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FILED
DECEMBER 1ST, 2020
HON. ALAN G. LESNEWICH, J.S.C.
ORDER PREPARED BY THE COURT

:
NICOLA LOMONTE, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION – UNION COUNTY
Plaintiff, : CIVIL ACTION
:
:
vs. : DOCKET NO. UNN-L-2721-17
:
:
TOWNSHIP OF HILLSIDE, :
:
: ORDER
Defendant. :
:
:

THIS MATTER, having come before the Court by Plaintiff , Nicola Lomonte, represented

by Jeffrey Daniel Catrambone, Esq., of Sciarra & Catrambone, L.L.C., and this Court having

considered the testimony of witnesses and reviewed the exhibits marked into evidence during

bench trial in this matter that was conducted on September 21, 22, 23, 24, and 28, 2020; and for

good cause shown,

It is on this 1 st day of December, 2020;

ORDERED that verdict be and is hereby entered in favor of Defendant, Township

of Hillside, as to the claims of retaliation and hostile work environment under the NJLAD and that

the Complaint be dismissed with prejudice; and it is further

ORDERED that a copy of this Order shall be considered served upon all parties by

the uploading of the within Order by this Court to eCourts.

__________________________________

Hon. Alan G. Lesnewich, J.S.C.

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STATEMENT OF REASONS

Lomonte v. Township of Hillside

Docket No.: L-2721-17

Introduction

This employment matter sounds in racial discrimination and unlawful retaliation. Its

genesis is found in what can best be characterized as an unfortunate inability to communicate

between two persons employed by the government of the Township of Hillside (“Hillside” or

“Township”). Many incidents are alleged but, in the court’s opinion, at trial one event in particular

provides the key to understanding how this communication breakdown created an irreconcilable

riff between the two individuals which apparently planted the seeds of the eventual lawsuit.

On January 6, 2016, Plaintiff, Hillside Police Captain Nicola Lomonte, (“Captain

Lomonte”) had an “argument” with then Mayor Angela Garrettson, (“Mayor Garretson”) over a

request by her to be provided with a nylon jacket with a “police patch” attached to the sleeves. 1

Apparently, Mayor Garretson was advised by an unidentified person that two former Township

officials had received jackets. Captain Lomonte is a Caucasian male. Mayor Garretson is an

African American woman. Present at the time were two civilian employees. Both were African

American females. Captain Lomonte responded by telling the Mayor that she could get a jacket

by “becoming a police officer.” Mayor Garretson responded as follows: “Do you think that’s how

they talk to the Mayor of Irvington?” and another town that Captain Lomonte could not identify.

Captain Lomonte said he what see what he could do, and Mayor Garretson replied: “I hope you

aren’t discriminating.” For reasons never explained during the trial, Captain Lomonte found this

comment to be highly offensive and biased, with him understanding that “her goal was to offend

him and the Hillside Police Department.” As such, he told Mayor Garretson that as far as he was

1
This account comes from a compilation of Trail Exhibit P-1 and witness testimony.
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concerned, “she was the one who was discriminatory in her performance as the Mayor of the

Township of Hillside and [that he] have (sic) to support [his] statement.”

In response to a follow-up comment by Mayor Garretson that she would suspend him for

disrespectful behavior, Captain Lomonte told her that she “was not respecting professional

boundaries”. He added that if he was suspended, he would file a lawsuit. He then told the Mayor

Garretson that she was “immoral, unethical, and proven to be a liar”. In response to Mayor

Garretson’s statement that “I am still your boss”, Captain Lomonte admittedly replied angrily

“until they get rid of you.” 2 Captain Lomonte reported his behavior to the Chief of Police who

explained that he should not have yelled at the Mayor Garretson.3 Mayor Garretson filed a

complaint and, following an internal affairs investigation, Captain Lomonte received a letter of

reprimand. Captain Lomonte did not appeal the discipline imposed by the Chief of Police.

Eventually Captain Lomonte filed suit when he claimed that the Mayor Garretson created a hostile

work environment based upon his race and also retaliated against him when she, in her statutory

discretion, decided to appoint another police officer to the position of Chief of Police in 2017,

Lieutenant Vincent Ricciardi.

Statement of Facts

The bench trial in this matter was conducted before the court on September 21, 22, 23, 24

and 28, 2020. Counsel appeared in person. They capably and zealously represented their clients.

Some of the witnesses appeared in person, while others appeared by Zoom. At issue were

2
Farrah Irving, Esq., was the Hillside Township attorney for approximately two years, from January 2016
until January 2018. On January 6, 2016, Ms. Irving was sitting in a conference room near her office on the
second floor of the Township building at which time she heard voices which belonged to Captain Lomonte
and Mayor Garretson. Both parties were upset and raising their voices. Ms. Irving was the only person apart
from Captain Lomonte and Mayor Garretson who had any first-hand knowledge of the incident that testified
at trial.
3
According to Captain Lomonte, he apologized to the Chief of Police. There is nothing in the record
suggesting that Captain Lomonte ever attempted to or did apologize to Mayor Garretson.
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Plaintiff’s hostile work environment and retaliation claims filed under the New Jersey Law Against

Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et seq., against Hillside.

The following witnesses testified during Plaintiff’s case-in-chief: Captain Lomonte; Mayor

Garretson; former Township Attorney, Farrah Irving, Esq.; current Chief Vincent Ricciardi;

former Chief Louis Panarese (by Zoom); and economic expert, Kristin Kucsma, M.A. Based upon

the trial testimony, many persons who apparently had first-hand knowledge of critical events were

not called to testify.

Defendant’s witnesses were Christina Michelson-Abreu, Esq. (by Zoom) and Deputy Fire

Chief Douglas Ferrigno (by Zoom).

