NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Michael Duncan appeals from the Law Division orders of July 2, 2009 that: 1) granted summary judgment to defendants Mayor and Committee of the Township of Hazlet (Hazlet), the Hazlet Police Department (the department), and its police chief James A. Broderick, (collectively, defendants); and 2) denied plaintiff's motion to compel discovery from defendants.1 We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.

I.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J.Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We consider the following facts from the motion record in a light most favorable to plaintiff.

Plaintiff is a police officer in the department and was a reservist in the United States Air Force from July 29, 1992 to March 22, 2004, when he was honorably discharged. It is unclear from the record exactly when plaintiff became employed as a police officer, but, based upon his interrogatory answers, he was so employed in 2001 when he alleged Broderick's "dislike for [him] began." Plaintiff claimed that upon his return from a military deployment in the Middle East that year, Broderick, then deputy chief of the department, "accused [him] of volunteering for the trip and stripped [him] of 153 comp hours."

The department was established by adoption of the following ordinance:

A later addition to the code, entitled "Table of Organization," provided a schedule of positions. Hazlet, N.J., Code of the Twp. of Hazlet § 67-16 (1995).

The ordinances were amended in 2004 and again in 2005. The 2005 table of organization provided for eight sergeant positions. Hazlet, N.J., Ordinance 1317-05 (Jan. 25, 2005). The total number of sergeants was reduced to six by the annual amendment to the department's table of organization approved in 2006. Hazlet, N.J., Ordinance 1363-06 (Apr. 17, 2006).

Laurino certified that at some point after the retirement of a sergeant in 2004, "there was an additional sergeant position left open that was never filled." NJDOP issued a sergeant eligibility list on January 27, 2005. The three highest-ranking candidates were: 1) David Cohen; 2) Laurino; and 3) plaintiff. Cohen and plaintiff were accorded veteran status. The expiration date for the promotional list was January 26, 2008.

Laurino also certified that "during this time period patrol officers were forced to [do] the job of a sergeant when the sergeant assigned was on his/her scheduled days off." In November 2005, Cohen filed a grievance through his union, P.B.A. Local 189, which challenged the use of patrol officers to cover for sergeants. In an undated letter that defendants produced in support of their motion for summary judgment, Cohen advised Chief Broderick of his complaint and referenced "talk[] of promoting a[t] least two patrolm[e]n to sergeant."

On February 21, 2006, NJDOP advised Hazlet's Administrator of its receipt of information that two officers, Daniel Lynch and Kevin Leonard, were performing the duties of sergeant "in an `acting' capacity." NJDOP initiated "a classification review of the positions currently filled by these police officers." On November 17, 2006, NJDOP advised Hazlet of the results of that review.

NJDOP had interviewed Lynch, Leonard, their departmental supervisors and Broderick. The review concluded that "based on the current scheduling . . . within the Police Department, . . . there is sufficient cause to determine that on all three shifts there is a regular scheduling occurring whereby police officers are assigned as `Acting Sergeant/Shift Leaders.'" NJDOP advised that unless there was a scheduling change in the shifts within the department, "there [wa]s [a] basis for the establishment of regular permanent Sergeant positions," and if it did not hear from Hazlet by December 1, 2006, it would "proceed to have a certification issued to the Township for three vacant positions to be filled."

In support of the summary judgment motion, Broderick certified that "it was [his] feeling that the person who alerted [NJDOP] . . . was . . . Cohen, as . . . Cohen had previously sent [him] a memorandum and filed a formal grievance with respect to said allegation[]." Broderick further certified that he "took all necessary steps to change the schedule so as to eliminate the need for `acting sergeant/shift leaders.'" Broderick assigned four sergeants to a 12-hour work schedule (the Pitman schedule), resulting in a sergeant being on-duty at all times. On January 26, 2007, NJDOP accepted the Pitman schedule, along with an increase of one sergeant in the patrol division as "sufficient[,]" which "alleviated the need to request certification of the current promotional list for sergeant at this time."

