NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

CUFF, P.J.A.D.

Plaintiff Samuel T. Flamma, Sr., is an Atlantic City firefighter. He filed a complaint against defendant City of Atlantic City (City) and various other parties when he was not appointed to captain during the effective term of a promotional list on which he was highly ranked. In his complaint, plaintiff, a Caucasian, alleged that the City engaged in reverse racial discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by refusing to promote him from the effective promotional list in the face of vacant positions. He further alleged that the City appointed African-Americans to the position of captain soon after expiration of the promotional list.

Following denial of the City's motion for a directed verdict, the trial judge submitted the case to the jury. Among the issues submitted to the jury was whether "a captain position was available." The jury returned a verdict in favor of plaintiff and awarded him $40,000 for lost wages, and $300,000 in punitive damages. The trial judge awarded attorneys' fees of $61,110, plus a fee enhancement of $14,107.50, $1,530.24 in costs, and $4,527.65 for pre-judgment interest. The judge also granted plaintiff equitable relief in the form of retroactive seniority at the rank of captain effective April 1, 2005, and ordered the City to fund plaintiff's pension commensurate with the retroactive rank of captain.

On appeal, the City argues that plaintiff was ranked fourth on the list promulgated by the Department of Personnel, and there were only two open or vacant positions. It argues that plaintiff could not and did not prove that a vacancy existed during the effective date of the promotional list to which plaintiff could have been appointed; therefore, he was not qualified for a position for which the employer was hiring. Accordingly, the City argues that its motions for directed verdict should have been granted.

The City also argues that the punitive damage award must be vacated because the judge allowed the jury to consider the City's financial condition and also allowed the jury to consider that two firefighters appointed to the captain position received retroactive pay awards from the City. Finally, the City contends that the attorneys' fee award is excessive because the judge granted an improper twenty-five percent enhancement and also awarded a contingent fee for costs and post-judgment work.

We reverse. The issue of whether plaintiff was a victim of reverse racial discrimination was founded on the existence of a vacancy during the effective term of the promotional list. That issue, in turn, cannot be resolved without reference to the law governing promotions in a Civil Service personnel system. Here, the factual record developed by plaintiff, viewed in accordance with the law governing promotions, barred relief. Moreover, even if the question had been properly submitted to the jury, the instruction provided was woefully inadequate to allow the jury to properly resolve the issue.

Samuel Flamma has served as a firefighter with the Atlantic City Fire Department (ACFD) since 1982.1 On February 1, 2008, Flamma assumed the rank of captain; he is assigned to Engine 7, Platoon 2. He had sought this position since he sat for the promotional exam in 2000. His efforts to obtain this promotion are the subject of this appeal.

From March 1, 2004 until March 1, 2007, the ACFD table of organization called for fifty fire captains in the Suppression Unit and five fire captains in the Prevention Unit. The ACFD budgeted for fifty positions. A firefighter who desires to obtain a promotion must take an examination administered by the Civil Service Commission.2 Plaintiff did so in 2000 and was ranked 26A on the list promulgated by the agency and certified to ACFD. The list was effective April 12, 2001, and was set to expire on April 11, 2004. See N.J.S.A. 11A:4-6. The list was extended for an additional year and expired on April 11, 2005. See ibid. By March 1, 2004, many eligible individuals on the list had been promoted or retired; therefore, plaintiff had moved up to the fourth position of interested eligibles on the list. Andrew Gaffney, Christopher Heald, and Kevin Stransky, all Caucasian males, preceded plaintiff on the list.

A municipality that participates in the Civil Service system must designate to the Commission, the person or entity who will serve as the appointing authority. In the City, the appointing authority was the Mayor. He promoted firefighters to the rank of captain based on the candidate's rank on the list certified by the Commission. He did not pick from the top three candidates, as permitted by the Civil Service Law, N.J.S.A. 11A:4-8, but from the "[t]op of the list down."

On August 1, 2004, Captain Michael Sykes retired. At the same time, Captain Joseph Haney was on leave due to illness. Therefore, in September 2004, Chief John J. Bereheiko directed Deputy Chief Victor Francesco to prepare paperwork to promote firefighter Gaffney to the permanent position of captain to replace Sykes and to appoint firefighter Heald to a temporary captain's position during Haney's leave of absence. Gaffney and Heald were ranked first and second on the promotional list. Francesco testified that two budgeted captain positions were open.