Captain Lomonte began his service with Hillside following his graduation from the Union

County Police Academy in June of 1995. During his career, he was promoted multiple times. On

each occasion, his promotion was based upon the law and procedure imposed on Hillside as a Civil

Service community. He remained employed until he retired after twenty -five years of service on

March 1, 2020. During his time serving Hillside, Captain Lomonte engaged in a plethora of police

related activities and capably carried out his responsibilities. 4 His service record (Trial Exhibit P-

40) was entered into evidence. It lists approximately thirty-five (35) letters of recognition, letters

of appreciation, letters of commendation, and departmental awards which he received over his

career. At times he acted as the Acting Chief of Police when Chief Panarese was out of state on

vacation. Before Mayor Garretson was sworn into office as Mayor, Captain Lomonte had little

interaction with her when she served Hillside as a Councilperson.

4 The technical details surrounding his career and attendant responsibilities were not disputed at trial.
Although impressive, except for the fact that Captain Lomonte was a successful police officer, those details
are not ultimately dispositive to the court’s analysis of the legal issues to be addressed based upon the
relevant evidential facts. Although interesting, the degree of minutia Captain Lomonte provided during his
testimony is not decisive as to any decision making by the court.
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There are several discrete events that Captain Lomonte contends support his legal claims.

First, in January 2014, he had what he testified was a “dispute” with Mayor Garretson regarding a

benign inquiry about the possibility of a police officer to drive her to Trenton for official business.

It simply was an inquiry by a new mayor to a veteran police officer during a meeting about

Township business with another employee, Pat Auguste, present. Captain Lomonte looked into

the matter and determined that he could not spare an officer. He therefore advised Mayor Garretson

that he could not honor her request. He testified that the Department had a policy not to transport

non-police personnel unless there were mitigating or emergent circumstances.

Captain Lomonte telephoned Chief Panarese to advise him of the conversation which upset

Ms. Auguste for reasons never explained.5 Captain Lomonte testified that he contacted the Chief

because he “knew” Mayor Garretson would. The court finds that the testimony about this

“incident” was not even close to a dispute. It was simply a request by a new Mayor and a polite

response by a person with knowledge. See Trial Exhibit P-7.6 Captain Lomonte drafted a letter

about the meeting which he sent to Chief Panarese. 7

The next alleged “incident” did not occur until almost one year later when in December

2014 a Township employee, payroll clerk Julie Seelogy, had a disagreement with Mayor Garretson

that was not witnessed by Captain Lomonte. (Trial Exhibits P-8 and P-43). He simply responded

to a call that Ms. Seelogy was “upset”. Specifically, Ms. Seelogy, who is Caucasian, apparently

5 Ms. Auguste did not testify at trial.

6
At trial Captain Lomonte testified that Mayor Garretson was angry during the discussion, a fact nowhere
identified in his detailed writeup of the encounter which was written shortly after the conversation. Trial
Exhibit P-7. The court finds that testimony, six years after the event, to not be credible.
7
He did not copy the Mayor on the letter claiming that he was following the required “chain-of-command
protocol” when filing a complaint about workplace discrimination or harassment. That testimony was not
logical to the court as the event could not have been understood by any reasonable person to be a dispute,
let alone an act of discrimination by Mayor Garretson.

4
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wanted to file a complaint of harassment against Mayor Garretson. According to Captain

Lomonte, when he arrived at her location in an area that is not part of the Police Department, Ms.

Seelogy was crying and shaking. At trial, Captain Lomonte never explained the reason that he, a

police officer reporting to the Chief of Police, was acting as a surrogate human resources person

for a person reporting to Mayor Garretson. Nor was the reason that the incident was considered a

matter to be investigated by the police department ever fully explained during the trial. Captain

Lomonte had no first-hand-knowledge about the interaction between Mayor Garretson and Ms.

Seelogy.8 It was not an event that could be equated by a reasonable person to be discriminatory

as to Captain Lomonte or creating a hostile work environment for him. That conclusion would

belie logic. It was simply his understanding of an event between Ms. Seelogy and Mayor

Garretson.

A third alleged incident occurred about seven months later, when in July 2015 Mayor

Garretson and Ms. Seelogy apparently had another run in. It was claimed that the Mayor Garretson

directed Ms. Seelogy to process a payroll payment to Business Administrator, Joseph Santiago,

based upon a salary amount which was supposedly not approved by the Township Council and

also that Mayor Garretson threatened her employment. (Trial Exhibit P-41). As was the case in

December 2014, Captain Lomonte was not present, but responded to the incident. At that time, he

was concerned that Mayor Garretson’s actions constituted criminal coercion and official

misconduct and he had a concern about the legality of what Mayor Garretson was directing Ms.

Seelogy to do. Again, at trial Captain Lomonte never explained the reason that he, a police officer

reporting to the Chief of Police, was acting as a surrogate human resources person for a person

reporting to Mayor Garretson. Captain Lomonte was not present to observe the interaction

8
Ms. Seelogy did not testify at trial.
5
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between Mayor Garretson and Ms. Seelogy. In the court’s opinion, it was not an event that could

be equated by a reasonable person to be discriminatory as to Captain Lomonte or creating a hostile

work environment for him.

The fourth situation was not complicated. Captain Lomonte testified that in his opinion he

was a member of Hillside’s Office of Emergency Management (“OEM”) team. That testimony

was directly contradicted by Deputy Fire Chief Ferrigno who headed the OEM. His testimony

was clear. Although he requested that Mayor Garretson appoint Captain Lomonte to the OEM, that

appointment was never made. As such, Captain Lomonte was never officially appointed to a

position in that organization by any Mayor. Captain Lomonte’s name did appear as a member of

the EMO in a draft document which Deputy Chief Ferrigno testified was a mistake. Another

person was also listed by mistake. Because he was never appointed to the OEM, Captain

Lomonte’s allegation/testimony that he was entitled to a 5% stipend for being a member was

without any evidential support.

