Luis A. SANTIAGO, Plaintiff, v. CITY OF VINELAND, et al., Defendants, 107 F. Supp. 2d 512

OPINION ORLOFSKY, District Judge. Table of Contents I. BACKGROUND.520 II. LEGAL STANDARD GOVERNING A MOTION FOR

SUMMARY JUDGMENT.526 III. DISCUSSION.527 A. Failure to Exhaust Administrative Remedies: Title VII.527 B. Santiago’s Discrimination Claims on Grounds of Race, Disability and Retaliation.529 1. Race Discrimination under 4,2 U.S.C. §§ 1981 and 1988 and the New Jersey Law Against Discrimination (“NJLAD”).531 a. The Prima Facie Case Analysis: Was Santiago “Qualified?”.532 b. The Defendants’Legitimate, Nondiscriminatory Reasons.533 c. Pretext for Discrimination.534 i. The Narcotics Allegations .534 ii. New Jersey’s Rule of Three.536 iii. Robert Carr.537 iv. The Negative Recommendation .537 d. Liability of the Defendants.538 i. Race Discrimination in violation of 42 U.S.C. §§ 1981 and 1983 .538 (

a) The City of Vineland.538 (

b) The Individual Defendants.540 (

c) Defendants Romano and Gallo.542 ii. Race Discrimination in violation of the NJLAD.543 e. Qualified Immunity.545 2. Disability Discrimination under the Americans with Disabilities Act and Handicap Discrimination under the New Jersey Law Against Discrimination (“NJLAD”) .546 3. Retaliation.550 a. Individual Defendants Brunetta, Frense, Letizia and D’Augostine.551 b. The City of Vineland and Individual Defendants Romano and Gallo. 42 U.S.C. §§ 1981A, 1982,1983,1985,1986 and 1988 . Q 1. Violation of Due Process of Law . a. The Alleged Failure to Provide a PreDeprivation Hearing. b.

Municipal and Individual Liability . c. Qualified Immunity. 2. Conspiracy, pursuant to U.S.C. § 1985(1). 3. Claims. False Arrest . Malicious Prosecution . Common Law Breach of Contract and Intentional Interference with Contractual Relationship. ox 05 05 The Tort of “Outrage”. Santiago’s Claims for Punitive Damages . Cn ox 05 05 CO 00 MO 1. The City of Vineland. Ox Ci O 2. The Individual Defendants. Ox Ci O IV.

CONCLUSION. .570 In this employment discrimination suit, this Court is called upon to determine, among other things, whether undesirable personality traits constitute an “impairment” under the Americans with Disabilities Act and whether a municipal special law enforcement officer who, by State statute, can be discharged only “for cause after an adequate hearing” is entitled to a pre-termination hearing when he is accused of selling illegal drugs at some point in the past. Plaintiff Luis A.

Santiago (“Santiago”), a former special law enforcement officer of the City of Vineland, has filed an Amended Complaint alleging that the City, its former mayor and various police officials violated his federal and constitutional rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Counts One and Six), the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. (Counts Four and Six), and 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988 (Count Three). See Am. Compl. at ¶¶ 43-46, 51-61, 65-67.

In addition, Santiago alleges discrimination and retaliation claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (Counts Two, Four and Six), as well as the common law claims of false arrest (Count Five), malicious prosecution (Count Five), breach of contract (Count Seven), intentional interference with his contractual relationship (Count Eight), and the tort of “outrage” (Count Nine). See id. at ¶¶ 47-50, 56-74. Before this Court are two motions for

summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), filed by the two sets of defendants in this case, the City of Vineland, Joseph Romano and John P. Gallo and by Mario Brunetta, Paul Leti-zia, John Fresne and Dennis D’Augostine (collectively, “Defendants”). See Notice of Motion for Summ. J. by Defs., City of Vineland, Joseph Romano and John P. Gallo at 1 (filed Aug. 6, 1999); Notice of Motion for Summ. J. by Defs., Mario Brunetta, Paul Letizia, John Fresne and Sennis [sic] D’Augostine at 1 (filed Aug. 6, 1999). Because both motions for

summary judgment rely on substantially similar grounds, and because Santiago has submitted only one brief in opposition to the motions for

summary judgment, I shall consider the merits of the motions jointly, where appropriate. This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331, 1343, and 1367. For the reasons set forth below, I shall grant in part and deny in part the Defendants’ motions for

summary judgment. I. BACKGROUND The issues in this case are presented within the framework of three overarching factual events:

(1) Santiago’s discharge from his position as a Vineland special law enforcement officer; (2) the City of Vine-land’s failure to hire Santiago as a police officer; and

(3) Santiago’s subsequent arrest for unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (West Supp.2000). On September 3, 1992, Plaintiff, Luis A. Santiago, who is Hispanic, applied for the position of special law enforcement officer in the City of Vineland. See Pl.’s App. to Br. in Opp. to Motion for Summ. J. (“Pl.’s Ex.”) Vol. I (Vineland Special Police Applicant Investigation) at 1. As part of the application process, Dr. Donald Babcock of the Vineland Guidance Center evaluated Santiago, found him “psychologically fit,” and recommended him for the position.

See App. to Br. in Supp. of Mot. for Summ. J. by Defs. City of Vineland, Joseph Romano and John P. Gallo (“Defs.’ Ex.”) 2 at 7 (referencing Jan. 18, 1993 Babcock evaluation). On April 26, 1993, Luis A. Santiago was appointed as a special law enforcement officer of the City of Vineland. See Pl.’s Ex. Vol. I (Oath of Office, dated April 26, 1993). The post is for a term not to exceed one year and the appointment “may be revoked by the local unit for cause after adequate hearing.” N.J.S.A. 40A:14-146.13 (West 1993). Santiago was reappointed to the position three separate times. See Pl.’s Ex.

Vol. 1 (Oaths of Office, dated April 25, 1994, May 22, 1995, and Jan. 29.1996). During his tenure as a special law enforcement officer, Santiago applied for a position with the Cumberland County Sheriffs Department, for which he underwent another psychological evaluation with Dr. Babcock. See Defs.’ Ex. 32 at 1. On July 20, 1995, Dr. Babcock reported his psychological evaluation of Santiago, which included the following: Mr. Santiago was married in June[,] 1992 and separated in May, 1994. He claims financial and communication problems in the marriage which had minor domestic violence.

He denied hitting but admitted grabbing. He felt she also had a temper. There will not be a reconciliation. There have been reports that he is physically abusive to his wife. Id. at 2. In addition, Dr. Babcock reported that: [Tjhere is a real disturbing influence in his emotions at this time.

This report compared with an earlier one conducted with him when he was applying for a position in January[,] 1993 as a Class I officer for the Vineland Police Department — comparing the two results it can be seen that the break up of the marriage and perhaps other factors have contributed to a real change in his overall personality and emotional performance .... There is a lot of ambivalence in the handling of his aggression. There are times that he appears to be overly charming and wants everybody to like him and there are other times that he can act out emotionally, maybe even violently....

To all of this it is felt that he has a personality structure which would be detrimental to a law enforcement agency, to the general public and indeed himself. It is felt that the big change in him has made him unsuitable and unfit for carrying out the duties of a police officer at this time. Perhaps after his situation is cleared up, in his marital situation, he may be in a much better emotional state than he is at this time, but certainly at this writing, he would not be considered suitable for a police department. Id. at 3-4. Dr.

Babcock did not recommend Santiago for the position with the Cumberland County Sheriffs Department because, according to Dr. Babcock’s report, “Santiago is not considered emotionally fit to carry out the duties of a law enforcement officer.” Id. at 4. A week after the date of the report, Santiago applied to the Vineland Police Department for the position of police officer. See Pl.’s Ex. Vol. I (Application, filed July 27, 1995). He placed twelfth on the New Jersey Department of Personnel’s August 25,1995 “Certifications of Eligibles for Appointment” list (“Eligibles List”). See Defs.’ Ex. 11 at 2.

On August 30, 1995, the Vineland Police Department recommended for hire four individuals, other than Santiago, the last of whom was ranked eleventh on the Eligibles List. See Defs.’ Ex. 12. As the twelfth candidate on the list, Santiago was not considered for the August 30,1995 hiring. Consistent with standard application procedure within the Police Department, Sergeant John A. Fresne of the Vineland Police Department investigated Santiago’s background and on September 15,1995, he filed his report with the Department. See Defs.’ Ex. 2.

