Jacqueline Smith v. Township of East Greenwich

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 07-4508
_______________
JACQUELINE SMITH
Appellant
v.
TOWNSHIP OF EAST GREENWICH, et al.
Appellee
__________
On Appeal from Order entered in the United States District Court
for the District of New Jersey, Camden
at No. 05-CV-4219
(Honorable Joseph E. Irenas, District Judge)
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 5, 2009
Before: FUENTES and FISHER, Circuit Judges
and DITTER*, District Judge.
(Filed: September 8, 2009)
OPINION OF THE COURT
*Honorable J. William Ditter, Jr., District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.

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DITTER, District Judge.
Appellant, Jacqueline Smith, a sergeant on the East Greenwich Police Department,
brings this appeal from a decision of the District Court granting summary judgment in
favor of the appellees, the Township of East Greenwich, the East Greenwich Police
Department, Police Chief William E. Giordano, and Deputy Chief Scott A. Goess, on all
counts raised in Smith’s complaint. We will affirm the thorough and well-reasoned
decision of the District Court.
I. Factual and Procedural Background
Jacqueline Smith has been a police officer with the Township of East Greenwich
since August 1988. During her tenure, Smith has been the only female officer employed
by the township.
In 1994, William Giordano was appointed chief of police. Thereafter, a lieutenant
position became available in the department. Chief Giordano amended the position
criteria to include the requirement that applicants for the position must have three years of
supervisory experience. Smith was ineligible because she did not have this experience.
Goess, who was then a patrolman and was the only applicant, was promoted to lieutenant.
Smith did not challenge this promotion.
In 1996, Chief Giordano implemented a new promotional procedure for the position
of sergeant by specifying certain evaluative criteria and assigning each category a weight.
The criteria were as follows: psychological assessment (15%); written examination (20%);

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oral examination (20%); personnel file and profile (20%); seniority (5%); recommendation
of the Chief (10%); and Township Committee interview (10%). Smith and four other
officers applied for the promotion. Smith received the highest overall score and was
recommended by Chief Giordano for the promotion. In his letter of recommendation,
Chief Giordano expressed his confidence in Smith’s abilities and noted that her integrity,
loyalty, and dedication to duty were exemplary. Smith was promoted to sergeant on
January 14, 1997.
In 1999, Smith had a child. When Smith returned to work from maternity leave,
she was permitted to switch shifts with another sergeant to accommodate the needs of her
new family. Smith thanked Chief Giordano for his approval of this shift change and
commented on the department’s progressiveness and sensitivity to family issues.
In December 1999, Smith became the subject of an internal affairs investigation.
Lieutenant Goess conducted the investigation and recommended disciplinary action be
taken against Smith. On December 9, 1999, an informal hearing was held and Smith was
found guilty of four charges of falsifying reports, one charge of improper shift relief, and
one charge of failing to properly supervise a probationary employee. Chief Giordano
offered Smith a one-day suspension and a one-day loss of time as the discipline. Smith
opted to pursue her right to a hearing before the East Greenwich Township Committee.
Hearings were held before the township committee over a period of time from July 2000
through October 2000. The township committee found Smith guilty of all charges and

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suspended her for seven days on each of the four falsifying patrol reports charges, one day
for leaving a shift early, and one day for improper supervision of a probationary officer.
The suspensions were imposed concurrently.
On August 21, 2000, Smith filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”), challenging this disciplinary action and alleging
disparate treatment and sexual harassment in violation of Title VII of the Civil Rights Act.
The EEOC was “unable to conclude that the information obtained establishes violations of
statutes” and closed her file. Smith did not pursue her claims further.
Smith was the subject of a second internal affairs investigation that began in 2003.
This investigation resulted from the complaints of two of Smith’s subordinate police
officers, John Seas and William Crothers. These officers complained to now Captain
Goess that Smith failed to back up their calls. After an investigation, eleven charges were
filed against Smith that included failing to back up officers, ordering an officer to change
his report, lack of candor during the investigation, and failure to supervise.
An independent hearing officer, Daniel Bernardin, Esq., conducted the hearing on
these charges over a period of several months from July 2004 through October 2004.
Smith claimed the allegations were motivated by gender bias and were an effort by the
department and Captain Goess to thwart her career advancement.
In November 2004, while this disciplinary action was still pending, a lieutenant
position became available. On December 8, 2004, Chief Giordano changed the criteria for