On September 1, 2004, the Atlantic City Vulcans (Vulcans) met with the Mayor regarding the Chief's request to fill the Sykes and Haney positions. The Vulcans are the Atlantic City chapter of the International Association of Black Professional Firefighters. The following parties were present at the meeting: Mayor Lorenzo Langford; Chief Bereheiko; Deputy Mayor Ernest Coursey; two members of the Vulcans, John Lyles-Belton and Ledford Mack; the union president, James Morgan; and the ACFD Business Administrator Benjamin Fitzgerald (the Business Administrator). Mayor Langford, Deputy Mayor Coursey, Lyles-Belton, Mack, and the Business Administrator are all AfricanA-merican. During the meeting, the members of the Vulcans raised concerns about the extended promotional list. They expressed discontent because the highest ranking minority on the promotional list was ranked immediately after plaintiff and, therefore, no African-Americans were in an immediate position for a promotion. They requested the Mayor stop all promotions. The Chief implored the Mayor to make the proposed promotions because it was critical to fill the two vacant captain positions. The Mayor said that he was going to take some time to make the decision.

In 1980, the City and eleven other cities in the State entered a Consent Decree with the United States Department of Justice (DOJ). The City agreed to recruit more minorities to the ACFD and permitted DOJ to monitor promotions. The Consent Decree remained in effect in 2004.

On September 9, 2004, Chief Bereheiko met with the Business Administrator and union president Morgan. The Business Administrator attempted to reach a compromise with the union whereby the Mayor would promote two captains if the ACFD would adhere to a "one-for-one" promotion system and promote one white captain and one black captain. According to Chief Bereheiko, both the Mayor and the Vulcans believed that the Consent Decree between the City and the DOJ permitted the "one-for-one" promotion plan. The Chief objected to this recommendation and informed the Mayor that the recommended policy would violate the Commission rules.

Several days later, the Business Administrator informed Chief Bereheiko that no appointments to captain would be made from the promotional list, and the preliminary promotion paperwork for Gaffney and Heald was rescinded. Thereafter, Chief Bereheiko arranged a meeting sometime before the end of 2004 between the DOJ and the Mayor. During that meeting, the DOJ representative explained to the Chief, the Mayor, and the City Solicitor that the Consent Decree established a goal, not a quota of a fifty-fifty split between minority and majority races in the ACFD. The DOJ representative also informed the parties that promotions based solely on race would be discriminatory.

In February 2005, Captain John McCabe retired, which opened up another permanent captain position in addition to the one permanent position and one temporary position that already existed. According to Deputy Chief Francesco, firefighter Stransky would have been promoted to fill the vacancy because he was ranked third on the then-active list.

At some point, Chief Bereheiko promoted firefighter Stransky to the position of temporary captain. When a firefighter is assigned a temporary promotion, he is only permitted to work in that temporary position for as long as the permanent employee is on an approved leave of absence, and then must return to his regular position as a firefighter. See N.J.A.C. 4A:4-1.6(f)1. If, however, the firefighter retires while still a captain, even if only a temporary captain, his pension will reflect in part his captain's salary. Due to this benefit, Stransky opted to retire on April 1, 2005, while still in the position of temporary captain. His retirement did not open a permanent captain position because his assignment was only temporary and Captain Haney still held the permanent position. It did, however, elevate plaintiff to the third rank on the list for the ten days between the retirement and the expiration of the list on April 11, 2005.

On May 1, 2005, Captain Ed Goldman retired. Plaintiff contends that, because Deputy Chief Francesco testified that members of the fire department usually provide at least thirty days' notice prior to retirement, the ACFD would have been notified of Goldman's retirement by at least April 1, 2005, and plaintiff should have been promoted from that list. Because the promotional list had expired by the time of Goldman's retirement, the ACFD filled his position using a "special employment list." The "special employment list" can only be used for promotions during times when there is no active promotional list. The City promoted Craig Johnson, who is African-American, from the "special employment list" to fill the vacancy. He was on the list because he had previously been promoted to captain but asked for a voluntary demotion for personal reasons and wanted to return to the rank of captain after his personal concerns had been resolved. The City certified Johnson for the promotion on April 22, 2005, and it was effective on May 3, 2005.

The Commission conducted additional testing subsequent to the expiration of the promotional list in April 2005. This testing resulted in the issuance of a new promotional list in December 2005. On this list, plaintiff was originally ranked number thirty-three. In February 2008, plaintiff was promoted to the permanent position of captain.

A defendant may make a motion for directed verdict at the conclusion of the presentation of evidence by the plaintiff. R. 4:40-1. The standard is the same as that for involuntary dismissal pursuant to Rule 4:37-2(b). Therefore, the trial judge may grant the motion and dismiss the action if the plaintiff has "shown no right to relief," but the judge must deny the motion if the plaintiff's "evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.

The appellate standard of review of a trial court's denial of a motion for a directed verdict is the same as that utilized in a motion for summary judgment by the trial courts. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). Therefore, "if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Dolson v. Anastasia, 55 N.J. 2, 5 (1969)); accord Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008). Here, defendant's motion for a directed verdict is informed by the facts advanced by plaintiff, the law governing promotions in Civil Service municipalities, and the law governing reverse racial discrimination claims.