According to the report, it was Sergeant Fresne’s opinion and recommendation that: The applicant [Santiago] has had several disciplinary actions while he has been employed by this department. These actions include excessive speed in a police vehicle, sleeping while on duty, and being discourteous to a police officer and city officials of West Cape May. Although he has only received one letter of reprimand for sleeping while on duty, these allegations are indications that the applicant is immature and that there will be disciplinary problems.

The applicant has been attempting to gain employment from several different agencies with the latest being the Cumberland County Sheriffs Department. The applicant was sent for a psychological evaluation and it was determined that he is not psychologically fit to be a police officer and he was therefore turned down for the position. Considering all of the above presented facts, I cannot recommend the applicant for the position of police officer. If in time, the applicant matures and he is reevaluated and determined to be psychologically fit, I would reconsider my opinion and recommendation. Id. at 14.

In early 1996, Santiago placed third on the New Jersey Department of Personnel’s January 22, 1996 Eligibles List. See Defs.’ Ex. 13. According to the deposition testimony of Sergeant Fresne, two days following the date of the Eligibles List, on January 24, 1996, Santiago was interviewed for the position of Vineland police officer. See Defs.’ Ex. 37 (John Fresne Dep.) at 89. On January 25,1996, Chief of Police Mario R. Brunetta, Jr. recommended for hire four individuals other than Santiago. See Defs.’ Ex. 14 at 1.

A subsequent letter by Brunetta explained that Santiago, among others, was not considered for appointment because he had failed to respond to a certification notice signaling his interest and intent to remain eligible for hire. See Defs.’ Ex. 15 at 1. In his deposition, Santiago testified that he had indeed failed to respond to the notice for the January, 1996 hiring. See Defs.’ Ex. 35 at 41-43. According to Santiago, at some point in January, 1996, a detective from the police department brought Santiago a cartoon drawing that had been posted at the Vine-land Police Department. See Pl.’s Br. at ¶ 62.

The cartoon is entitled “A Portrait of Spec. Santiago (Animal Control Lover)” and depicts Santiago as obese, with sinister eyes and a long mustache. See Defs.’ Ex. 28. In the cartoon, the artist depicts Santiago as wearing bunny slippers, which the drawer calls “Roadkill-Takes His Work Home” and carrying both a “Child Size [sic] Radio For Those ‘Wanna Be Cops Moments’ ” and a forked object, referred to as “Unauthorized Equip. For Dangerous Attacks from Killer Squirrels.” Id.

In addition, the cartoonist points to dark circles or bags under the subject’s eyes, noting the “Hard Strenuous Nights Studying For His Psych” and, at the top of the drawing, the cartoonist quips, “Good Luck on Your Psych!!!” Id. Santiago testified that, because there was no reference to his race in the cartoon, he did not interpret its posting to be harassment on the basis of his race. See Pl.’s Ex. Vol. II (Santiago 12/30/1998 Dep.) at 135. As an Hispanic individual, however, he was offended by the cartoon. See id. at 136.

Santiago testified that he did not report the cartoon to anyone within the Vineland Police Department. See Defs.’ Ex. 52 (Santiago 12/30/1998 Dep. at 71). A few weeks later, on February 14, 1996, Santiago was discharged from his job as a special law enforcement officer. The reasons for his discharge and the manner in which it occurred are disputed.

According to the Defendants, in November, 1995, Sergeant Dennis D’Augostine and a colleague not a party to this suit met with a confidential informant, named, for purposes of this case, “Manny.” “Manny” told the police officers that approximately one and one-half years before, in 1994, Santiago and his twin brother, Angel, who was also a special law enforcement officer for the City of Vineland, were involved in the drug operation of Freddy Oquendo, a person known to the detectives to be involved with drugs. See Defs.’ Ex. 4 at 1-2.

According to the intelligence report written by D’Augostine, “Manny” was a reliable informant, whose information had led to seventeen previous narcotic-related arrests. See id. at 1. According to the report, “Manny” stated that “he/she personally observed one of the Santiago brothers in possession of cocaine at Tony’s Pizzeria” but that he did not know if either Santiago or his brother, at that point in time, continued to assist Freddy Oquendo in his drug operation. Id. at 1-2.

A few months later, on January 24,1996, the same day Santiago was interviewed for the job of Vineland police officer, D’Augos-tine learned of Santiago’s status as a police officer applicant and, according to the testimony of Sergeant Fresne and Chief Mario Brunetta, he informed both Fresne and Brunetta of the drug-related information he received concerning Santiago. See Defs.’ Ex. 37 (John Fresne Dep.) at 48; Defs.’ Ex. 41 (Mario Brunetta, Jr. Dep.) at 67-68.

Brunetta testified that he directed D’Augostine to conduct an investigation to determine whether any additional information regarding Santiago’s alleged narcotic involvement was available and to prepare a report. See Defs.’ Ex. 41 at 71; see also Defs.’ Ex. 8 (Vineland Police Dep’t Memo from Capt. J.A. Martinez to Sgt. D’Augos-tine stating that Chief Brunetta directs D’Augostine to follow-up and attempt to substantiate the information).

According to D’Augostine’s second report, dated February 16, 1996, at some point in the month of February, 1996, D’Augostine and two other colleagues, not parties to this suit, met again with the confidential informant, “Manny.” See Defs.’ Ex. 5 at 1. According to the report, “Manny” told D’Augostine and others that while Santiago was a Vineland special law enforcement officer, he was in possession of cocaine and was present while numerous drug transactions occurred inside Tony’s Pizzeria.

See id. at 2. “Manny” reported, moreover, that he heard Santiago request cocaine from Freddy Oquendo and then state, after he received the narcotic, that he would return with the money. See id. “Manny” also allegedly stated that on another occasion, outside the Pizzeria, Santiago and “Tony,” the alleged nephew of Freddy Oquendo, were seated in a Tony’s Pizzeria delivery truck when Tony told “Manny” that they were going to deliver cocaine. See id. All of the reported events allegedly occurred one and one-half to two years before the date of the report; “Manny” had no current information on Santiago. See id. at 1.

According to the Defendants, on February 14, 1996, after receiving the updated information, Chief Brunetta, believing that Santiago was an “at will” employee, ordered Sergeant Letizia to discharge Santiago from his position as a special law enforcement officer with the City of Vine-land. See Defs.’ Ex. 41 at 78. According to the deposition testimony of Sergeant Letizia, he met with Santiago on February 14, 1996 and terminated Santiago’s employment with the City of Vineland because certain “detrimental information” had surfaced regarding Santiago. See Defs.’ Ex. 38 (Letizia Dep.) at 25-28.

Santiago testified that, although Letizia told him that in the course of the background investigation it had been discovered that Santiago was involved in narcotics activity, Santiago already knew of the allegations, possibly because his brother, Angel Santiago, told him. See Defs.’ Ex. 35 (Santiago Sept. 15, 1998 Dep.) at 79-80. According to the deposition testimony of Letizia, he informed Santiago that he was to contact Captain Martinez for further information. See Defs.’ Ex. 38 (Letizia Dep.) at 26.

Later that same day, while Santiago stood on a street corner outside the police station, Chief Brunetta approached Santiago to explain the circumstances of Santiago’s discharge. See Defs.’ Ex. 35 (Santiago Sept. 15,1998 Dep.) at 87; Defs.’ Ex. 41 (Brunetta Dep.) at 78. In their brief conversation, Brunetta explained that he had made the determination to discharge Santiago based upon the narcotic information provided by Sergeant D’Augostine. See Defs.’ Ex. 41 (Brunetta Dep.) at 79.

Brun-etta testified that while Santiago told Brunetta that the allegations were not true, Santiago was not afforded a formal hearing on the allegations that he was, at one time, involved in the sale of narcotics. See id. at 79, 81. Brunetta testified that neither he nor any officer at his direction asked Santiago to respond to the allegations against him. See id. at 78. The following day, Santiago and his brother, Angel, met with Captain Martinez and Sergeant John Fresne regarding the termination, and surreptitiously tape-recorded the meeting.