The sixth “incident” that Captain Lomonte claimed was somehow discriminatory and part

of a hostile work environment was when Mayor Garretson “falsely accused” Chief Panarese of

referring to a music festival in Hillside as a “rap event” with Captain Lomonte concluding that the

alleged comment having a negative racial connotation with the intention of placing Panarese and

the Police Department in a “negative light”. Captain Lomonte attended a council meeting and

decided that he would speak up to clarify that Chief Panarese did not make the statement and that

the Police Department’s concerns arose from public safety issues and that he was offended by the

implication that Chief Panarese called the music festival a “rap event”. According to Captain

Lomonte, Mayor Garretson was present at the meeting and appeared “angry” in response to his

comments. The Mayor said nothing to him. Mayor Garretson testified that she recalled that during

the meeting Captain Lomonte had an “outburst” and acted “erratically”. She could not recall his
6
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exact words in light of the fact that the incident took place years ago. At trial, Chief Panarese

testified that he never heard Mayor Garretson make the alleged “rap event” comment. Nor did

Captain Lomonte hear Mayor Garretson make the comment. It was not an event that could be

equated by a reasonable person to be discriminatory as to Captain Lomonte or creating a hostile

work environment for him.

Another area that made Captain Lomonte feel that he was the subject of discriminatory

treatment and a hostile work environment involved his work related to the police hiring process.

He was involved in the hiring process for the Police Department, with responsibilities that included

providing applications to candidates, conducting interviews, and conducting background and

reference checks. He and Chief Panarese made recommendations for hiring, the final decision for

which would be made by Mayor Garretson, the Appointing Authority for the Township. The court

finds that the concern was not ground in race discrimination or could support a claim of hostile

work environment.

The next concern raised by Captain Lomonte was even more opaque. On April 23, 2015

John Teubner of the Civil Service Commission emailed Mayor Garretson regarding her negligence

in failing to ensure compliance with Civil Service rules and regulations as the Appointing

Authority for the Township which had become “tiresome” (Trial Exhibit P-9). Mr. Teubner did

not testify. Without any evidence that the court could find in the record, Captain Lomonte testified

that he was concerned that Mayor Garretson somehow was accusing him of utilizing

discriminatory criteria in recommending candidates to be police officers while in reality his

concerns regarding certain candidates arose from specific issues revealed during background

checks regarding a candidate’s criminal history, providing an inaccurate home address, history of

drug use, or financial history or irresponsibility without a reasonable explanation. He claimed he

recommended officers for hire of diverse racial backgrounds and of both genders. As such,
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Captain Lomonte testified that in his opinion, Mayor Garretson’s “allegations” that he engaged in

discriminatory practices in making hiring recommendations were false and harassing. The court

finds that the concern was not ground in race discrimination or could support a claim of hostile

work environment.

The seventh discrete event allegedly supporting the claim of discrimination and a hostile

work environment took place on October 13, 2015. Captain Lomonte provided an update to a

Hillside employee who worked in the payroll department, Ibanette Cummings 9, about the issuance

of a Township employee identification card to her and that he was awaiting approval from Chief

Panarese.10 That resulted in a phone call to Captain Lomonte from Mayor Garretson during which

he claimed she was verbally abusive, condescending and extremely unprofessional towards him.

He claims she told him, “[t]he Chief does not issue the identifications, I do!” (Trial Exhibit P-17).

Captain Lomonte hung up the telephone on Mayor Garretson. Mayor Garretson emailed Chief

Panarese about this issue and inquired about protocol for a full investigation in light of the

“unprofessional action” of Captain Lomonte. (Trial Exhibits P-15 and P-16). Chief Panarese

emailed Mayor Garretson about thirty (30) minutes later explaining that he had spoken to Captain

Lomonte about the “content and demeanor of the conversation.” He explained that “no further

course of action will be necessary”. 11 During the trial neither Captain Lomonte nor Chief Panarese

9
Ms. Cummings did not testify at trial.
10
Mayor Garretson testified at trial that Ms. Cummings was replacing Ms. Seelogy for whom Captain
Lomonte had an “affinity” and suggested that was the reason that Captain Lomonte allegedly refused to
give Ms. Cummings her identification card and that he was “being mean to her [Ms. Cummings]”. Mayor
Garretson, however, acknowledged that the Police Department was responsible for issuing identification
cards and that Captain Lomonte stated he needed to obtain approval from Chief Panarese before issuing the
card. Mayor Garretson acknowledged that before he hung up, Captain Lomonte “might” have said that the
conversation had become unprofessional because the Mayor placed him on speaker with others present.
11
There was no evidence that either Captain Lomonte or Police Chief Panarese ever apologized to Mayor
Garretson following the incident.
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was able to explain the reason that background investigations of employees were not completed

until a person was already hired and on the Township payroll. Nor was that issue ever linked to

discrimination against Captain Lomonte.

Subsequently, Chief Panarese logically directed that per Mayor Garretson’s email directive

Captain Lomonte was not to have contact with Mayor Garretson or any members of her

administrative staff (Trial Exhibit P-29) and was prohibited from attending Township Council

meetings. Captain Lamonte claims that directive inhibited his ability to perform his duties which

required that he communicate with Mayor Garretson’s office regarding promotional, hiring, and

other personnel issues and following up on responding to complaints and concerns raised by

members of the public. No specific details were provided.

It is undisputed that Chief Panarese advocated for Captain Lomonte to be promoted to the

rank of Deputy Chief, including in writing in November 2015 to Mayor Garretson (Trial Exhibit

P-18), but the she declined to authorize the promotion.

