A long-time New Jersey police department employee applies for a promotion to captain. On the promotional exam, he scores higher than any other applicant. He isn’t promoted. His consolation prize, however, is a jury verdict of more than $1.2 million in state court last month.

In Downing v. Borough of Roselle and Chief Gerald Orlando, Bradley Downing, a former police officer, sued his former employer and supervisor for, among other things,  race discrimination and failure to promote. Downing, who is black, earned the highest score on the promotional exam to become a Captain in the police force. However, shortly before and after the exam scores were announced, Downing’s supervisor, who is white, disciplined Downing for allegedly minor offenses and then failed to recommend Downing for promotion.

Downing sued and the case eventually went to trial. Following a jury trial, Downing was awarded a total of $1,278,240, including $250,000 in punitive damages.

In motions filed after the trial, the defendants claimed that several of the trial court’s evidentiary rulings and actions prejudiced their case, including: (1) the court’s apparent refusal to allow evidence of the racial composition of the Borough Council, the entity that decided who would receive the promotion to Captain; and (2) the court’s questioning of a witness in front of the jury about a racially charged flyer pertaining to another candidate for the Captain position, whom Downing’s supervisor had recommended for promotion. The defendants argued that the flyer was hearsay evidence, extremely prejudicial, and should not have been admitted at trial. Whether the defendants’ post-trial motions and/or appeals are successful remains to be seen.

The Downing case illustrates the uncertainty inherent in a trial. While parties can file motions in limine, and raise objections at trial, there is no guarantee what evidence will come in and what evidence will be kept out. Surely the defendants in this case did not anticipate being barred from presenting evidence they considered critical to their case, or that the court would question a witness about a damaging, allegedly hearsay document.

 

 

 

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Photo of Martin W. Aron Martin W. Aron

Martin W. Aron is a Principal and Litigation Manager of the Morristown, New Jersey, office of Jackson Lewis P.C. For over 30 years, he has represented employers in all facets of labor and employment matters.

Mr. Aron has represented employers in cases involving…

Martin W. Aron is a Principal and Litigation Manager of the Morristown, New Jersey, office of Jackson Lewis P.C. For over 30 years, he has represented employers in all facets of labor and employment matters.

Mr. Aron has represented employers in cases involving claims of discrimination on the basis of age, sex, sexual harassment, race, national origin, religion, sexual orientation and disability. He is also experienced in handling claims that arise under various state and federal statutes involving diverse issues such as family medical leave, whistleblowing, wage and hour regulation, unlawful competition, violation of restrictive covenants and theft of trade secrets.

Prior to joining Jackson Lewis, Mr. Aron was Co-Chair of the Labor & Employment Group for an Am Law 100 law firm.

Mr. Aron regularly litigates in state and federal courts, administrative agencies and arbitration forums for both unionized and non-union employers. He is recognized by his peers as an experienced trial attorney, having achieved the designation of Certified Civil Trial Lawyer from the New Jersey Supreme Court. Mr. Aron is a frequent lecturer on labor and employment issues. He is also certified as a Senior Professional of Human Resources (SPHR).

Mr. Aron advises both Fortune 100 companies with national and international operations as well as colleges, universities and emerging companies. He advises employers in a wide range of industries, including telecommunications, insurance, pharmaceuticals, retail, manufacturing, as well as nonprofit institutions.