In this meeting, Santiago contends that Captain Martinez specifically stated that he would not “discuss the merit[s]” of the discharge. Pl.’s Br. at 17 (citing Defs.’ Ex; 10 (Transcript of Meeting) at 2). On February 23, 1996, the New Jersey Department of Personnel sent Santiago a Certification Disposition Notice informing him that his name had been removed from the Eligibles List because he had “failed to respond to the certification notice as required.” Defs.’ Ex. 16 at 1. In response, Santiago sent a letter of appeal, seeking reinstatement to the Eligibles List for the position of Vineland Police Officer.

See Defs.’ Ex. 17 at 1. In the letter, Santiago stated that: I have received two notices of certification. The first one being August of 1995 at which time I responded to the notice stating that I was very much interested in the position. I then received a second notice on [sic] January of 1996 for the same position, at which time I did not feel it was necessary to send a second letter of interest. Id.

Approximately one month later, on April 8, 1996, Santiago filed a Charge of Discrimination with the Equal Employment Opportunity Commission, claiming that he had been discriminated against by the Vineland Police Department and Chief Mario Brunetta[, Jr.], solely on the basis of disability. See Defs.’ Ex. 21 at 1. Specifically, Santiago claimed that the Vineland Police Department and Brunetta told him that he was “terminated and refused hire as a Police Officer because of an allegation of drug activity made by Respondent’s Narcotic Unit.” Id.

Moreover, Santiago alleged that he was unlawfully discriminated against “based on a Perceived Disability” and “denies that he was ever involved in any drug activity and further alleges that despite his diligence and hard work he was terminated from same and refused hire as a Police Officer.” Id. That same week, Santiago was restored to the Eligibles List for the police officer position. See Defs.’ Ex. 18 (dated April 15, 1996) at 1.

On April 22, 1996, Santiago wrote to Mayor Joseph Romano, stating that he had been discharged from his position as a special law enforcement and animal control officer “without due cause” and seeking the Mayor’s assistance in receiving information from the Vineland Police Department. See Defs.’ Ex. 29 (Letter) at 1. Santiago testified that he sent a similar letter to John Gallo, the Director of Public Safety for the City of Vineland. See Pl.’s Ex. Vol I (Santiago 9/15/1998 Dep.) at 15. According to the Defendants, approximately four months later, on August 1, 1996, a citizen, Robert Carr, who resided at 129 W.

Linden Street in Clayton, New Jersey, reported to Sergeant John Fresne that he was aware that Santiago had applied to become a Vineland Police Officer and that Santiago h,ad sold marijuana to students while in high school. See Defs.’ Ex. 6 (Vineland Intelligence Report) at 1; see also Defs.’ Ex. 37 (Fresne Dep.) at 75. According to the report filed by Fresne, he confirmed that Carr worked with Santiago at the Sears, Roebuck and Co. (“Sears”), which was, at that time, Santiago’s place of employment, and that Carr attended Vine-land Senior High School with Santiago.

See Defs.’ Ex. 6 at 1; see also Defs.’ Ex. 37 at 76. Since the date of the alleged statement, however, Carr has denied that he ever gave information to the police concerning Santiago’s alleged involvement with marijuana while in high school. See Carr Aff. at ¶4 (dated July 15, 1999). On August 1, 1996, Santiago placed second on the Eligibles List for the position of police officer of the City of Vineland. See Defs.’ Ex. 19 (August 1, 1996 list) at 1. On August 13, 1996, Rudolph A. Luisi, the Director of Police, recommended five individuals other than Santiago for employment as Vineland police officers.

See Defs.’ Ex. 20 (Letter from Luisi, Director of Vineland Police, to Linda M. Dechen, Business Administrator, dated Aug. 13, 1996). In short, Santiago was bypassed. The following week, the Vineland Police Department received information from two sources that Santiago was unlawfully carrying a handgun at his job as a security officer at Sears. A citizen, Wanda Wheeler, testified that she called the police department “[b]ecause [she] had a concern that [Santiago] had brought a gun into Sears and he often mentioned about [sic] having guns in the trunk of his car.

I’m sorry, but to me that was a concern that an ordinary citizen was carrying around guns.” Defs.’ Ex. 42 (Wheeler Dep.) at 17. Sergeant D’Augostine testified that his second source was a confidential informant who “provided ... information that Luis Santiago was carrying a handgun inside Sears.” Defs. Ex. 39 (D’Augostine Dep.) at 9; see also Defs.’ Ex. 7 (police report) at 1. D’Augostine further testified that this confidential informant was “reliable” and “had been used in the past” to make arrests. Defs.’ Ex. 39 at 9.

Aware that Santiago had filed discrimination charges against him and the Vine-land Police Department, D’Augostine testified that he asked Internal Affairs Officer James Elliot to accompany him to Sears to document the event. See id. at 25-26; see also Defs.’ Ex. 40 (Elliot Dep.) at 40-41. At this point, the record contains two differing versions of the event. Interpreting the facts in the light most favorable to Santiago, what next transpired is as follows.

Upon Santiago’s exit from the Sears building, the police advised Santiago that they had received information that he was in possession of a handgun and they immediately informed him of his Miranda rights. See Defs.’ Ex. 7 (police report) at 2 and Miranda form. After Santiago consented to a search of his car, the police found a Glock nine-millimeter handgun in the trunk of the car and ammunition in the passenger compartment. See id. at 2-3 and Consent to Search form. While Santiago possessed a valid permit for the purchase of the weapon, he did not have a permit to carry it.

See id. at 2 and Permit to Purchase a Handgun & Form of Register. After the police determined that he was not taking the gun to a shooting range, a potentially exonerating exception for his failure to have a permit to carry such a weapon, the police transported Santiago to the Vineland police station and charged him with unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b). See id. at 3; see also Defs.’ Ex. 40 (Elliot Dep.) at 40. Santiago was released on his own recognizance. See id. at 3. Subsequently, the case was presented to a grand jury, which did not return a true bill.

According to Santiago, the evidence against him was fabricated and/or coerced from witnesses in retaliation for an event that occurred nearly eight years ago, for the purpose of depriving Santiago of his employment. See Pl.’s Br. in Opp. to Mot. for Summ. J. at 8. According to Santiago, on September 19, 1992, a white resident of Vineland observed an Hispanic youth vandalizing his property. See Pl.’s Ex. Vol. I. (Police Report Exs. to D’Augostine Dep.). A chase ensued, which was joined by two off-duty white police officers. See id.

According to the reports, the chase and the eventual apprehension of the fleeing youth attracted a crowd of African-American and Hispanic residents. See id. At some point, a small riot broke out between the crowd of residents and the white officers and white residents. See id. Sergeant D’Augostine was involved in the investigation of the incident. See Pl.’s Ex. Vol. I (D’Augostine 2/2/1999 Dep.) at 12. Santiago was a witness to the September 19, 1992 incident and, when questioned by D’Augostine about the events, he claims that he told D’Augostine that he did not want to give a statement. See PL’s Ex. Vol.

II (Santiago 12/30/1998 Dep.) at 179. This Court notes that, at that time, Santiago already had applied to become a special law enforcement officer of the City of Vineland. According to Santiago, D’Augostine threatened Santiago that if Santiago did not provide a statement, “[D’Augostine] was going to f — ” him because D’Augos-tine was aware that Santiago aspired to be a Vineland Police Officer. See id. at 174-75. According to Santiago, he did in fact make a statement to the police. See id.

Santiago testified that although he told the interviewing officers in his taped statement that he had not been coerced, he told two officers that if asked, he would testify that he was forced to provide information to the police. See id. at 178-79.

Santiago further testified that he believed that his termination, the failure to hire, and subsequent arrest are, “to some ... extent,” a result of D’Augostine’s threat that “he was going to f — ” Santiago, despite the fact that Santiago had little contact with D’Au-gostine in the years between 1992, the year of the Vineland uprising, and 1996, the year that Santiago was discharged from his position as a special law enforcement officer and bypassed for employment as a Vineland Police Officer. See PL’s Ex. Vol. II (Santiago 12/20/1998 Dep.) at 175-78.