In July 2007, Hazlet adopted another amendment to the police department's table of organization that reduced the number of sergeants to five and reorganized the patrol and support divisions. Hazlet, N.J., Ordinance 0619-07 (July 10, 2007). Broderick also certified that in December 2007, a vacancy arose in the sergeant ranks "as a result of a vacant lieutenant's position being filled." Cohen was promoted to sergeant.

Plaintiff's opposition to the summary judgment motion did not contest most of these facts, but, rather argued that Broderick took the actions "purposely to deny [plaintiff] [his] rightful promotion[]." Plaintiff certified that in addition to stripping him of his compensatory time in 2001, Broderick transferred him to another squad because he believed his current squad sergeant, a veteran, was "`coaching'" him.

Plaintiff claimed Broderick "ha[d] a history of harassing veterans," and promoted Cohen and the lieutenant to avoid litigation. He also alleged that Broderick had initiated disciplinary actions against him, including a "bogus six-day suspension which could affect the score of [his] civil service score on next [sic] sergeant's test." Plaintiff certified that another officer had physically threatened him, that he requested an internal investigation of the incident, and that Broderick assigned a biased supervisor to investigate, guaranteeing that the offending officer would not be disciplined.

Laurino further certified that Broderick blamed him and plaintiff for "put[ting] . . . Cohen up to filing the NJDOP complaint." Both Laurino and plaintiff certified that after the promotional list expired, Broderick maintained a vacancy in one of the sergeant's positions and reverted back to the former shift schedule.

Plaintiff filed his complaint in lieu of prerogative writs on August 23, 2007. In the first count, plaintiff alleged that defendants "failed to promote [him] to the position of sergeant despite available openings," enacted an ordinance that "fail[ed] to set forth the number of ranks in their patrol organization" in violation of N.J.S.A. 40A:14-118, and otherwise "thwarted plaintiff[`s] rightful promotions to the open and available positions of sergeant[]." In count two, plaintiff alleged that defendants violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the LAD), by intentionally refusing to promote him to sergeant "due to his military status." In the third count, plaintiff alleged that defendants "punished" and retaliated against him "for complaining about the improper actions of the police department and for the New Jersey Department of Personnel [(NJDOP)] conducting an audit," in violation of his "constitutional rights to freedom of speech, assembly and association and the right to petition the courts and state governmental agencies for redress as guaranteed by Article I, paragraphs 6, 18, and 19 of the New Jersey Constitution."

Defendants filed their answer in October 2007 and discovery ensued. In August 2008, plaintiff's counsel advised defendants that discovery responses were overdue but filed no motion to compel discovery. Despite the lack of discovery in the interim and a pending May 4, 2009 trial date, the parties agreed to mediate the dispute. In a letter dated March 6, 2009, plaintiff's counsel advised the court that a mediation session was scheduled for April 15. In the same letter, the parties jointly requested a sixty-day extension of discovery and adjournment of the trial date.

On March 13, plaintiff's counsel advised defense counsel that the trial date was adjourned for sixty days, and that the judge "ruled . . . the parties may continue to engage in discovery on a consent basis." On April 13, 2009, defendants answered plaintiff's demands for written discovery. On April 30, plaintiff's counsel wrote to defense counsel objecting that the answers to certain interrogatories and document demands were insufficient.

Defendants moved for summary judgment.2 Plaintiff opposed the motion and cross-moved to compel discovery.3 Oral arguments were held on June 12, 2009, the judge reserved decision, issued his oral opinion on July 2, 2009, and entered orders granting defendants summary judgment and denying plaintiff's motion to compel discovery the same day. This appeal followed.

II.

In Points I and II of his brief, plaintiff contends that summary judgment was inappropriate because genuine disputes of material facts existed, and, that the judge granted defendants' motion "without making findings of fact, citing relevant caselaw and reaching conclusions of law." In Points III, IV and V, plaintiff specifically addresses the three counts of his complaint. Keeping in mind the general assertions made in plaintiff's first two points on appeal, we address the issues presented with respect to each of the causes of action pled in the complaint.