As of January 2016, Captain Lomonte “felt” that Mayor Garretson was behaving towards

him in a manner that was racially motivated and he made a formal written complaint of a hostile

work environment (Trial Exhibits P-26 and P-27) to Chief Panarese and Police Captain Richard

Floyd regarding Mayor Garretson. No copy to Mayor Garretson. In his letter to the other officers,

Captain Lomonte describes his version of the incident, described in detail in the Introduction to

this Statement of Reasons, that took place on January 6, 2016 during which Mayor Garretson

requested that Captain Lomonte provide her with a nylon police jacket.

Captain Lomonte prepared and submitted a written, formal complaint of a hostile work

environment to Hillside Attorney Irving on February 5, 2016. (Trial Exhibit P-30). On its face it

is essentially a rewrite of the letters he sent to Chief Panarese and Captain Floyd. Captain Lomonte

received a copy of a memo (Trial Exhibit P-31) from Ms. Irving dated February 15, 2016 within
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ten (10) days of Plaintiff’s hostile work environment complaint to her. In the memo, Ms. Irving

correctly explained to Township employees that unlawful harassment in the workplace would not

be tolerated.

Captain Lomonte testified that he did not receive a copy of outside counsel’s report. There

was no testimony during the trial that supported his suggestion that he was entitled to a copy.

Captain Floyd verbally advised him only that his hostile work environment complaint was deemed

to be unfounded.

Captain Lomonte sat for a “Chief’s Examination” administered by the Civil Service

Commission in December 2016. Then-Lieutenant Ricciardi was the only other individual who sat

for the exam.12 The test was oral wherein the candidates were presented with four factual scenarios

and was graded by the Commission representatives based upon their oral presentation. Hillside

had no role in administering the test.

It is undisputed that Captain Lomonte was placed first on the Chief’s promotional list as a

result of the Civil Service testing process (Trial Exhibits P-2, P-19, and D-1). His score was four

points higher than Lieutenant Ricciardi, both scoring in the eightieth percentile. The import on

the hiring process of that scoring differential was never explained during the trial by any witness. 13

Mayor Garretson became the Appointing Authority for the Township of Hillside in 2014

when she was sworn in as the Mayor. She testified, and it is not disputed, that she had final

decision-making authority over hiring and promotions in the Police Department “with guidance

12Chief Panarese registered for the exam but did not take the exam because he was of the opinion that he
was already the Chief. According to his trial testimony, he was involved in litigation involving the Civil
Service Commission and Hillside.
13
The examination was the sole component of the Chief’s promotional process in terms of the Civil Service
component and there was no other process, such as an interview or a review of the candidates’ employment
histories, disciplinary histories, internal affairs histories, or list of assignments during their respective
careers.

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from whoever was designated in the Department”. Regarding police promotions, assuming they

were going to be made and the Township was financially able to afford promotions, Mayor

Garretson would effectuate promotions of candidates on the Civil Service list who were ranked

based upon their test scores. Mayor Garretson had final decision-making authority regarding all

promotions in the Police Department.

Mayor Garretson signed Trial Exhibits P-19 on April 12, 2017 confirming her decision to

promote Lieutenant Ricciardi to Chief and not Captain Lomonte. She relied upon the “Rule of

Three” in bypassing Captain Lomonte and promoting Lieutenant Ricciardi citing “leadership” and

Lieutenant Ricciardi being a “better fit”, and that Captain Lomonte was a “follower and not a

leader”. At trial, she detailed what she meant by using those terms. Mayor Garretson did not

review either candidates’ personnel files, internal affairs files, or any related documents in making

the decision to promote Lieutenant Ricciardi over Captain Lomonte. She explained that she trusted

the previous police department promotional process. The fact that both candidates had been

promoted several times was sufficient information for her to conclude they were both capable,

experienced, and responsible police officers. Chief Panarese did not tell Mayor Garretson to

review the records of either candidate. Nor did he offer his view on who he thought would be the

better Chief of Police.

As to the incident on January 6, 2016, Mayor Garretson testified that Captain Lomonte was

“dismissive” about her request for a police jacket and acknowledged that she stated to Plaintiff, “I

hope you are not discriminating”. She did not deny threatening to suspend Captain Lomonte for

his behavior and attitude. Mayor Garretson does not dispute in her testimony that during her

interview with outside counsel, Christina Abreu, on April 4, 2016 she reviewed the “formal”

hostile work environment complaint dated February 5, 2016. During her trial testimony, Ms.

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Abreu confirmed that during her interview of Garretson, Garretson reviewed P-30, a copy of

Captain Lomonte’s complaint addressed to and filed with Ms. Irving.

Mayor Garretson testified that in her opinion, Captain Lomonte took “the issue of race to

another level by filing a complaint against her”. Additionally, Mayor Garretson testified that she

told Ms. Abreu that Captain Lomonte has an insecurity about people feeling he is racist. Mayor

Garretson admitted in her testimony that when she sat down with Ms. Abreu to be interviewed in

April 2016, Ms. Abreu explained to her that Captain Lamonte’s complaint was that Mayor

Garretson engaged in racially discriminatory and harassing conduct towards him.

Ms. Irving accepted Captain Lomonte’s written complaint (Trial Exhibit P-30) as a

complaint of a hostile work environment/harassment and discrimination under the Law Against

Discrimination. She prepared and sent her memo dated February 15, 2016 (Trial Exhibit P-31) in

response to Captain Lomonte’s complaint. (Trail Exhibit P-30). In her memo, Ms. Irving properly

outlined what she believed the standard is as to whether conduct rises to the level of a hostile work

environment under the NJLAD based upon her knowledge and experience. Ms. Irving testified

that she took no action in response to the report and its conclusions. (Trail Exhibit D-2).14

Ricciardi is currently the Chief of Police for Hillside. He has held that rank since April 12,

2017. Chief Ricciardi was hired in 1994 as a Hillside Police Officer. He worked in patrol for 4-

5 years, was then assigned to records, and in 2003 began working as the Department’s IT Manager

where he remained upon becoming a Sergeant in 2005. He did not supervise any policer officers

in records or IT other than overseeing a secondary employment sergeant and a training sergeant.