Following the relevant events in this case, Santiago surreptitiously tape-recorded conversations that he had with various police officers who refer to D’Augostine as a “treacherous motherf-.” See Pl.’s Exs. Vol. I (Transcript of Conversation with T. Zatzariny) at 2. Santiago also claims that at the time the Vineland police received the information from “Manny,” the confidential informant, he was under indictment for receiving stolen property, and therefore cannot be regarded as “reliable.” See PL’s Exs. Vol.

I (Certified Judgment of Conviction, dated March 11, 1996) at 1. “Manny” received a probationary sentence and was ordered to pay restitution. See id On October 14, 1997, Santiago filed a Complaint in this Court, and, after seeking and receiving leave to file an amended complaint, filed an Amended Complaint on April 15, 1999. See Compl. (filed Oct. 14, 1997); Fourth Am. Scheduling Order (filed April 7, 1999); Am. Compl. (filed April 15, 1999). In his Amended Complaint, filed against the City of Vineland, Joseph Romano, the former Mayor of the City of Vineland, John P.

Gallo, the former Director of Public Safety of the City of Vine-land, Mario Brunetta, Jr., the Chief of Police of the City of Vineland, Paul Letizia, John Fresne, and Dennis D’Augostine, sergeants in the Vineland Police Department at all times relevant to the Amended Complaint, and John Does 1-50, Santiago alleges the following claims: (1) race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count One); (2) race discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (“NJLAD”)(Count Two); (3) deprivation of his rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988 (Count Three); (4) discrimination based upon a perceived disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq., and the NJLAD (Count Four); (5) false arrest and malicious prosecution (Count Five); (6) retaliation in violation of Title VII, the ADA and the NJLAD (Count Six); (7) breach of contract (Count Seven); (8) intentional interference with his contractual relationship (Count Eight); and (9) the tort of “outrage” (Count Nine).

The Defendants have moved for

summary judgment of the entire Amended Complaint. As will be apparent from the analysis set forth below, the task of this Court in deciding these motions for

summary judgment was needlessly complicated by the appallingly poor quality of advocacy demonstrated by the attorneys in this case. Given the disarray of the moving and opposing papers submitted by counsel, this Court has struggled mightily to sort out the issues presented. The briefs are poorly written and poorly researched. Legal analysis is frequently absent. Instead, the Court has been presented with conclusory generalizations supported by intellectual laziness. Counsel have disserved their clients’ interests, wasted the Court’s time, and needlessly protracted these proceedings. II. LEGAL STANDARD GOVERNING A MOTION FOR

SUMMARY JUDGMENT “On a motion for

summary judgment, the court must determine whether the evidence shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.1999) (citing Fed.R.Civ.P. 56(c)). “Any factual dispute invoked by the nonmoving party to resist

summary judgment must be both material in the sense of bearing on an essential element of the plaintiffs claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In opposing

summary judgment, a party ‘must do more than simply show that there is some metaphysical doubt as to material facts,’ Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence.” Abraham, 183 F.3d at 287. “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Abraham, 183 F.3d at 287. “Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party.” Abraham, 183 F.3d at 287 (citing Boyle v.

County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir.1998)). “Cases that turn crucially on the credibility of witnesses’ testimony in particular should not be resolved, on

summary judgment.” Id. If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court “will accept as true all material facts set forth by the moving party with appropriate record support.” Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir.1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir.1989)). Even where the non-moving party has failed to establish a triable issue of fact,

summary judgment will not be granted unless “appropriate.” Fed. R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(

e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with

summary judgment being granted for the mov-ants only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175. III. DISCUSSION The Defendants raise a myriad of arguments in support of their motions for

summary judgment. This Court shall address the two

summary judgment motions in the following order: (

A) Failure to Exhaust Administrative Remedies; (

B) Santiago’s Discrimination Claims on Grounds of Race, Disability and Retaliation; (C) 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988; (

D) False Arrest; (

E) Malicious Prosecution; (

F) Common Law Breach of Contract and Intentional Interference with Contractual Relationship; (

G) The Tort of “Outrage;” and (

H) Santiago’s Claims for Punitive Damages. A. Failure to Exhaust Administrative Remedies: Title YII In support of their motions for

summary judgment, the Defendants first contend that Santiago failed to exhaust his administrative remedies with respect to his claim of race discrimination under Title VII of the Civil Rights Act of 1964. Specifically, the Defendants argue that Santiago failed to submit his claim first to the Equal Employment Opportunity Commission, in violation of 42 U.S.C. § 2000e-5 (1994). Because Santiago failed to oppose the motions for

summary judgment on this ground, I shall grant

summary judgment, with respect to Santiago’s Title VII race discrimination claim, only if “appropriate.” See Fed. R. Civ. P. 56(e). Before instituting an action under Title VII, a plaintiff must timely file his claim with the EEOC and obtain a right to sue letter from the agency. See 42 U.S.C. § 2000e-5 (1994). Such conditions precedent are statutory, rather than jurisdictional, prerequisites, comparable to a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Anjelino v. The New York Times Co., 200 F.3d 73, 87 (3d Cir.1999).

Accordingly, claims under Title VII can be dismissed for failure to exhaust such administrative remedies. See Anjelino, 200 F.3d at 87-88; Knoll v. Springfield Township Sch. Dist., 699 F.2d 137, 145 (3d Cir.1983), vacated on other grounds, 471 U.S. 288, 105 S.Ct. 2065, 85 L.Ed.2d 275 (1985). A plaintiff is excused from exhausting his administrative remedies when “the acts alleged in the subsequent ... suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.l996)(quoting Waiters v.

Parsons, 729 F.2d 233, 237 (3d Cir.l984)(per curiam)); see also Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir,1984)(quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976)). In this case, Santiago filed a charge of disability discrimination with the EEOC alleging that the City of Vineland Police Department and Chief Mario Brunetta, Jr. discriminated against him, by terminating his employment as a special law enforcement officer and refusing to hire him as a police officer, based upon his “[p]erceived [disability” of drug involvement. Defs.’ Ex. 21 at 1.

In his Amended Complaint, however, Santiago alleged, among other things, a claim of race discrimination under Title VII. It is clear that Santiago is not excused from exhausting his administrative remedies with respect to his claim under Title VII because his race discrimination claim is not within the scope of either the EEOC charge or its reasonable investigation. In Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984), the appellant filed a general charge of retaliation with the EEOC and, following her termination, subsequently alleged retaliatory discharge before the District Court. See id. at 235-36.

The District Court dismissed the appellant’s complaint because she had failed first to file the retaliatory discharge claim with the EEOC. See id. at 236. The Court of Appeals for the Third Circuit reversed, holding that the appellant’s suit was not barred for failure to exhaust administrative remedies because both “the core grievance-retaliation-is the same” and, based upon the evidence in the record, the retaliatory discharge claim had, in fact, fallen within the scope of the EEOC’s investigation. See id. at 238. Subsequently, in Antol v.

Perry, 82 F.3d 1291 (3d Cir.1996), the Third Circuit distinguished Waiters, holding that an employee’s gender discrimination claim was not subsumed within the appellant’s EEOC complaint based upon disability discrimination. See id. at 1295. In so finding, the Court rejected the appellant’s argument that the disability charge encompassed the gender claim because an EEOC investigation would have revealed the gender issues. See id. at 1296. The Court held that “[t]he investigation focused, quite properly ... on the gravamen of [appellant’s] complaint-disability discrimination.

Neither the EEOC nor the [appellee] were put on notice of a gender discrimination claim.” Id. Like the Court in Antol, I find that Santiago’s Title VII claim is not within the scope of his previously filed disability discrimination charge or “the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966-67 (3d Cir.1978)(quoting Ostapowicz, 541 F.2d at 398-99); see also Robinson v. Dalton, 107 F.3d 1018, 1025-26 (3d Cir.1997).

Quite simply, the facts associated with Santiago’s racial identity are separate and distinct from those associated with his “perceived disability” based upon his alleged involvement with drugs. In addition, there are no allegations set forth in the charge that would put the EEOC on notice that Santiago was also the victim of discrimination based upon his race. Santiago checked only the “Disability” box on the EEOC charge and his allegations refer only to discrimination based upon a “[p]erceived [disability.” See Defs.’ Ex. 21; see also Mullen v.