(i)

Plaintiff contends that Hazlet's ordinances violate N.J.S.A. 40A:14-118 "because, either as written or as interpreted, they are not binding on the Chief of Police, who is left with the discretion to disregard and/or manipulate the Township's Table of Organization." We disagree.

N.J.S.A. 40A:14-118 (the Statute) provides:

The Statute thereafter defines the responsibilities of the chief of police. Ibid. In granting summary judgment on the first count of plaintiff's complaint, the judge concluded:

We have interpreted the Statute as providing "a municipality [with] the authority to create a police force[,]" which "it must do . . . by ordinance and the ordinance must establish the `line of authority,' i.e., organizational chart." Reuter v. Borough Council of Borough of Ft. Lee, 328 N.J.Super. 547, 554 (App. Div. 2000) (quoting N.J.S.A. 40:14-118), aff'd in relevant part, 167 N.J. 38 (2001). "[T]hat police positions be established by ordinance is consistent with the significance of those positions and their importance to the public," as well as "the continuing budgetary implications of the creation of police positions." Reuter, supra, 167 N.J. at 41 (citations omitted).

We have since held, however, that "the `line of authority' provision in N.J.S.A. 40A:14-118 does not require the inclusion in a police ordinance of provisions dealing with the internal structure of the department from the chief down through the ranks." Loigman v. Twp. Comm. of Middletown, 409 N.J.Super. 13, 26 (App. Div.), certif. denied, 200 N.J. 503 (2009). Thus, the ordinance at issue in Loigman "was not deficient for failing to include a more elaborate organizational chart." Ibid. An ordinance is valid if it "create[s] positions within the police department . . . and specif[ies] the maximum number of positions within each rank." Ibid. (citing Reuter, supra, in passim).

Although ordinance § 67-1 used the phrase, "from time to time," language similar to "as they may see fit," which we disapproved in Reuter, supra, 328 N.J. Super. at 556, each time § 67-1 was amended, § 67-16 was also amended, setting forth the maximum number of positions at each rank. The ordinances, therefore, did not violate the Statute.

Plaintiff further contends that even if facially valid, Broderick and Hazlet violated the ordinances by not filling each and every vacancy as it arose. Plaintiff cites no authority for the proposition that a municipality must fill every rank to the maximum number permitted under the ordinance, and we have found no such precedent. Such a requirement is inconsistent with the general intent of the Statute, i.e., that "the department's day-to-day operations [are left] in the hands of the police chief, who would be accountable to the appropriate authority." Hawthorne PBA Local 200 v. Borough of Hawthorne, 400 N.J.Super. 51, 59 (App. Div. 2008). Summary judgment dismissing plaintiff's prerogative writs claim was proper.

(ii)

In granting summary judgment on plaintiff's LAD claim, the motion judge concluded that although plaintiff "[wa]s a returning veteran[,]" "once . . . discharged . . ., that protected status cease[d]." The judge further noted that Cohen, who was promoted, was a veteran. Plaintiff argues that the judge "ignored the long line of []LAD precedent regarding discrimination of individuals outside a protected class."

The LAD prohibits "unlawful discrimination" against employees based upon "liability for service in the Armed Forces of the United States." N.J.S.A. 10:5-12(a).

It is undisputed that plaintiff was discharged from the military on March 22, 2004. It is also undisputed that the promotional eligibility list was issued nearly one year later, on January 19, 2005.

"All employment discrimination claims require the plaintiff to bear the burden of proving the elements of a prima facie case." Victor v. State, 203 N.J. 383, 408 (2010). Summary judgment is appropriate if plaintiff fails to carry this burden. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448-49 (2005). To establish a prima facie case under the LAD based upon a failure to promote:

Plaintiff concedes that he was not a member of a protected class when the promotional list was issued, when Hazlet reduced the number of sergeants to six in 2006, when NJDOP issued its compliance review report, when Broderick implemented the Pitman schedule, and when Hazlet again amended its ordinance in 2007, further reducing the number of sergeants to five. In short, at all times relevant to plaintiff's claim that he suffered an adverse employment consequence because of his military status, he was no longer "liab[le] for service in the Armed Forces of the United States." N.J.S.A. 10:5-12(a).