Because the threshold issue in this case is the administration of the promotion system in a Civil Service municipality such as the City, we commence our discussion with an overview of the promotion process for a firefighter under N.J.S.A. 11A:1-1 to 12-11 and N.J.A.C. 4A:4.

When a vacancy occurs in the fire department, an examination is held for the competitive career service position. Pane, Local Government Law, 35 New Jersey Practice § 17.6 (2007). Competitive examinations are in two categories: open competitive and promotional. Ibid. Once an examination has been held and the results are available, a list of eligible candidates is submitted to the local appointing authority. In doing so, the Commission certifies to the appointing authority the names of the three eligibles with the highest rankings on the appropriate list. N.J.S.A. 11A:4-8; N.J.A.C. 4A:4-4.2; Pane, supra, § 17.8. If there are additional vacancies, the Commission certifies the next ranked eligible. N.J.S.A. 11A:4-8. The appointing authority is required to pick one of the three certified candidates. Ibid.

Once the examination results are certified, the Commission sets the duration of the list, which may not exceed three years. N.J.S.A. 11A:4-6; N.J.A.C. 4A:4-3.3(b). The Commission may extend the list but not beyond four years. N.J.S.A. 11A:4-6. When a promotional list for a firefighter title is extended until a new promotional list is available for certification and appointments, the extended list expires when the new promotional list is issued. N.J.A.C. 4A:4-3.3(e). Certifications of and appointments from the new list cannot be made until the Commission promulgates the list. Ibid.

When a list has been certified to an appointing authority, it shall appoint one of the top three interested eligibles from the promotional list, N.J.A.C. 4A:4-4.8(a)3, and notify the Commission of the disposition of the certification by the disposition due date. N.J.A.C. 4A:4-4.8(b). The disposition due date may be extended beyond the expiration of the promotional list to fill current vacancies but "[u]nder no circumstances shall a disposition due date be extended beyond the expiration date of the eligible list when vacancies do not exist." Ibid. In addition, an anticipated vacancy is not synonymous with an existing vacancy. Ibid.

An eligible may not be appointed and commence work after the expiration of the eligible list except in three situations. N.J.A.C. 4A:4-4.9(a). First, the eligible may be appointed and commence work after expiration of the list if the eligible candidate is on military leave or an approved leave of absence, N.J.A.C. 4A:4-4.9(a)1; or there is a limited revival or statutory extension of the list, N.J.A.C. 4A:4-4.9(a)2; or when the certification is made just before the eligible list expires and the eligible commences work before the disposition due date, N.J.A.C. 4A:4-4.9(a)3.

Finally, there are different eligible lists: open competitive, promotional, regular reemployment, police or fire reemployment, and special reemployment. N.J.A.C. 4A:4-3.1(a). When there is more than one current eligible list for a title, a special reemployment list has priority over the promotional list, when the vacancy is in the department from which the eligible was laid off, demoted, or laterally displaced. N.J.A.C. 4A:4-3.7.

The LAD prohibits unlawful discrimination against employees. In employment discrimination cases, the burden of proving a prima facie case lies with the plaintiff. State v. Segars, 172 N.J. 481, 494 (2002). In any reverse discrimination case, whether gender- or race-based, the basic prima facie case survives, except that the plaintiff must establish that "he has been victimized by an `unusual employer who discriminates against the majority.'" Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551-52 (1990) (quoting Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252 (10th Cir. 1986)). As so modified, the plaintiff must establish: (1) the defendant is the unusual employer who discriminates against the majority; (2) he applied for a position for which he was objectively qualified; (3) he was not hired for that position; and (4) the employer filled the position with a similarly qualified person. See Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005); Bergen Commercial Bank v. Sisler, 157 N.J. 188, 218 (1999).

Once a plaintiff produces evidence of all four elements, the burden shifts to the defendant, who must then produce evidence of a legitimate, non-discriminatory reason for its hiring decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000); Gerety, supra, 184 N.J. at 399. This, however, only shifts the burden of production, the plaintiff is still left with the burden of persuading a jury that the defendant's asserted reasons are a mere pretext and there truly was discriminatory intent. Reeves, supra, 530 U.S. 146-47, 120 S. Ct. at 2108-09, 147 L. Ed. 2d at 119-20.

Here, plaintiff adduced evidence to establish that a promotional list existed, several fire captains retired, and plaintiff progressed higher on the promotional list with each retirement. Plaintiff established he was ranked highest on the promotional list as of the retirement of Goldman on May 1, 2005, but also established the promotional list expired on April 11, 2005. In addition, plaintiff adduced evidence the Mayor intended to nominate a non-Caucasian to the next vacant captain position, and he filled a vacancy created by the May 1, 2005 retirement of Captain Goldman with an African-American firefighter. The record reveals that the African-American firefighter promoted to fill the vacancy created by Captain Goldman's retirement ranked first on a special reemployment list that had priority over a promotional list. In other words, even if the promotional list on which plaintiff ranked first at the time of Captain Goldman's retirement remained in effect, the promoted African-American firefighter had priority over plaintiff.