Topper’s Salon and Health Spa, Inc., 99 F.Supp.2d 553, 556 (E.D.Pa.2000). Consequently, a reasonable EEOC investigation would not have included Santiago’s Title VII claim. Accordingly, I find that Santiago failed to exhaust his administrative remedies with respect to his Title VII claim and, therefore, I shall grant

summary judgment on Count I of the Amended Complaint. B.

Santiago’s Discrimination Claims on Grounds of Race, Disability and Retaliation Turning now to the merits of the Amended Complaint, Santiago alleges that his discharge and the Defendants’ continued refusal to hire him as a Vineland Police Officer violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 1981 and 1983, and the New Jersey Law Against Discrimination (“NJLAD”) because the actions of the Defendants were impermissibly predicated upon his race, a perceived disability, and were in retaliation for Santiago’s act of filing a charge of discrimination with the EEOC.

As a preliminary matter, the legal analysis governing claims of discriminatory treatment in the employment context under these federal and state statutes is the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and its progeny, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993). See Shaner v.

Synthes (USA), 204 F.3d 494, 500 (3d Cir.2000)(finding the Title VII McDonnell Douglas burden-shifting rules applicable in the ADA context); Stewart v. Rutgers, The State University, 120 F.3d 426, 432 (3d Cir.l997)(citing Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989))(finding McDonnell Douglas-Burdine framework applicable to claims under 42 U.S.C. §§ 1981 and 1983); Lawrence v.

National Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir.1996)(stating that the same standards and burdens of proof are applicable to NJLAD claims as are applicable to ADA claims); Cinelli v. U.S. Energy Partners, 77 F.Supp.2d 566, 573 (D.N.J.1999)(Simandle, J.)(applying framework to claims under ADA and NJLAD); Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 462, 744 A.2d 1186 (2000)(citing Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 389 A.2d 465 (1978))(finding framework applicable to claims under NJLAD).

Under the McDonnell Douglas framework, a plaintiff has the initial burden of establishing a prima facie case either by providing direct evidence of intentional discrimination or circumstantial evidence that would raise the inference that the defendant’s conduct was motivated by discriminatory animus. See Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207; see also, Reeves v. Sanderson Plumbing Prods., Inc., — U.S.-, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000).

Generally, to establish a prima facie case, the plaintiff must demonstrate that he: (1) belongs to a protected class; (2) was qualified for the position; (3) was fired or not offered the job; and (4) was replaced by a person outside the protected group. See Hicks, 509 U.S. at 506, 113 S.Ct. 2742, 125 L.Ed.2d 407. Once the prima facie case has been established, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for the adverse employment action taken against the plaintiff. See Reeves, 120 S.Ct. at 2106 (citing Burdine, 450 U.S. at 254, 101 S.Ct. 1089).

This burden is one of production, not persuasion. See id. (citing Hicks, 509 U.S. at 509, 113 S.Ct. 2742). The defendant satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge or the failure to hire. See Burdine, at 254-56, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207. It is noteworthy that the defendant need not prove that the proffered reason actually motivated its conduct. See id.

Rather, the evidence submitted by the defendant need only raise a genuine issue of material fact as to whether it discriminated against the plaintiff. See id. at 254 n. 7, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207. If the defendant is successful in meeting this light burden, the burden then rebounds to the plaintiff to prove, by a preponderance of the evidence, that the defendant’s proffered explanation is a pretext for discrimination.

See Hicks, 509 U.S. at 507-508, 113 S.Ct. 2742, 125 L.Ed.2d 407; see also Reeves, 120 S.Ct. at 2106. “[A]l-though the presumption of discrimination ‘drops out of the picture’ once the defendant meets the burden of production ... the trier of fact may still consider the evidence establishing the plaintiffs prima facie case ‘and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.’ ” Reeves, 120 S.Ct. at 2106 (quoting Hicks, 509 U.S. at 511, 113 S.Ct. 2742; Burdine, 450 U.S. at 255, n. 10, 101 S.Ct. 1089).

The plaintiff must convince the factfinder “ ‘both that the reason was false, and that discrimination was the real reason.’ ” Shaner, 204 F.3d at 501 (quoting Jones v. School Dist. Of Philadelphia, 198 F.3d 403, 412-13 (3d Cir.1999)(internal citations omitted)). The Court of Appeals for the Third Circuit has held that to discredit the employer’s proffered reason: [T]he plaintiff cannot simply show that the employee’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.

Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employee’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence” and hence infer “that the employer did not act for [the asserted] nondiscriminatory reasons.” Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994)(internal citations omitted)). With this general standard in mind, I shall now turn to Santiago’s individual claims. 1.

Race Discrimination under 1$, U.S.C. §§ 1981 and 1988 and the New Jersey Law Against Discrimination (“NJLAD”) In Counts Two and Three of the Amended Complaint, Santiago alleges that he was discharged as a special law enforcement officer and bypassed for employment as a Vineland Police Officer on the basis of his race, in violation of 42 U.S.C. §§ 1981 and 1983 and the NJLAD. Recognizing that the burden-shifting analysis of McDonnell Douglas and its progeny govern this aspect of Santiago’s case, the Defendants contend, in their motions for

summary judgment, that Santiago cannot establish a prima facie case of discrimination because he was not qualified for the position of Police Officer. The Defendants also contend that even if Santiago is able to establish a prima facie case, there are legitimate, nondiscriminatory reasons for Santiago’s discharge and bypass, including reliance on New Jersey’s employee selection administrative rule, the “Rule of Three.” Finally, the Defendants argue that Santiago is unable to establish the necessary “pretext” to survive the motions for

summary judgment. The Defendants also raise qualified immunity and various liability arguments. In opposition to the motions for

summary judgment, Santiago first contends that he was indeed qualified for the position considering, among other things, his inclusion in the Eligibles List. Conceding that the Defendants can satisfy the second prong of the burden-shifting analysis, Santiago also contends that the Defendants’ legitimate, nondiscriminatory reasons for the termination and bypass are pretext for discrimination.

For the reasons set forth below, I find that genuine issues of material fact exist on both whether Santiago was “qualified” and whether the Defendants’ legitimate, nondiscriminatory reasons for the termination and failure to hire were pretext for discrimination. I shall, however, grant in part the Defendants’ motions for

summary judgment on Santiago’s race discrimination claims on liability grounds. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.... a.

The Prima Facie Case Analysis: Was Santiago “Qualified?” Under the McDonnell Douglas burden-shifting standard, as set forth above, Santiago has the initial burden of- establishing, by a preponderance of the evidence, a prima facie case of discrimination. To do so, the plaintiff must demonstrate, among other things, that he was qualified for the position. In this case, the Defendants only contend that Santiago is unable to establish that he was qualified for the position of Vineland Police Officer because:

(1) Santiago’s inclusion in the Eligibles List did not bestow upon Santiago a right to the position of Police Officer; and (2) the psychological report by Cumberland County rendered Santiago “unqualified” for the position. Santiago contends, on the other hand, that he was qualified because he met the New Jersey Civil Service requirements, maintained a clean criminal record, was of good character, and had been reappointed a number of times as a special law enforcement officer for the City of Vine-land.

In analyzing whether Santiago was qualified for the position of a Vineland Police Officer, this Court “must confine its inquiry to the objective qualifications related to the position of police officer.” Watson v. City of Salem, 934 F.Supp. 643, 654 (D.N.J.1995)(Simandle, J.)(citing Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3d Cir.1992)); see also Sempier v.

Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.1995)(“ ‘[w]hile objective job qualifications should be considered in evaluating the plaintiffs prima facie case, the question of whether an employee possesses a subjective quality ... should be better left to’ consideration of whether the employer’s nondiscriminatory reason for discharge is pretext”)(quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990)).

This Court finds it incredible that neither party cites to N.J.S.A. 40A:14-122 (West 1993), entitled “General qualifications of members of the police department and force; temporary appointments; absences from duty,” which provides that: Except as otherwise provided by law, no person shall be appointed as a member of the police department and force, unless he: (1) is a citizen of the United States; (2) is sound in body and of good health sufficient to satisfy the board of trustees of the police and firemen’s retirement system of New Jersey as to his eligibility for membership in the retirement system; (3) is able to read, write and speak the English language well and intelligently; (4) is of good moral character, and has not been convicted of any criminal offense involving moral turpitude....