Plaintiff contends that Broderick may have "perceived" he was still eligible for active duty after his discharge. There is no evidence in the record to support that assertion.

Likewise, plaintiff's citation to other cases, such as Craig v. Suburban Cablevision, 140 N.J. 623 (1995), and O'Lone v. New Jersey Dep't of Corrs., 313 N.J.Super. 249 (App. Div. 1998), for the proposition that non-class members may nonetheless prove a cause of action under the LAD, is entirely misplaced. Craig was an action brought under the LAD's anti-retaliation provision, N.J.S.A. 10:5-12(d), in which the Court recognized an LAD cause of action by fellow employees who supported the aggrieved employee's discrimination complaint. Craig, supra, 140 N.J. at 629. In O'Lone, supra, 313 N.J. Super. at 255, we held that the plaintiff, who was Caucasian, could assert an LAD claim based upon an allegation that he was discharged from employment because his girlfriend was African-American. We determined that regardless of his race, the plaintiff was the "functional equivalent" of a protected class member and had been "victimized" by the unlawful discrimination. Ibid. Craig and O'Lone provide no support for plaintiff's position in this case.

We assume arguendo the veracity of the claims regarding Broderick's treatment of plaintiff upon his return from active duty in 2001, as well as plaintiff's contention that Broderick "harassed" him or disfavored other veterans on the police force. In our mind, however, these allegations, largely uncorroborated by the record, cannot cure the fatal flaw in plaintiff's prima facie LAD claim for discrimination in failing to promote him to sergeant or subjecting him to a hostile work environment based upon his status as a discharged veteran. Summary judgment was properly granted on plaintiff's LAD claims.

(iii)

In dismissing the third count of plaintiff's complaint alleging unconstitutional retaliation, the judge stated:

In this regard, the judge focused solely upon the complaint made to NJDOP. It was undisputed that Cohen, not plaintiff, actually filed the union grievance, although Laurino claimed in his certification that Broderick blamed him and plaintiff for supporting Cohen's complaint, and frequently made the accusation to others in police headquarters. It is undisputed that when Cohen filed his grievance, plaintiff was one of the union representatives to whom it was referred.

Plaintiff argues that there were sufficient disputed material facts regarding Broderick's perception of his involvement in the NJDOP complaint to forestall summary judgment on the third count, and, further, that the judge failed to consider other actions attributed to Broderick that were allegedly retaliatory in nature, such as the "bogus" disciplinary charges.

At oral argument, plaintiff's counsel described the cause of action, and supporting case law, as follows:

Before us, plaintiff argues that defendants not only violated his constitutional rights, but also violated N.J.S.A. 11A:2-24, which provides:

Plaintiff concedes a "dearth of caselaw" exists regarding this statutory administrative remedy.

We need not consider whether N.J.S.A. 11A:2-24 provides plaintiff with a private cause of action, see, e.g., Lally v. Copygraphics, 173 N.J.Super. 162, 181-82 (App. Div. 1980), aff'd, 85 N.J. 668 (1981) (holding "that an employee who claims to have been the victim of retaliatory discrimination, in violation of N.J.S.A. 34:15-39.1," for pursuing a workers' compensation claim "may elect to pursue either a judicial or administrative remedy"), because we affirm dismissal of plaintiff's retaliation claim under traditional analysis applied to claims of constitutional violations.

Plaintiff's complaint alleged violations of Article I, paragraphs 6 (freedom of speech), 18 (the right to assemble and petition for redress of grievances), and 19 (the right of labor to organize and present grievances) of the New Jersey Constitution. As noted above, plaintiff never asserted a claim under the United States Constitution, 42 U.S.C.A. § 1983 or the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.

