LUIGI PERCONTINO VS. CITY OF HOBOKEN(L-1442-15, HUDSON COUNTY AND STATEWIDE, AND L-6173-15,ESSEX COUNTY AND STATEWIDE), A-2939-15T4

Background

Percontino, a deputy municipal court administrator in Hoboken, sued the City alleging (1) NJCRA violation for denial of a hearing on two disciplinary charges and (2) gender discrimination under the LAD after a less-qualified woman was made acting and then permanent municipal court administrator.
The City answered that Percontino, represented by counsel, waived hearings and pleaded guilty/settled the disciplinary charges; it admitted interviewing and appointing the female candidate but did not say Percontino was considered or applied.
The trial court dismissed the NJCRA count with prejudice (holding NJCRA covers only substantive due process), and dismissed the LAD count without prejudice for failure to plead that Percontino applied for the position or explain why he did not.
Percontino sought to amend to replead the LAD claim (alleging Hoboken deliberately withheld notice of the acting opening so he did not apply) and to add state and § 1983 due-process claims; the court denied amendment, citing settlement and perceived law-of-the-case about needing to apply for the job.
On appeal, the Appellate Division affirmed dismissal of the NJCRA claim and denial of amendment on due-process grounds (settlement/waiver/exhaustion), but reversed and remanded the LAD acting-position claim as adequately pleaded because an employer’s secret selection without giving employees an opportunity to apply can state a prima facie discrimination claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the NJCRA provides a remedy for alleged denial of procedural due process	NJCRA covers deprivation of civil rights including denial of hearing	NJCRA limited to substantive due process; procedural claims not covered	NJCRA does not apply to procedural due process; dismissal affirmed
Whether Percontino stated a prima facie LAD claim for the acting administrator position without alleging he applied	Percontino alleged Hoboken concealed the opening and would have applied if aware	City argued he did not apply and plaintiff must plead application or explain why not	Reversed as to acting position: pleading that employer hid the vacancy suffices to state an LAD claim; remanded
Whether amendment to add § 1983 and state constitutional due-process claims was permissible given alleged settlement/plea	Amendment would cure pleading defects and assert constitutional claims	City contended the disciplinary charges were settled/pleaded guilty so due-process claims are barred (waiver/exhaustion)	Affirmed denial of amendment on due-process claims because record suggests plaintiff pleaded guilty/settled and failed to plead facts to avoid waiver/exhaustion; summary-judgment-type evidence needed to reopen
Whether plaintiff stated a claim as to the permanent administrator appointment	Plaintiff reasserted discrimination for both acting and permanent appointments	City noted permanent position was posted and plaintiff did not apply	Court affirmed dismissal as to the permanent position; plaintiff did not adequately plead a claim for that appointment

Key Cases Cited

Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103 (App. Div.) (standard for dismissal under Rule 4:6-2)
Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 (pleading standards; indulgent view of complaints)
Major Tours, Inc. v. Colorel, 799 F. Supp. 2d 376 (D.N.J.) (NJCRA limited to substantive due process)
Viscik v. Fowler Equip. Co., 173 N.J. 1 (prima facie discrimination elements are flexible)
EEOC v. Metal Service Co., 892 F.2d 341 (employer selection without open application can support discrimination claim)
Box v. A & P Tea Co., 772 F.2d 1372 (same; failure-to-apply not fatal where employer denied opportunity to apply)
Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432 (employment discrimination context)
Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527 U.S. 627 (doctrine discussing available remedies and waiver/exhaustion)