Id.; see also Watson v. City of Salem, 934 F.Supp. 643, 654-55 (D.N.J.1995)(Simandle, J.). In this case, I find that Santiago has at least raised a genuine issue of material fact that he is qualified. The

summary judgment record reveals that Santiago is a citizen of the United States, see Pl.’s Ex. Vol. I (special law enforcement officer application) at 1 (stating that Santiago was born in Vineland, New Jersey), and that he has a clean criminal record, see Defs.’ Ex. 2 at 4; Defs.’ Ex. 3 at 4. Santiago asserts, and the Defendants do not dispute, that he has a good general character. See Pl.’s Br. at 24-25. In addition, it is not disputed in this case that Santiago is not profi-dent in the English language or that he is not physically fit.

While the Defendants are correct that the mere inclusion of a candidate’s name on the Eligibles List does not confer upon him a vested right to employment, see In re Crowley, 193 N.J.Super. 197, 210, 473 A.2d 90 (App.Div.1984); see also Nunan v. New Jersey Dep’t of Personnel, 244 N.J.Super. 494, 497-98, 582 A.2d 1266 (App.Div.1990), a candidate’s right to employment is separate and distinct from the issue of whether, for purposes of a discrimination claim under 42 U.S.C. §§ 1981 and 1983 and the NJLAD, a candidate was “qualified” for the position.

In fact, while this Court does not view the regulations as dispositive of the issue of Santiago’s status as a “qualified” applicant, the New Jersey Administrative Code defines “Eligible list” as “a roster compiled or approved by the Department of Personnel of persons who are qualified for employment or reemployment.” N.J. Admin. Code tit. 4A, § 1-1.3 (Supp.l998)(emphasis added). Instead of contending that Santiago was not qualified for the position of Vineland Police Officer under one of the requirements set forth in N.J.S.A. 40A:14-122, the Defendants assert that Santiago was psychologically unqualified.

They have failed, however, to alert this Court to any mental fitness requirement for municipal police officers analogous to that of applicants for the position of state police officer. See N.J.S.A. 53:1-9 (providing that “[n]o one shall be appointed [to be a member of the State Police] who has not applied for and taken an examination to the satisfaction of the superintendent, evidence of his mental and physical fitness and ability to perform the duties of a member of the State Police”); see also State v.

State Troopers Fraternal Ass’n, 134 N.J. 393, 415, 634 A.2d 478 (1993)(“[u]nlike police officers in municipalities subject to Civil Service whose appointment and promotions are governed by the merit-appointment process, see N.J.S.A. 11A:4-1 to -16 and N.J.S.A. 40A:14-122.4, applicants, for appointments to the State Police are required to establish to the satisfaction of the Superintendent their mental and physical fitness and general qualifications”).

In fact, although neither party so argued, the State regulations governing this case provide that an appointing authority has the discretion to require all of the eligibles to undergo a medical or psychological exam. See N.J. Admin. Code tit. 4A, § 4-6.5 (Supp.1998). If that discretion is exercised, the appointing authority may only require such exams after an offer of employment has been made and prior to appointment, and may, if it so chooses, condition the offer on the results of the examination. See id.

The appointing authority must then follow an intricate procedure to compel the New Jersey Department of Personnel to remove a candidate’s name from the Eligibles List for reasons of medical or psychological disqualification. See id.

In this case, neither party provides any evidence that the City of Vine-land required psychological exams for all of the candidates named on the Eligibles List and in fact, Sergeant Fresne, in drafting Santiago’s background investigation report, relied on a psychological report conducted not in connection with Santiago’s current application but in connection with his application with the Cumberland County Sheriffs Department.

Confining my inquiry then to the “objective qualifications related to the position of police officer” as set forth in N.J.S.A. 40A:14-122 (West 1993), I find that Santiago has sufficiently raised a genuine issue of material fact that he was qualified for the position of Vineland Police Officer, b. The Defendants’ Legitimate, Nondiscriminatory Reasons Under the McDonnell Douglas burden-shifting standard, I must determine next if the Defendants have raised legitimate, nondiscriminatory reasons for Santiago’s discharge and bypass.

The Defendants have raised only one argument in support of Santiago’s discharge, namely, that a confidential informant named “Manny” reported that Santiago had in the past sold illegal drugs. In addition to that argument, the Defendants raise three others as nondiscriminatory reasons for their bypass of Santiago for hire as a Police Officer:

(1) New Jersey’s “Rule of Three,” see N.J.S.A. HA:4-8 (West 1993); N.J. Admin. Code tit. 4A, § 4d:.8(a)(3)(Supp.1999), bestows upon the Vineland Police Department the discretion to select one individual among the top three available and therefore, the bypass of Santiago was legitimate; (2) citizen Robert Carr came forward with a statement that Santiago had sold drugs in high school; and, (3) based upon the background investigation he conducted, Sergeant Fresne did not recommend Santiago for employment as a Police Officer. See Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defs.

City of Vine-land, Joseph Romano and John Gallo at 24; see also Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defs. Brunetta, Letizia, Fresne and D’Augos-tines [sic] at 13. Because Santiago has conceded, for purposes of these motions, that the Defendants have stated legitimate, nondiscriminatory reasons for the discharge and bypass, I need not address whether the Defendants have met their relatively light burden.

Moving then to the heart of this inquiry, for the reasons set forth below, I find that Santiago has sufficiently raised a genuine issue of material fact that the legitimate, nondiscriminatory reasons for his discharge and bypass are pretext for discrimination. c. Pretext for Discrimination As set forth above, at the pretext stage of the McDonnell Douglas analysis, Santiago must establish that a genuine issues of material fact exists that the Defendants’ proffered reasons for the discharge and failure to hire are false or that discrimination was more likely than not the real reason.

To discredit such reasons: [T]he plaintiff cannot simply show that the employee’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.

Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employee’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence” and hence infer “that the employer did not act for [the asserted] nondiscriminatory reasons.” Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir.2000)(quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994)(inter-nal citations omitted)).

In short, I find that Santiago has raised genuine issues of material fact such that a rational factfinder could find all of the Defendants’ proffered reasons “unworthy of credence.” Id. i.

The Narcotics Allegations In an effort to raise a genuine issue of material fact as to the information concerning his alleged involvement in Freddy Oquendo’s drug operation, Santiago contends that the information was inherently unreliable because: (1) defendant D’Au-gostine was a dishonest police officer who fabricated the allegations; and, (2) the confidential informant, “Manny,” was under indictment at the time of his report, was anxious to please D’Augostine because he was receiving threats involving his status as a confidential informant, and whose unreliability is apparent by his untruthful deposition testimony.

This Court shall address these arguments in turn. First, Santiago relies on three pieces of inadmissible hearsay for his contention that D’Augostine is dishonest: (1) officer Timothy Zatzariny told Santiago that D’Augostine was a “treacherous mother-er,” Pl.’s Ex. Vol. I (Transcript of Conversation between Santiago and T. Zatzariny) at 2; (2) officer Edgar Zatzari-ny told Santiago that unnamed superiors were “[f] — ing with a guy’s career when it’s not true,” PL’s Ex. Vol. I (Transcript of Conversation between Santiago and E.

Zatzariny) at 1; and (3) officer Frank Lo-pergolo told Santiago that at some point in time, D’Augostine had unlawfully planted evidence during a drug raid, see PL’s Ex. Vol. II (Santiago 12/20/1998 Dep.) at ISO-182. Simply stated, this supposed “evidence” is insufficient to establish pretext in this case because this Court may rely only on evidence admissible at trial. See Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.1995)(stating that

summary judgment is appropriate when “admissible evidence” fails to demonstrate the existence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law); Williams v. Borough of West Chester, Pennsylvania, 891 F.2d 458, 466 n. 12 (3d Cir.1989). In this case, the three statements are inadmissible hearsay. Santiago next argues that evidence of certain investigatory techniques employed by D’Augostine raises a genuine issue of fact that D’Augostine fabricated the drug allegations against him.