Chief Ricciardi was promoted to Lieutenant in 2007 and was never promoted to Captain during

his career. Chief Ricciardi testified that he became a shift commander in the patrol division under

14
The outcome of the investigation was that there were no violations of the NJLAD.
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Chief Panarese in 2014 but that was for less than a year, and then he was briefly assigned to

command the traffic division for approximately 3-6 months; those were the only supervisory

assignments he had in those divisions for the ten years from when he became Lieutenant in 2007

to his becoming Chief in 2017.

The Township suspended Chief Ricciardi for an excessive use of force incident in

December 2001 which resulted in disciplinary charges served against him. (Trial Exhibit P-20).

Chief Ricciardi received a written reprimand as a result of an incident which occurred at a Shop-

Rite in Hillside on May 11, 2010 (Trial Exhibit P-22) when he posed as another detective in the

Police Department without his authorization and obtained a temporary card in the officer’s name

with a permanent card being mailed to him at the Department. Chief Ricciardi classified it as a

“stupid joke”.

Chief Panarese became the Chief of Police in February 2013 and retired in July 2017.

Chief Panarese worked with Captain Lomonte “very closely”. He designated Captain Lomonte as

second in command of the Department and would at times assign Captain Lomonte to be acting

Chief in Panarese’s absence (Trial Exhibit P-14). He did so because he felt Captain Lomonte was

the “most capable” of handling the Chief’s duties in his absence. Captain Lomonte’s duties

included scheduling, administrative duties, overseeing internal affairs, OPRA requests, and

preparing press releases.

Mayor Garretson had final decision-making authority with regard to hiring in the Police

Department with Chief Panarese making recommendations to her. Chief Panarese testified without

a single example that, in his experience, individuals are typically separated by tenths of a point in

their scores resulting in the rankings on a civil service list. Chief Panarese had approximately

three to four conversations with Mayor Garretson during the Chief’s promotional process. No

details were provided during testimony.

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Interestingly, Chief Panarese was of the opinion that Captain Lomonte was the best choice

to become his successor and believed that had Mayor Garretson reviewed the candidates’ files, she

would come to the same conclusion after reviewing the candidates’ qualifications. Oddly, he never

suggested that he would bring the files to her or make them otherwise available for review. Chief

Panarese never told Mayor Garretson that Captain Lomonte was, in his opinion, the best candidate

because he did not want to “sway her” and felt she should make her own decision. 15

Ms. Kucsma’s expertise as a forensic economist and her methodology was unchallenged

by defense counsel and recognized by the Court. Based upon the information she reviewed, her

testimony was credible and logical and accurate. Ms. Kucsma calculated the present value of

Plaintiff’s economic loss arising from Defendant’s failure to promote him to Chief of Police,

including all lost salary and pension benefits, to total $58,783.00. 16

Analysis

At trial, Captain Lomonte raised two distinct claims. Specifically, Hillside engaged in

unlawful retaliation (Complaint at Count One) and also created a hostile work environment

(Complaint at Count Four), both in violation of the New Jersey Law Against Discrimination,

N.J.S.A. 10:5-1 et seq. (“NJLAD”). At trial, he had every opportunity to present evidence as to

both claims.

The court is very mindful that “the overarching goal of the LAD to eliminate the cancer of

discrimination is to be achieved through a liberal construction of its provisions.” Viscik v. Fowler

Equipment Company, Inc., 173 N.J. 1, 13 (2002). Nor is there any doubt that “[t]he New Jersey

Law Against Discrimination makes retaliatory discrimination an unlawful employment practice.”

15Chief Panarese testified that Captain Lomonte was the OEM’s Deputy Director at the request of Deputy
Chief Ferrigno, a “fact” directly and credibly contradicted by Deputy Fire Chief Ferrigno.
16 Captain Lomonte testified about the basis of his claim seeking emotional distress damages.
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Delli Santi v. CNA Insurance Co., 88 F. 3d 192, 198 (3d Cir. 1996) (quoting Jamison v. Rockaway

Township Bd. Of Educ., 242 N.J. Super. 439 (App. Div. 1990.; See also N.J.S.A. 10:5-12d

(prohibiting an employer from taking “reprisals against any person because that person has

opposed any practices or acts forbidden under this act or because that person has filed a complaint,

testified or assisted in any proceeding under this act”). As to the causation element, in an

employment matter alleging retaliation “the plaintiff must proffer circumstantial evidence

sufficient to raise the inference that the plaintiff’s protected activity was the likely reason for the

adverse employment action.” Rodriguez v. Torres, 60 F. Supp. 2d 334, 339-40 (D.N.J. 1999)

(citing Kachmar v. SunGuard Data Sys., 109 F. 3d 173 (3d Cir. 1996)); see also Farrell v. Planters

Lifesavers Co., 22 F. Supp. 2d 372 (D.N.J. 1998).

What makes an employer’s personnel action unlawful discrimination is the employer’s

intent.” Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005), citing Marzano v. Computer Sci.