The trial judge was required to evaluate the evidence in light of the governing law. When that is done, the City's motion for a directed verdict should have been granted.

A firefighter can be promoted only from a valid promotional list. A promotional list is effective for no more than three years. A vacancy is not created until the incumbent vacates the position. Here, the promotional list expired on April 11, 2005; it was not subject to extension having been extended for one year after its initial three-year term expired on April 11, 2004. When the list expired, there was only the expectation of a single vacancy because Captain Goldman had announced his intention to retire on May 1, 2005. When he retired on May 1, 2005, a vacancy existed, but the list at which plaintiff placed first had expired and a special reemployment list also existed.

Moreover, although the record contains evidence of the Mayor's intention to appoint a non-Caucasian and ostensibly to circumvent the effective eligibility list on the occasion of the next vacancy, the record established that when the next vacancy occurred, the regular promotional list had expired. Notably, the record is bereft of any evidence that the Mayor influenced Captain Goldman to delay his retirement until the promotional list had expired and the person appointed to fill the Goldman vacancy appeared on a special reemployment list that would take precedence over the regular promotional list on which plaintiff appeared. In short, giving plaintiff the benefit of all reasonable and legitimate inferences that can be deduced from the facts presented, see Dolson, supra, 55 N.J. at 5, his case should have been dismissed as a matter of law.

At the heart of this case is the application of the law governing promotions in a Civil Service municipality. This is a judicial function, not a matter for fact-finding by a jury. McGarvey v. G.I. Joe Septic Serv., Inc., 293 N.J.Super. 129, 140 (App. Div.), certif. denied, 147 N.J. 263 (1996). When the facts are not disputed, the judge must ascertain the law and decide the case. If the facts are disputed, the judge must ascertain the law governing the case and explain it to the jury. Ibid.; accord State v. Grimes, 235 N.J.Super. 75, 80 (App. Div.), certif. denied, 118 N.J. 222 (1989).

In Grimes, the defendant had been indicted for official misconduct. 235 N.J. Super. at 78. We held the trial judge erred in allowing expert testimony on the nature of the office of constable, its scope, and its responsibilities because these are matters of law. Id. at 79. We also held that "[w]here the statutory law is incomplete or unclear . . . a court should take judicial notice of those duties which arise out of the nature of the office." Ibid.

Here, the entire issue of whether a vacancy existed during the effective term of the promotional list could only be resolved by an application of the regulatory framework governing promotions in a Civil Service system to the facts adduced by plaintiff. Our review of the record reveals that the number of vacancies, when each vacancy occurred, and plaintiff's place on the promotional list were not disputed. There was also no dispute about the effective term of the promotional list. The issue to be resolved in this case was whether plaintiff could have been appointed to the last vacancy created when Captain Goldman retired. That was a question of law to be determined by the trial judge, not a question of fact for resolution by the jury. Applying the applicable law to the facts, the City's motion for a directed verdict should have been granted.

Due to our disposition, we need not address the remaining issues raised by the City. We would be remiss, however, if we did not note that the trial judge erroneously allowed plaintiff to introduce evidence of the City's financial condition, and, assuming the existence of a vacancy is a fact issue for resolution by the jury, the charge to the jury was woefully inadequate to allow the jury to discharge its function. In Lockley v. State of New Jersey, Department of Corrections, 177 N.J. 413, 430-31 (2003), the Court stated that the financial condition of a public entity is not useful to the jury's consideration of punitive damages and does not further the goal of deterrence.

As to the charge, the judge summarized the contentions of the parties. He informed the jury that plaintiff contends that he was not promoted to captain prior to the expiration of the promotional list due to his race in violation of the LAD. The judge also advised the jury that defendant City contended that there were only two available budgeted positions and two persons ranked higher than plaintiff on the promotional list. He informed the jury that it was "plaintiff's burden to prove by a preponderance of the evidence that there [were] more than two budgeted captain's positions available prior to the expiration of the D.O.P. list." The judge also instructed the jury how it should order its consideration of plaintiff's claim, if it found there were more than two budgeted positions. Significantly, the judge did not include a single reference to the statutory and regulatory framework governing promotions in the Civil Service. Of particular note is the absence of any advice to the jury that a vacancy is not created when an incumbent announces their intention to retire or resign but only when the person actually vacates the position. In short, this jury was left without any guidance on the applicable law.

Reversed.