For example, Santiago submits the affidavit of James Sinclair, who stated that D’Augostine contacted him and solicited negative information on Santiago, see Sinclair Aff. at ¶ 4, and the affidavits of Robin Lynn Carney and Freddy Oquendo who state that at some point in December, 1998, D’Augos-tine told Oquendo that, in exchange for information on Santiago, D’Augostine would ensure that traffic charges pending against Oquendo were dismissed. See Oquendo Aff. at ¶ 4; see also Carney Aff. at ¶ 6. The

summary judgment record in this case reflects that before Santiago’s discharge, defendant Brunetta ordered D’Au-gostine to attempt to update the drug allegations made against Santiago by the informant, “Manny.” See Defs.’ Ex. 41 at 71; Defs.’ Ex. 8. In light of Brunetta’s order, therefore, D’Augostine’s interview of Sinclair, who was Santiago’s supervisor at Sears, was reasonable. However, D’Augostine’s contact with Carney and Oquendo in December, 1998, which was during the discovery phase of this case, is sufficient to raise a genuine issue of material fact.

In its base form, the argument made by Santiago is that D’Augostine fabricated the allegations against him. The two sworn affidavits reveal that during the discovery phase of this case, a named party to the lawsuit promised immunity from the enforcement of State laws in exchange for detrimental information concerning the plaintiff, without justification. See Carney Aff. at 6; Oquendo Aff. at 4. Santiago therefore has raised a genuine issue of material fact as to whether the Defendants’ proffered reason for his discharge and bypass, reliance on the confidential informant report, was pretext for discrimination.

Specifically, this inconsistency, as well as the others set forth below, could lead a reasonable fact-finder to conclude that D’Augostine fabricated the drug allegations against Santiago and to infer that the drug allegations were unworthy of credence. Santiago also contends that “Manny” was not a reliable confidential informant because he was under indictment for a crime at the time he allegedly reported the information concerning Santiago to D’Au-gostine.

In support of this contention, Santiago submits the judgment of conviction of “Manny,” which provides that following his December 4, 1994 arrest, on April 6, 1995, he was indicted and pled not guilty to theft, in violation of N.J.S.A. 2C:20-3, and criminal attempt, in violation of N.J.SA. 2C:5-1. See PL’s Ex. Vol. I (Judgment of Conviction) at 1. On March 11, 1996, “Manny” entered a guilty plea and was convicted of receiving stolen property, in violation of N.J.SA. 2C:20-7. See id.

In response, the Defendants simply state that the fact that “Manny” had a criminal record “comes as no surprise to anyone involved who has dealt with confidential informants connected to the drug world.” Reply Br. on behalf of Defs. City of Vineland, Joseph Romano and John Gallo at 7. This “common thread” of criminal activity among informants does not negate the fact that, at the time “Manny” provided the information involving Santiago to D’Augostine, he was under indictment for a State crime.

It follows then that “Man-ny’s” otherwise established veracity would reasonably be called into question: was “Manny’s” motive in reporting two-year-old drug allegations to win immunity from prosecution? Did D’Augostine know of “Manny’s” indictment? Clearly, these are questions this Court cannot answer at this phase of the litigation. Clearly, then, genuine issues of material fact exist with respect to whether the Defendants’ reliance on “Manny’s” tip that Santiago had been involved in Freddy Oquendo’s drug operation was a pretext for discrimination, ii.

New Jersey’s Rule of Three The Defendants also contend that Santiago does not have a cause of action for the bypass because the hiring process of August 1, 1996 conformed to the New Jersey administrative “Rule of Three.” Under that Rule, “a certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made among these eligibles.” N.J.S.A. llA:4-8 (West 1993); see also N.J.A.C. 4A:4-4.8(a)(3) (Supp.1999).

In their exhibits filed in support of their motions, the Defendants submit the August 1, 1996 Eligibles List, which ranks the relevant candidates as:

(1) Stephen M. Ce-sare;

(2) Luis A. Santiago;

(3) Hector L. Nieves;

(4) Robert P. Stanker, II; and

(5) John E. Cornish. See Defs.’ Ex. 19. By letter dated August 13, 1996, Rudolph A. Luisi, the Director of Police, recommended to the Business Administrator of the City of Vineland that the City hire as police officers Robert P. Stanker, John E. Cornish, and three other individuals listed on the Eligibles List. See Defs.’ Ex. 20. In effect, none of the top three candidates on the Eligibles List was recommended for hire.

Unlike the evidence explaining the recommendations made from the January 22, 1996 Eligibles List, there is no evidence in the record providing any justification for the possible violation of the Rule of Three. See, e.g., Defs.’ Ex. 15 at 1 (finding that, in accordance with the Rule of Three, Candidate 1 was bypassed, Candidates 2-4 did not respond to the Certification Notice, Candidate 5 was bypassed, Candidates 6-7 did not respond, and therefore Candidate 8 was hired).

Without any evidence to support the appointing authority’s possibly legitimate bypass of the top three candidates on the August 1, 1996 Eligibles List, I find that there is a genuine issue of material fact as to whether the conduct of the Defendants conformed to the Rule of Three, iii. Robert Carr Next, the Defendants assert that on August 1, 1996, Robert Carr, who resided at 129 W. Linden Street in Clayton, New Jersey, reported to defendant Fresne that he was aware that Santiago had applied to become a Vineland Police Officer and that Santiago had sold marijuana to students while he was in high school.

See Defs.’ Ex. 6 at 1; Defs.’ Ex. 37 at 75. According to Fresne, he confirmed that Carr worked with Santiago at Sears and also that Carr attended Vineland Senior High School with Santiago. See Defs.’ Ex. 6 at 1; see also Defs.’ Ex. 37 at 75.

In support of his argument that the Defendants’ proffered reasons for his bypass are pretext for discrimination, Santiago submits the affidavit of Robert Carr, Jr., wherein Carr denied “ever meeting with an officer from the Vineland Police Department ... [or] providing information that Luis Santiago, who I attended high school with, sold marijuana.” Aff. of Robert Carr, Jr. at ¶ 4. Robert Carr, Jr. states that he presently resides at the same address as was given to defendant Fresne by a “Robert Carr,” attended Vineland High School with Santiago and worked with Santiago for a period of time at Sears.

Because there is sufficient evidence to infer, for purposes of these motions, that the citizen informant named Robert Carr and the affiant are the same person, I find that Santiago has raised a genuine issue of material fact that the Defendants’ proffered reliance on the statement of Robert Carr is a pretext for discrimination. iv. The Negative Recommendation Finally, in response to the Defendants’ reliance on Sergeant Fresne’s negative recommendation for hire, Santiago argues that the background investigation conducted by Fresne was faulty in many respects.

I find that Santiago’s purported evidence of impropriety all fail to rise to the level of a genuine issue of material fact. In sum, the Defendants’ proffered reason that it relied on the negative recommendation of Sergeant Fresne, which he set forth in his report of Santiago’s background, was a legitimate, nondiscriminatory reason for the City of Vineland’s bypass of Santiago for the position of Police Officer. In Fuentes v. Perskie, 32 F.3d 759 (3d Cir.1994), the United States Court of Appeals for the Third Circuit held that to survive

summary judgment on a claim under the McDonnell Douglas framework, a plaintiff “generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Id. at 762. The Court was explicit, however, that in certain circumstances, a plaintiff need not refute every single proffered reason of the defendant: We do not hold that, to avoid

summary judgment, the plaintiff must cast doubt on each proffered reason in a vacuum. If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder. That is because the factfinder’s rejection of some of the defendant’s proffered reasons may impede the employer’s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available. Id. at 764 n. 7.

This Court, is satisfied that the Fuentes rationale is applicable in this case. In response to the Defendants’ four proffered reasons, Santiago has sufficiently cast doubt on three of the alleged nondiscriminatory reasons, enough that this Court finds that he need not discredit the Defendants’ reliance on Sergeant Fresne’s negative recommendation. In short, I find that, in light of the genuine issues of material fact that have been raised by Santiago with respect to his discrimination claims, a reasonable factfinder could discredit the Defendants’ reliance on the negative recommendation.