Corp., 91 F.3d 497, 507 (3d Cir. 1996). Like many other courts, the Supreme Court of New Jersey

noted the difficulty of proving discriminatory and retaliatory intent:

Employment discrimination cases thus suffer from the difficulty that inheres in all state of-
mind cases – the difficulty of proving discriminatory intent through direct evidence, which is
often unavailable. ‘All courts have recognized that the question facing triers of fact in
discrimination cases is both sensitive and difficult ... There will seldom be eyewitness
testimony as to the employer’s mental processes.’
****
Our legal scheme against discrimination would be little more than a toothless tiger if the court
were to require such direct evidence of discrimination [or retaliation].” Id. at 447. “Even an
employer who knowingly discriminates [or retaliates] on the basis of [protected status or
activity] may leave no written records revealing the forbidden motive and may communicate
it orally to no one.

[Zive, 182 N.J. at 446-47. (quoting Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d
Cir. 1983).]

In light of the difficulty of directly proving state of mind, courts have applied a burden

shifting analysis to elicit circumstantial evidence of intent. Zive, 182 N.J. at 447-48. When

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analyzing discrimination and retaliation cases for intent under the LAD, Courts have adopted the

analytical framework outlined by the United States Supreme Court in McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973). See also Bowles, 993 F. Supp. at 261; Texas Dept. of

Comm. Affairs v. Burdine, 450 U.S. 248 (1980); Zive, 182 N.J. at 447. Under that framework,

first a plaintiff must fulfill the “rather modest” burden of establishing a prima facie case and merely

demonstrating that the plaintiff’s factual scenario is indicative of retaliatory intent. Id. Once a

plaintiff has established a prima facie case, the employer-defendant need only articulate a

legitimate, non-retaliatory rationale for its conduct. Clowes v. Terminix Int’l Inc., 109 N.J. 575,

596 (1988).

At that point, “the plaintiff must come forward with evidence of a discriminatory [or

retaliatory] motive of the employer and demonstrate that the legitimate reason was merely pretext

for the underlying discriminatory [or retaliatory] motive.” Kluczyk, 368 N.J. Super. at 493. It is

against this important legal backdrop that the court has based its analysis of the facts and law.

NJLAD Retaliation Claim

A plaintiff must establish a prima facie case of retaliation. Delli Santi, 88 F. 3d at 198. In

order to do so, a plaintiff must show “that (1) he or she engaged in a protected activity; (2) he or

she thereafter was subjected to [an] adverse employment decision by the employer; and (3) there

was a causal link between the protected activity and adverse employment decision.” Id. at 198;

see also Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 193, fn 1 (1988); Kluczyk v.

Tropicana Products, Inc., 368 N.J. Super. 479, 493 (App. Div. 2004).

As to the first element of a prima facie claim of retaliation under the NJLAD, the court

finds that Captain Lomonte has proven that it is more likely than not that he engaged in protected

activity, specifically by way of his written, formal complaint of a hostile work environment to

Township Attorney Irving on February 5, 2016. Further, the record establishes by way of
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Garretson’s testimony, and as confirmed by the testimony of investigating outside counsel, Ms.

Michelson-Abreu, that Mayor Garretson was aware of Captain Lomonte’s written complaint no

later than April 4, 2016, when they reviewed it during Ms. Abreu’s interview of Mayor Garretson

a year before Captain Lomonte was not appointed Chief of Police. 17

As to the second element of Captain Lomonte’s retaliation claim, the court finds that he

has proven an adverse employment action: he was not promoted to Chief of Police by Mayor

Garretson.

The court finds that Hillside has clearly articulated a legitimate business reason that

Captain Lomonte was not promoted to Chief. The multi-facetted reason was provided by Mayor

Garretson. Based upon her interaction and understanding of with the candidates experience and

personal skills, she concluded that Lieutenant Ricciardi had better leadership ability/potential/style

and was a “better fit” for the Hillside Police Department. Her testimony was that there was no

reason to review the candidates’ files as she trusted the promotional system used by Hillside. Both

candidates had been promoted multiple times and, therefore, both candidates must logically have

had the background, training, and experience to be promoted. 18

Captain Lomonte is correct: The ultimate issue for the court to decide in this matter is

Defendant’s retaliatory intent. At trial, through the credible testimony of Mayor Garretson,

asserted as its purported non-retaliatory rationale the “Rule of Three”. The court understands well

17The court finds that reading the written complaint on April 4, 2016 was the first and only time that Mayor
Garretson was made aware that Captain Lomonte was of the opinion that she was discriminating against
him or in some way creating a hostile work environment that was affecting his ability to work.
18
Although Mayor Garretson did seem to hedge on the issue of whether she was denied access to the
candidate files, that testimony did not make her a less credible witness. Indeed, as is usually the case,
during a trial witnesses find themselves in a somewhat “hostile” environment and sometimes make
testimonial errors. It is for that very reason that it is ultimately up to the fact finder to consider all of the
circumstances when judging credibility. Although the court understands counsel’s argument to the contrary,
the court found Mayor Garretson, no longer a party to the litigation, to be a very credible witness.

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that under New Jersey Supreme Court case law analyzing the Rule of Three, it cannot immunize a

municipality from liability for its retaliatory action against a candidate under the NJLAD by way

of a promotional “skip”. See Terry v. Mercer County Board of Chosen Freeholders, 86 N.J. 141,

150 (1981); In re Foglio, 207 N.J. 38, 48 (2011). 19

Captain Lomonte argues that Mayor Garretson failed to review any documents and did not

speak to Chief Ricciardi or interview Captain Lomonte or Lieutenant Ricciardi before making her

appointment decision. He contends that “inexplicably”, Mayor Garretson did not consider the

background, training, internal affairs history, accomplishments, assignments, or experience of

either candidate. He suggests that her assertion that Mayor Garretson could not cite any specifics

whatsoever to support her specious assertion that Chief Ricciardi’s “leadership style” was a “better

fit” for the Police Department was “specious”. He claims that Mayor Garretson could not provide

specific examples with regard to her rationale that Captain Lomonte was in some way a “follower”

and Chief Ricciardi was a “leader”. He claims that Mayor Garretson cannot credibly ask this Court

to accept that she insisted upon calling for the civil service test for Chief, but could then

legitimately disregard the results thereof and bypass Captain Lomonte.20 He therefore concludes

that Mayor Garretson’s failure to review his background, experience and qualifications against