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The criteria and weighting were changed as follows: written examination (12.5%);1
oral examination (12.5%); personnel file and profile (40%); recommendation of the chief
(25%); and interview by Township Public Safety Committee (10%).
In her brief, Smith repeatedly refers to the fact that she was found guilty of only two2
of thirty-five charges, but a review of the internal affairs investigation report (J.A. 229-
231) and the determination of the hearing officer (J.A. 233-34), it appears that eleven
charges were filed against her.
Both charges arose from events on the evening of July 4, 2003. Seas arrested a motor3
vehicle operator on an outstanding warrant and notified Smith, who was required by the
department’s standard operating procedures to return to headquarters and supervise Seas
and ensure that the proper procedures were being followed. Meanwhile, Crothers had
responded to complaints at a house where a party was being held and fireworks were
being discharged. Attendees of the party at this house were friends of Smith and
contacted her to complain that Crothers had confiscated the fireworks. Smith stopped at
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promotion to both the lieutenant and sergeant positions. Smith confronted Chief1
Giordano with her objections to the changes and she contends he yelled at her and stated,
“I’m sick of hearing it. I’ve been chief here long enough to know what’s important.”
(J.A. 81.)
Smith applied for the lieutenant position in December 2004. Smith had the highest
cumulative score in the written examination, oral examination, and township interview
categories. She received zero out of fifty points for the recommendation of the chief
(which accounted for 25% of her total score), and zero of twenty points for her discipline
record (one subsection of the personnel file and profile section).
On February 23, 2005, Hearing Officer Bernadin issued his decision finding Smith
guilty on two of the disciplinary charges: failing to supervise Seas after he made an arrest2
and ordering Crothers to falsify a report. Bernardin imposed a penalty of concurrent3

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the house to speak with her friends before returning to assist Seas. When she returned to
headquarters she told Crothers to omit any reference to drinking, intoxication, and
abusive language from his report on the incident involving her friends.
On appeal to the Superior Court of New Jersey, Smith’s charges were upheld but her4
suspension was reduced to concurrent thirty-day suspensions. The Superior Court also
found no merit to Smith’s claim that the allegations were based on any discriminatory or
retaliatory motives. (J.A. 260.)
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ninety-day suspensions on each charge. Bernardin found no merit to Smith’s claims of
gender bias on the part of either the department or Captain Goess.4
By letter dated March 8, 2005, Chief Giordano informed Smith that she had not
been selected by the Township for the lieutenant position. A male applicant was given the
promotion. Smith filed a complaint in the United States District Court for the District of
New Jersey on August 25, 2005. Smith claimed violations of 42 U.S.C. § 1983 (Count
One), the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§ 10:5-1
to -42 (Count Two), the Conscientious Employee Protection Act (“CEPA”), N.J. Stat.
Ann. §§ 34:19-1 to -8 (Count Three), and intentional infliction of emotional distress
(Count Four). Defendants’ motion for summary judgment was granted on October 30,
2007. This appeal followed.
II. Discussion
We have jurisdiction over this appeal of the final order of the District Court
pursuant to 28 U.S.C. § 1291. Our review of an order granting summary judgment is
plenary. Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there