Accordingly, I find that, at this stage, Santiago has demonstrated the existence of genuine issues of material fact sufficient to withstand

summary judgment on the discrimination claims asserted under 42 U.S.C. §§ 1981 and 1983 and the NJLAD, as set forth in Counts Two and Three of the Amended Complaint, d. Liability of the Defendants Next, the City of Vineland and the individual defendants set forth various arguments with respect to their liability in support of

summary judgment on Santiago’s race discrimination claims under 42 U.S.C. §§ 1981 and 1983 and the NJLAD. I shall address the arguments raised under the federal and state statutes separately, and with respect to each' defendant, i. Race Discrimination in violation of 42 U.S.C. §§ 1981 and 1983 The Defendants assert three main arguments in support of

summary judgment on Santiago’s claims for race discrimination under 42 U.S.C. §§ 1981 and 1983:

(1) Santiago has not alleged that the City of Vine-land acted pursuant to a discriminatory policy or custom and therefore it cannot be liable;

(2) section 1981 does not support individual liability; and (3) individual defendants Romano and Gallo had no personal involvement in Santiago’s case and therefore cannot be liable. In opposition to these arguments, Santiago contends that: (1) the City of Vineland maintained a custom and practice that “makes it more difficult for Hispanic officers to obtain employment and maintain such employment after obtained,” PL’s Br. at 42, and the City is liable pursuant to the acts of defendant Brunetta, a final policymaker; (2) individuals can be liable under

section 1981; and (3) the personal involvement of defendants Romano and Gallo, which subjects them to liability under

section 1981, is evidenced by the letters they received from Santiago. (

a) The City of Vineland Under

section 1983, a municipality may be hable only when the constitutional deprivation results from an official policy or custom. See Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir.2000). The same policy or custom requirement is necessary to subject a municipality to liability under

section 1981. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Smith v. Chicago Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1148 (7th Cir.1999); Meachum v. Temple Univ. of the Commonwealth Sys. of Higher Educ., 42 F.Supp.2d 533, 539 n. 7 (E.D.Pa.1999); Reynolds v. Borough of Avalon, 799 F.Supp. 442, 444 n. 1 (D.N.J.1992)(Gerry, C.J.). In this case, Santiago alleges first that the City of Vineland maintains a practice that “makes it more difficult for Hispanic officers to obtain employment and maintain such employment after obtained.” Pl.’s Br. at 42.

The only example contained in Santiago’s brief, although not specifically cited in support of his argument that the City of Vineland maintained a policy or custom of discrimination, is the case of Nicholas Borrero, an Hispanic individual, who, according to Santiago, was listed as the first candidate on the Eligi-bles List and bypassed. See Pl.’s Br. at 14-15.

According to the deposition testimony of defendant Brunetta, he did not recommend Borrero for a position within the department because “to some degree [Borrero] falsified the application,” but Borrero subsequently was offered a job by the appointing authority. See Pl.’s Ex. Vol. II (Brunetta Dep.) at 54, 66. Because Santiago points to a decision made by Brunetta in another case, the City of Vine-land can only be liable on this ground if Brunetta is found to be a final policymaker of the City.

In support of his conclusory contention that Brunetta is a final policymaker of the City of Vineland, Santiago merely states that “defendant Brunetta was acting at all times under authority granted to him by N.J.S.A. 40A:14-118....” Pl.’s Br. at 18. In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court held that, for purposes of

section 1983, a single decision by a final policymaker could, under appropriate circumstances, establish municipal liability. See id., 475 U.S. at 480, 106 S.Ct. 1292. The United States Court of Appeals for the Third Circuit has instructed that “a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990)(citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990)); accord Woodwind Estates, Ltd. v. W.J.

Gretkowski, 205 F.3d 118, 126 (3d Cir.2000). “In order to identify who has poli-cymaking responsibility, ‘a court must determine which official has final, unreviewable discretion to make a decision or take an action.’” Bielevicz, 915 F.2d at 850 (quoting Andrews, 895 F.2d at 1481); accord Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 269 n. 16 (3d Cir.1995) This determination is based upon state law. See City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988); Andrews, 895 F.2d at 1481.

In this case, Santiago merely cites N.J.S.A. 40A:14-118 (West 1993) for the proposition that Brunetta is a final policymaker for the City of Vineland. That provision provides, in relevant part, that the head of the police force, if appointed by the governing body of the municipality and “pursuant to policies established by the appropriate authority” shall: a. Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel; b. Have, exercise, and discharge the functions, powers and duties of the force; c.

Prescribe the duties and assignments of all subordinates and other personnel; d. Delegate such of his authority as he may deem necessary for the efficient operation of the force to be exercised under his direction and supervision; and e. Report at least monthly to the appropriate authority in such form as shall be prescribed by such authority on the operation of the force during the preceding month, and make such other reports as may be requested by such authority. Id.

The statute clearly does not provide that the Chief of Police for the City of Vineland has unreviewable discretion to hire and fire Vineland Police Department employees. In fact, the statute provides that the head of police acts pursuant to the policies promulgated by the “appropriate authority,” which is defined by the statute as “the mayor, manager, or such other appropriate executive or administrative officer, such as a full-time director of public safety....” Id. Santiago provides no other argument or authority that Brunetta is a final policymaker.

Accordingly, I find that Santiago has failed to point to any evidence in the

summary judgment record which would lead a factfinder to conclude that Brunetta was a final policymaker for the City of Vineland. Because Santiago has failed to raise a genuine issue of material fact as to Brunetta’s status, I shall grant the motion of the City of Vineland for

summary judgment on Santiago’s race discrimination claim pursuant to 42 U.S.C. §§ 1981 and 1983. (

b) The Individual Defendants Relying on the unpublished decision of Behrens v. Rutgers Univ., No. 94-CV-358, 1996 WL 570989 (D.N.J. March 29, 1996), Defendants Brunetta, Letizia, Fresne and D’Augostine contend that Sections 1981 and 1983 do not support the liability of individual defendants in their personal capacities. Santiago does not raise any argument with respect to the individual defendants.

Acknowledging that an unpublished decision has no prece-dential value before this Court and that the clear weight of authority is to the contrary, I find that the individual defendants may be held liable in their individual capacities under 42 U.S.C. §§ 1981 and 1983. As a preliminary matter, “[p]ersonal-capacity suits ... seek to impose individual liability upon a government officer for actions taken under color of state law....” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991). It is well-established that an individual defendant can be liable in his or her individual capacity under

section 1983 if the individual is personally involved in the alleged wrongs. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Id. Because individual liability under

section 1983 is well-established in this Circuit, the remainder of my analysis shall focus on individual liability under

section 1981. In Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir.1996), the United States Court of Appeals for the Third Circuit held that individual employees cannot be liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-l et seq. See id. at 1078. The Behrens decision, issued approximately eight months before Sheridan, predicted the Title VII analysis of the Third Circuit and held that individual defendants cannot be liable under Title VII. See id., 1996 WL 570989, at *8. Mistakenly, however, the Behrens Court assumed without deciding that the

section 1981 and 1983 analyses were identical to Title VII and held that an employer’s agent may not be held individually liable únder §§ 1981 and 1983 as well. See id. The clear weight of authority finds Title VII and

section 1981 distinguishable. For example,

section 1981 applies to a broad range of contractual relationships while Title VII is limited to discrimination in the workplace only. See Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F.Supp.2d 27, 33 (D.D.C.1999). More importantly, the statutory language of Title VII clearly imposes liability only upon “employer[s],” as defined by the statute, while

section 1981 does not contain such a limitation. See 42 U.S.C. § 2000e(b) (1994); see also Sheppard, 59 F.Supp.2d at 33; Dalton v. Jefferson Smurfit Corp., 979 F.Supp. 1187, 1202 (S.D.Ohio 1997). Moreover, the Third Circuit has found that “[s]ection 1981 is a federal civil rights remedy ... in the nature of a tort remedy” and therefore individuals who are personally involved in the discrimination against the plaintiff may be held liable. Al-Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3d Cir.1986); see also Hearne v.

Board of Educ. of the City of Chicago, 185 F.3d 770, 776-777 (7th Cir.1999)(finding individual defendant entitled to dismissal of suit against him in his individual capacity because he had no personal role to play in the case); Allen v. Denver Public School Bd., 928 F.2d 978, 983 (10th Cir.1991)(“[a] claim seeking personal liability under

section 1981 must be predicated on the actor’s personal involvement”); Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986)(finding that individuals- may be held liabl

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