19 The Rule of Three is intended to limit, not eliminate, hiring discretion. Commc'ns Workers of Am. v. N.J.
Dep't of Pers., 154 N.J. 121, 129 (1998). Thus, the appointing authority may bypass a higher-ranked
candidate "for any legitimate reason based upon the candidate's merit." In re Hruska, 375 N.J. Super. 202,
210 (App. Div. 2005). An applicant "who successfully passes an examination and is placed on an eligible
list does not thereby gain a vested right to appointment. The only benefit inuring to such a person is that so
long as that list remains in force, no appointment can be made except from that list." In re Crowley, 193
N.J. Super. 197, 210 (App. Div. 1984). Valid reasons for a bypass include, for example, a preference for a
college degree, performance in an interview, character, prior experience, training, and employment
references. There is no definitive list of valid reasons, just that they be merit-based.
20
This court respectfully rejects the argument by plaintiff’s counsel as suggested at trial in in his post-trial
submissions that the 4-point differential between the candidates on the civil service test is in some way
significant. As discussed during the trial, there was no credible evidence presented to support that
speculative assertion. No expert was called to explain that theory.
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versus those of Chief Ricciardi or engage in an honest assessment of the candidates’ qualifications

is indicative of retaliatory motive.

The court respectfully disagrees with those assessments. Indeed, the court has concluded

that the record does not even come remotely close to establishing that Mayor Garretson acted with

discriminatory intent towards Captain Lomonte at any point during her tenure as Councilperson or

Mayor. Her decision was based upon concededly, subjective and predictive judgments which relate

to the Mayor’s assessment of personality and compatibility with managerial objectives. No doubt

these are important factors which are difficult to accurately measure in a competitive examination

alone. The court is firmly convinced that the reasons provided for the ap pointment of Lieutenant

Ricciardi over Captain Lomonte, although somewhat subjective, are logical and reasonable.

Lieutenant Ricciardi was no doubt an experienced police officer he had significant IT expertise

(including being assigned to an FBI cyber-crime task force) which Mayor Garretson explained was

important for the future of police work. He was a better interpersonal match with the Mayor, no

doubt an important fact in properly overseeing a police department.

One thing that was clear from the trial is that if a Mayor and a Chief of Police cannot work

well together in their capacities as “CEO” and Chief Law-Enforcement Officer, dysfunction

occurs, and the Township residents ultimately suffer. The court has found no law that requires

that an appointing authority must provide a detailed comparison of a bypassed applicant

qualifications with those of the successful candidate. To the contrary, the “Rule of Three” specially

recognizes employment discretion and only ensures that any discretion is not exercised “in a way

inconsistent with ‘merit’ considerations”. Terry, supra, 86 N.J. at 149-50. The court is equally

convinced that Captain Lomonte, clearly an otherwise capable police officer, has not met his

burden of proven that the reasons provided were pretextual and the real reason for Mayor

Garretson’s decision was in any way, shape or form discriminatory. The court’s role is not to
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second guess the decision making of the appointing authority, but to make certain that the decision

was not tainted by discriminatory or retaliatory intent. In the court’s opinion, there is not a scintilla

of evidence in the trial record that would support the conclusion that Mayor Garretson unlawfully

strayed when she bypassed Captain Lomonte.

NJLAD Hostile Work Environment Claim

To establish a prima face hostile work environment claim under the NJLAD, Captain

Lomonte must demonstrate that “the complained-of conduct (1) would not have occurred but for

his race ; and it was (2) severe or pervasive enough to make a (3) reasonable Caucasian believe

that (4) the conditions of employment are altered and the working environment is hostile or

abusive.” Lehmann v. Toys R Us, Inc., 132 N.J. 587, 603-604 (1993). The Supreme Court in

Lehmann explained that “the second, third, and fourth prongs, while separable to some extent, are

interdependent. One cannot inquire whether the alleged conduct was ‘severe or pervasive’ without

knowing how severe or pervasive it must be.” Id.

For a court to determine “[w]hether conduct is ‘severe or pervasive’ requires an assessment

of the totality of the relevant circumstances.” Godfrey v. Princeton Theological Seminary, 196

N.J. 178, 196 (2008) (citing Taylor v. Metzger, 152 N.J. 490, 506 (1998)). This “involves

examination of (1) “the frequency of all the discriminatory conduct”; (2) “its severity”; (3)

“whether it is physically threatening or humiliating, or a mere offensive utterance”; and (4)

“whether it unreasonably interferes with an employee's work performance.” Id. (citing Green v.

Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003)). Significantly, “‘simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the terms and conditions on employment.’” Herman v. Coastal Corp., 348 N.J. Super.

1, 21 (App. Div. 2002) (quoting Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App.