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is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c).
Smith raises seven interrelated issues on appeal that essentially challenge the
District Court’s conclusion that there were no genuine issues of material fact that would
permit the jury to find in favor of Smith on any of her four counts. Smith asserts that she
presented sufficient evidence to raise an issue of material fact with regard to her claim that
the defendants’ reasons for pursuing the 1999 and 2004 disciplinary actions, and for not
promoting Smith to lieutenant in 2005, were merely a pretext and these acts were
motivated by gender discrimination. She contends the District Court made the same error
in finding that she did not establish a prima facie case under the CEPA. In support of
these assertions, Smith points to what she describes as a pattern of discriminatory conduct
that began in 1994 when Giordano became chief and that was evidenced by her
ineligibility for certain promotions based on changing criteria and the disciplinary actions
taken against her.
The District Court analyzed her discrimination complaints under the theory of
disparate treatment. First, the District Court applied the two-year statute of limitations of
both § 1983 and NJLAD and concluded that all of her claims were barred except for the
failure to promote her to lieutenant in 2005 and for the disciplinary action that was
initiated for conduct that occurred in 2003. The District Court properly rejected Smith’s
continuing violation theory because each alleged act of discrimination was a discrete

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employment act – either a failure to promote or a disciplinary action. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002) (“Each discrete discriminatory
act starts a new clock for filing charges alleging that act. . . . Discrete acts such as . . .
failure to promote . . . are easy to identify. Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable ‘unlawful
employment practice.’”); O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)
(“Morgan established a bright-line distinction between discrete acts, which are
individually actionable, and acts which are not individually actionable but may be
aggregated to make out a hostile work environment claim. The former must be raised
within the applicable limitation period . . . .”
The District Court considered Smith’s remaining § 1983 and NJLAD claims
together as they arise out of the same actions and are reviewed under the standard set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Thus, Smith was
required to establish that she received different treatment from that received by other
officers similarly situated and that the disparate treatment was based on her gender.
A. Failure to Promote
The District Court found Smith had established the minimal requirements of a
prima facie case of discrimination because she had demonstrated that she was sufficiently
qualified to be considered for the position of lieutenant and the promotion was given to a
male applicant. We agree. Smith was the highest scoring applicant on her oral and written

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evaluations, and it was not asserted that her disciplinary record alone would disqualify her
for this position. The subjective nature of the chief’s recommendation renders it
inappropriate for consideration at the prima facie stage of the evaluation. See Ezold v.
Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992) (a denial of
promotion based on disputed qualifications will satisfy the prima facie stage if there was
some objective evidence that the plaintiff was qualified to be among the candidates
considered).
Thus, the inquiry turns to whether the defendants established a legitimate, non-
discriminatory reason for their actions. If the defendants meet their burden, Smith then
has the opportunity to demonstrate that the defendants’ reasons are a mere pretext. To
establish pretext, Smith “must point to some evidence, direct or circumstantial, from which
a factfinder could reasonably either (1) disbelieve the employer’s articulated, legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1984).
The record established that the promotional criteria for lieutenant and sergeant were
changed just after the November 2004 announcement of a lieutenant position opening.
Chief Giordano testified that he changed the criteria to place more emphasis on an
officer’s work history than on his or her ability to score well on examinations. Smith had
the highest scores on the oral and written examinations, but the total weight was now 25%

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SOP # 85 sets forth the department’s promotion process and for the first time required5
that “[a]ll promotions shall be from a candidate’s existing rank to the next consecutive
rank. In the case of promotion to Chief, the pool of candidates shall consist of all
Lieutenants and Captains. In the event that the candidates for promotion do not
satisfactorily complete the promotion process, the process will be open to officers of the
next subordinate rank.” (J.A. 88.) This SOP also required candidates for promotion “take
examinations for the desired position,” and determined that it was in the best interests of
the department to repeal its prior practice of “seniority and merit promotions.” (J.A. 89.)
The length and merit of a candidate’s service was only to be considered if two candidates
scored equally under these promotion procedures. (J.A. 89.)
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rather than 40%, with a maximum point value of 25 for each category. The weight
assigned to the personnel file and profile was changed from 20% to 40%, with a maximum
value of 80 points assessed by evaluating various subcategories. In the discipline record
subcategory an applicant could earn a maximum of twenty points but Smith received no
points. The chief’s recommendation was 25% of the evaluation with a maximum of 50
available points. Smith also received a zero in this category. Smith was the most senior
candidate applying for this position, but consistent with Standard Operating Procedures
(“SOP”) #85 promulgated in 1996, seniority was no longer a separate category considered5
for promotion. The defendants cite Smith’s disciplinary record, including the charges that
were pending at the time she applied for this position, as supporting her scores. We agree
with the District Court that the defendants have articulated legitimate, non-discriminatory
reasons for not promoting Smith.
The burden now shifts to Smith to establish that the defendants’ reasons are mere
pretext. In this regard, “Smith does not contend that Giordano’s action in allocating ‘zero’

