.

47

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.
48

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.7 See Gaskill v. Mayor and Comm'rs of
Avalon, 149 N.J.Super. 364, 373 A.2d 1019, 1020 (App.Div.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.").

49

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.

50

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.
51

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.

52

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

53

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.

54

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.

55

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.
56

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

57

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.Super. 364, 373 A.2d
1019 (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.

V. CONCLUSION
58

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.

The claims that were dismissed include the breach of contract claim which

The claims that were dismissed include the breach of contract claim which
appears to be rooted in an alleged violation of an affirmative action policy. The
district court did not specifically discuss this claim in its opinion, nor has it
been discussed in the briefs or argument before us. Accordingly, we do not
discuss that claim as it has been abandoned

Hampton received the second highest score on the written exam. App. at 103

Sergeant Hampton, Major McKeller and Patrolperson Susan Michling were the
only Blacks serving as officers in the Department at that time

The record before us does not reveal the outcome of the EEOC complaint

See n. 1, supra

Although plaintiffs originally relied upon a "pretext" theory as well as a "mixed

motive" theory, the district court correctly observed that plaintiffs were, in
reality, arguing pretext. We thus limit our discussion to the sufficiency of
plaintiffs' claim of defendants' pretext in not promoting Hampton

In relevant part, N.J.S.A. 40A:14-129 provides:

In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is
not in effect, and except in cities of the first and second class, a promotion of
any member or officer of the police department or force to a superior position
shall be made from the membership of such department or force. Due
consideration shall be given to the member or officer so proposed for the
promotion, to the length and merit of his service and preference shall be given
according to seniority of service.
(emphasis added).