Div. 1999), overruled on other grounds by Cutler v. Dorn, 196 N.J. 419 (2008)). Finally, and
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significantly, it is clear to the court that Captain Lomonte’s argument that his hostile work

environment claim can be grounded in Mayor Garretson’s alleged behavior directed at others

employed by Hillside is misguided. The Lehmann Court did not hold that a person hearing second

hand about another’s workplace experiences could support a hostile work environment claim. That

interpretation would allow employees to bootstrap claims on “facts” never experienced by the

alleged victim. The Lehmann Court observed that an employee who is subjected to discriminatory

actions by another can use as evidence his or her direct observations of the alleged h arasser’s

treatment of other employees:

In or around December 1986, plaintiff [Ms. Lehmann] began to notice what she considered
offensive sexual comments and touchings from Baylous [plaintiff’s supervisor and the
alleged harasser] directed at other female employees. Plaintiff witnessed Baylous walk up
behind a female employee at the company Christmas party and put his hands on her. The
female employee evidently found his touching offensive because she told him loudly and
in angry terms to get his hands off her. The record is replete with other instances of
Lehmann witnessing Baylous touch and grab other female employees, although the
chronology of those events is somewhat unclear.
[Lehmann, supra, 132 N.J. at 595]
Although there was much trial testimony about certain incidents, based upon the record,

the court finds that the hostile work environment claim must fail for many reasons. The court finds

the record to be bereft of any evidence linking Captain Lomonte’s race to the actions of Mayor

Garretson. In light of the nature of the claim, the court is constrained to address each of the

incidents in some detail. Some of the events might have been actionable by other employees with

additional proofs, but the court has scoured the record and determ ined that although at times

Captain Lomonte and Mayor Garretson had disagreements and even arguments, none were based

on the race of the other person.

The “request for a ride to Trenton” incident in January 2014 was between a new Mayor

and a veteran police officer. It was benign on its face. Captain Lomonte’s contemporaneous

document makes that clear. Trial Exhibit P-7. Ms. Auguste, not Mayor Garretson, “became very

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irate” with Captain Lomonte. His contradictory testimony more than six years later can not now

morph the matter into an issue of race.

That Captain Lomonte saw fit as a caring person to assist Ms. Seelogy when she and Mayor

Garretson had disagreements in December of 2014 and July 2015 cannot logically spill over to

Captain Lomonte for the purposes of proving that his race played a role. It could not have as he

was not even present to observe the interactions, only Ms. Seelogy’s reactions. The same is true

with regard to the incident regarding Ms. Cummings in October 2015. Nothing about Ca ptain

Lomonte’s race being somehow involved can be infused into the event. 21 The “rap” music

comment is the same. Neither Captain Lomonte nor Chief Panarese heard the alleged comment.

Mayor Garretson says she did not make the comment. That Mayor Garretson looked at Captain

Lomonte “angrily” when he raised the matter at a public meeting is of no moment in terms of

supporting a charge of race discrimination. Her testimony was simple and logical. She was

annoyed that Chief Lomonte thought that a public meeting was an appropriate place to raise the

issue literally out of the blue.

Chief Lomonte’s testimony that Mayor Garretson connected his responsibilities in the

hiring process of the Police Department to be evidence of racism against him remains lost on the

court. The same is true with respect to the evidential value to the issue of race claimed to be vested

in the email dated April 23, 2015 from John Truebner to Mayor Garreton and others regarding

21 To the contrary, the evidence is that Captain Lomonte hung up the telephone on Mayor Garretson. She
immediately notified Chief Panarese and requested that a full investigation in to what she identified as the
“unprofessional action “of Captain Lomonte. Trial Exhibit P-15. Chief Panarese responded to Mayor
Garretson’s email (copying attorneys for reasons never explained at trial) twenty-six (26) minutes later by
stating that he had already discussed the issue with Captain Lomonte and that “no further course of action
will be necessary.” Trial Exhibit P-16. That email was apparently sent to Captain Lomonte by Chief
Panarese with the comment “Check this out.” Id. The Mayor’s email to Chief Panarese apparently caused
Captain Lomonte to send a letter to Chief Panarese on October 15, 2015. Trial Exhibit P-17. Mayor
Garretson was not copied on the letter.

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Civil Service Commission issues as related to Hillside. Trial Exhibit P-9. In the court’s opinion,

those dots were simply never connected to the case, let alone to evidence of racism by Mayor

Garretson.

The court has already addressed in detail the January 6, 2016 which generated similar

letters from Captain Lomonte to Richard Floyd, a Captain on the Hillside Police Department, Chief

Panarese and Township Attorney, Farah Irving. Trial Exhibits P-27, P-26, and P-30. No copy of

any of the letters was sent to Mayor Garretson. The issue of racism did come up durin g the

interaction. It was raised by Mayor Garretson, not Chief Lomonte. The fact that he was trouble

by the comment makes perfect sense as two other African American women were also present. 22

Even assuming that one person asking another person if he or she is discriminating is in and of

itself an act of discrimination, the court has concluded that the statement alone was not severe

under any definition of the word. Because none of the other incidents identified by Captain

Lomonte have been proven racial in nature, the court has determined that they are without merit;

even if the court assumes that the January 6, 2016 event is somehow racial in nature, that event

alone cannot as a matter of law or logic support Captain Lomonte’s claim that he was subjected to

“pervasive” discrimination sufficient to create a hostile work environment. See Lehmann, supra,

132 N.J. at 603-604. Godfrey v. Princeton Theological Seminary, supra, 196 N.J. at 196; and

Taylor v. Metzger, supra, 152 N.J. at 506. One event over a four-year period of interaction simply

does not cut the legal mustard. The court will not paint these claimed events with the brush of

discrimination.

22 In his letters, Captain Lomonte wrote that he had been a victim and a witness to Mayor Garretson’s
“attempted bullying and demeaning of township employees throughout her career.” When cross examined
at trial, Captain Lomonte could not identify a single incident of another Hillside employee that he actually
observed.
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CONCLUSION

For the reasons set forth above, the Court will enter an Order granting verdict in favor of

Defendant, Township of Hillside, as to the claims of retaliation and hostile work environment

under the NJLAD.23

23
Because the court has ruled that Captain Lomonte has not met his burden of proving either retaliation or
a hostile work environment, the court need not address the various damages theories set forth in his
pleadings and subject to trial testimony.

24