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points in the ‘Recommendation of Chief’ section of the evaluative criteria, after increasing
its weight . . . evidences pretext.” (Appellant’s Reply Br. 4.) Instead, she relies on “a
myriad of additional evidence from which a reasonable fact finder could find pretext.”
(Appellant’s Reply Br. 4.) Smith contends the following facts support a finding of pretext:
(1) Chief Giordano’s addition of three years supervisory experience to be eligible for a
promotion to lieutenant in 1994; (2) his 1994 promotion of a Goess, a male patrolman, to
lieutenant prior to the written examination requirement; (3) the 1996 promulgation of SOP
#85 limiting applicants promotion to the next consecutive rank; (4) the 2004 change in the
promotional criteria for sergeant and lieutenant to increase the weight of the chief’s
recommendation and the subjective nature of the recommendation; and (5) his
manipulation of the promotional criteria in 2004 to preclude any opportunity for Smith to
meet the requirements for promotion to lieutenant. (Appellant’s Reply Br. 5-6.)
Smith contends that these promotion criteria changes were really Chief Giordano’s
way of preventing her from advancing within the department. She contends that her
twenty-three years in police work, with eight years as a sergeant, and her superior
examination scores are sufficient to raise an issue as to the bias of the chief’s subjective
ratings. Smith does not dispute her disciplinary record, or that she was the subject of a
disciplinary hearing at the time Chief Giordano modified the promotional criteria for
supervisory positions and made his recommendation.

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These assertions do not suggest that the new promotional criteria, or Smith’s score
under those criteria, were a pretext for discrimination. The flaw in Smith’s claims under
both federal and New Jersey law is that she has not shown any evidence that the new
promotional criteria were inappropriate. Fuentes, 32 F.3d at 765; Jason v. Showboat Hotel
& Casino, 747 A.2d 802, 809 (N.J. Super. Ct. App. Div. 2000) (noting that state law
evaluation is consistent with Title VII and that the court will not second guess a good faith
business judgment of highly subjective criteria absent some evidence of impermissible
motives). Further, Smith has not shown that male candidates received satisfactory
evaluations from Chief Giordano despite comparable disciplinary records. Without such
evidence, there is no basis on which a fact finder could conclude that the defendants were
motivated by a gender bias or even consider whether Smith was the more qualified
candidate. As we stated in Ezold,
Where an employer produces evidence that the plaintiff was not promoted
because of its view that the plaintiff lacked a particular qualification the
employer deemed essential to the position sought, a district court should
focus on the qualification the employer found lacking in determining
whether non-members of the protected class were treated more favorably.
983 F.2d at 528.
B. Discriminatory Disciplinary Charges
Smith also contends that she had been subjected to discriminatory and retaliatory
disciplinary actions. Smith concedes that her claims concerning disciplinary actions taken
prior to the 2003 investigation are time-barred.

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Smith’s claim that the 2003 disciplinary action was discriminatory is without merit.
The record of the disciplinary proceedings reveals that Smith was provided an opportunity
to test the charges against her in a hearing presided over by an independent hearing officer.
Smith makes no claim of bias on the part of Hearing Officer Bernadin. It was his
recommendations that were approved by the Township. Although the penalty was later
reduced on appeal, the hearing officer’s findings of guilt on two charges were affirmed.
Again, Smith fails to present evidence that individuals outside the protected class
were treated more favorably. Her general assertion that “just about everyone” had
falsified reports (J.A. 361) without any specifics as to the who, what, or when of such
allegations and without evidence that Chief Giordano was aware of her claims, does not
establish pretext.
The one specific instance of disparate impact proffered by Smith involved her
allegation that Captain Goess had also changed a police report but was not subject to
disciplinary action. This incident involved a report of a missing jacket in 2001. The
jacket was originally reported as stolen. Goess testified that he modified the original
report to add that the jacket may have been lost or misplaced and clearly noted on the
report that he was responsible for making the additional notation. This incident is not
sufficiently similar to the charges against Smith for pressuring a subordinate to change his
police report concerning the potentially criminal behavior of Smith’s friends. It is also
significant that the report in Smith’s case did not include any notation that Smith was