Plaintiff's constitutional arguments, however denominated, must be analyzed under the tripartite test enunciated in Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001):

We apply this standard to our review of the grant of summary judgment on count three of the complaint.

Plaintiff contends that his involvement in union activities and the complaint to NJDOP that led to the review of staffing in the department were protected activities because they involved matters of public concern. See, e.g., Crane v. Yurick, 287 F. Supp. 2d 553, 560 (D.N.J. 2003) ("Plaintiff's speech clearly related to his union activities, as it involved contract negotiations, and it was also clearly a matter of public concern. Therefore, Plaintiff passes the first element of the Baldassare test.").

However, recently, in Spinks v. Twp. of Clinton, 402 N.J.Super. 465, 468 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009), we applied the above tripartite analysis and affirmed the grant of summary judgment to the municipal defendants under circumstances very similar to this case.

In Spinks, the plaintiff police officers and other union members had filed an unfair labor practice with the Public Employment Relations Commission (PERC) and filed a complaint in the Law Division challenging a new promotional procedure adopted by the police chief that allowed less senior officers to be promoted ahead of them. Id. at 469. While those actions were ultimately settled when the town agreed to promote some of the officers, the police chief, with the prosecutor's approval, initiated an internal affairs investigation of all patrol officers based upon complaints about their on-the-job conduct. Id. at 470.

As a result, criminal charges were brought against the plaintiffs, they pled guilty to falsifying documents, were admitted to the Pre-Trial Intervention program, and resigned from the police force. Id. at 471-72. The plaintiffs then filed an action in the Law Division alleging: 1) the allegations of misconduct brought against them were in retaliation for their earlier, successful legal actions regarding promotions; and 2) age discrimination under the LAD. Id. at 472.

In affirming the trial judge's analysis under Watters, supra, and his grant of summary judgment to the municipal defendants, we concluded:

In this case, plaintiff's union activities that may have led to the filing of Cohen's formal grievance and the NJDOP audit, and his complaints, individually or through his union, regarding the internal operations of the police department "concerned how the administration of the police department and management of its personnel affected plaintiff[] and [his] bargaining unit." Spinks, supra, 402 N.J. Super. at 478. They did not involve matters of public concern. Summary judgment was properly granted on the third count of plaintiff's complaint.

III.

Lastly, plaintiff contends that summary judgment was improperly granted because "discovery was on-going and defendants intentionally withheld relevant discovery." The argument lacks sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E).

We have said that "if the summary judgment turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed." United Sav. Bank v. N.J. Dep't of Envtl. Prot., 360 N.J.Super. 520, 525 (App. Div.), certif. denied, 177 N.J. 574 (2003); see also Kaczorowska v. Nat'l Envelope Corp., 342 N.J.Super. 580, 591 (App. Div. 2001) (quoting J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J.Super. 170, 204 (App. Div. 1996)), (holding that "`[w]hen the incompleteness of discovery is raised as a defense to a motion for summary judgment, that party must establish that there is a likelihood that further discovery would supply the necessary information.'"). We "generally defer to a trial court's decisions regarding discovery, with review under the [abuse of] discretion standard." Pressler and Verniero, Current N.J. Court Rules, comment 4.5 on R. 2:10-2 (2011); accord Bender v. Adelson, 187 N.J. 411, 428 (2006) (applying abuse of discretion standard to the trial court's decision to bar amendments to interrogatory answers and deny discovery extension).

In this case, having granted summary judgment, the motion judge denied plaintiff's cross motion without explanation. However, it is clear that the discovery end date had passed, that plaintiff's informal request to extend discovery had been denied, and, most importantly, that plaintiff never sought to compel defendants to provide more specific answers to interrogatories, or to depose defendants. Any claim that summary judgment should not have been granted because discovery was ongoing and defendants failed to provide discovery is without merit.

Affirmed.