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The District Court dismissed Smith’s NJLAD retaliation claims finding they are6
subsumed under CEPA. Smith does not challenge that determination on appeal.
14
responsible for any changes to the report. The conduct is simply not comparable. There
was also no evidence that anyone knew Goess had changed a report prior to his deposition
testimony on March 16, 2007. With no knowledge of the incident, the defendants had
nothing to investigate, even if the acts of Captain Goess would have led to an
investigation. Smith has failed to provide evidence that the defendants investigated and
disciplined her based on her gender.
C. Retaliation
Next, Smith raises a claim of retaliation under CEPA. To prevail on this claim,6
Smith must show: (1) a reasonable belief that her employer’s conduct violated a law, rule,
or regulation; (2) a whistle-blowing activity; (3) an adverse employment action; and (4) a
causal connection between her whistle-blowing activity and the adverse employment
action. See Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 2005) (citing Dzwonar v.
McDevitt, 828 A.2d 893, 900 (N.J. 2003)). As with discrimination claims, if Smith
establishes a prima facie case, the burden shifts to the defendants to articulate a legitimate,
non-discriminatory reason for its actions, Blackburn v. United Parcel Serv., Inc., 179 F.3d
81, 92 (3d Cir. 1999), and then back to Smith to rebut the reasons offered by the
defendants by establishing pretext, Bowles v. City of Camden, 993 F. Supp. 255, 262
(D.N.J. 1998).

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Smith contends she has established a prima facie case. Smith asserts that she
satisfied steps one and two when she filed a discrimination complaint with the EEOC in
2000, and when she testified in the disciplinary hearing in 2003 that the charges filed
against her were motivated by gender bias and by Captian Goess’s desire to thwart her
career advancement. Smith asserts that, as a result, the defendants retaliated against Smith
for her whistle-blowing activities by: (1) permitting Captain Goess to engage in a fishing
expedition that resulted in disciplinary charges being filed against her; (2) denying Smith
the opportunity to attend the “Program at West Point;” (3) daily actions of degradation and
humiliation; (4) pursuing her termination after two of the 2003 disciplinary charges were
sustained by the hearing officer; (5) Chief Giordano’s changes to the evaluation criteria for
the lieutenant promotion and his negative assessment of Smith in the “Recommendation of
Chief” section of the evaluation; and (6) the failure to promote Smith to lieutenant in 2005.
As is required in consideration of a motion for summary judgment, we view the
facts in the light most favorable to the non-moving party and give Smith the benefit of any
doubt the she has established the first two prongs of a prima facie case, as did the District
Court. Next, we consider whether she has established the remaining two prongs: that she
suffered an adverse employment action that was causally connected to her whistle-blowing
activity.
This analysis requires that we review each of Smith’s asserted retaliatory acts
committed by the defendants. CEPA defines a retaliatory action as “the discharge,

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suspension or demotion of an employee, or other adverse employment action taken against
an employee in the terms and conditions of employment.” N.J. Stat. Ann. § 34:19-2(e).
The New Jersey courts have interpreted this provision to require the employer’s actions to
have “either impacted on the employee’s compensation or rank or be virtually equivalent
to discharge in order to give rise to the level of a retaliatory action required for a CEPA
claim.” Caver, 420 F.3d at 255 (internal quotation marks omitted). An action filed for a
violation of CEPA must be initiated within one year of the alleged violation. N.J. Stat.
Ann. § 34:19-5.
With this criteria in mind, we must reject as time-barred any claim arising from
alleged retaliatory conduct occurring prior to August 25, 2004. The District Court was
correct in determining that the withdrawal of Smith’s opportunity to participate in the
West Point program occurred prior to August 25, 2004, and is therefore an untimely claim
of retaliation. We also concur with the determination of the District Court that the denial
of the opportunity to attend a leadership program is not a retaliatory act under CEPA.
While this would be a good learning opportunity for any police officer, the record does not
show any connection between attendance at such a program and compensation, rank, or
any other affect on Smith’s employment status. It is also illogical to conclude that Smith’s
2000 EEOC complaint caused the retaliation because Chief Giordano sponsored Smith for
the program and because of the three years that had elapsed since she filed her complaint.
The record established that it was only after new charges resulted in another internal

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investigation that the opportunity was rescinded. No reasonable fact finder could conclude
that the chief’s withdrawal of his sponsorship was based on anything other than the new
disciplinary action that resulted in charges that were ultimately upheld by the state court.
There was no causal connection between the 2000 EEOC complaint and the 2003
internal affairs investigation. This investigation was prompted by the complaints of two of
Smith’s subordinates. It was not initiated by Chief Giordano or Captain Goess. Smith’s
reference to a fishing expedition is not supported by the facts. A full investigation of
serious charges was conducted and resulted in the filing of eleven charges. An
independent hearing officer heard the evidence and found Smith guilty of two serious
charges. Smith does not challenge the motivations of the hearing officer.
CEPA “does not insulate the complaining employee from discharge or other
disciplinary action for reasons unrelated to the complaint.” Higgins v. Pascack Valley
Hosp., 730 A.2d 327, 338 (N.J. 1999). It follows that a properly conducted investigation
resulting in substantiated disciplinary charges that establish a valid basis for the complaint
is not a retaliatory act under CEPA. See Beasley v. Passaic County, 873 A.2d 673, 684-85
(N.J. Super. Ct. App. Div. 2005); Hancock v. Borough of Oaklyn, 790 A.2d 186, 193 (N.J.
Super. Ct. App. Div. 2002).
Smith has not set forth a basis on which a fact finder could conclude that the chief’s
change in the evaluation criteria for promotion to lieutenant, his poor recommendation,
and the 2005 failure to promote her to lieutenant were in retaliation for any whistle-

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blowing activity. Smith testified at the hearings conducted from July through October
2004, the exact date of her testimony is not provided. The change in promotion criteria
occurred in December 2004. This temporal proximity alone is not sufficient to establish a
causal connection. See Kachmar v. SunGard Data Sys., Inc.,109 F.3d 173, 177-78 (3d Cir.
1997).
Chief Giordano testified that the changes to the promotion criteria for both sergeant
and lieutenant were promulgated based on his determination that test performance was not
the best indicator of ability and that greater emphasis should be placed on past work and
supervisory experience. This was not the first time Chief Giordano changed promotion
criteria. The evaluation criteria for lieutenant were changed in 1994, and for sergeant in
1996. Smith provides no evidence to rebut the department’s legitimate, non-
discriminatory reasons for the changes other than the fact she did not get the promotion.
This change in criteria put greater emphasis on the chief’s recommendation than in
prior evaluations. Smith contends this recommendation prevented her promotion. In
Smith’s case, her disciplinary history and the pending investigation caused the chief to
give her a poor recommendation. Where the disciplinary proceedings were justified, they
do not serve to establish any discriminatory animus when considered by the chief in his
evaluation of her fitness for promotion. Again, Smith fails to set forth a basis for finding

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In Smith’s final claim of retaliation for engaging in protected activities, she contends7
that the defendants subjected her to daily acts of degradation and humiliation. This claim
is summarily rejected because she has failed to discuss this claim in her brief. In the
absence of any specific description of acts committed by the defendants, no further
discussion is required.
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that the chief’s recommendation was motivated by an intent to retaliate against Smith for
her testimony in the disciplinary hearings.7
III. Conclusion
After a de novo review of the record and consideration of the arguments presented,
we find that summary judgment was properly granted in favor of the defendants and we
will affirm the judgment of the District Court.

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