JEANNETTE STREHLE v. JAMES WHELAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5817-03T25817-03T2

JEANNETTE STREHLE, AS GENERAL

ADMINISTRATRIX AND ADMINISTRATRIX

AD PROSEQUENDUM FOR THE ESTATE OF

MICHAEL STREHLE, AS AN INDIVIDUAL,

AND AS GUARDIAN AD LITEM FOR HER

MINOR CHILDREN, MICHAEL R. STREHLE

AND JENNA STREHLE,

Plaintiff-Appellant,

v.

JAMES WHELAN, CITY OF ATLANTIC

CITY, MARY SIRACUSA, ESQUIRE,

MICHAEL DUNFORD, BENN POLK,

GEORGE PUGH, JOINTLY, SEVERALLY,

AND IN THE ALTERNATIVE,

Defendants-Respondents.

________________________________________________________________

 

Submitted November 1, 2005 - Decided November 18, 2005

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-3379-01.

Clifford L. Van Syoc, attorney for appellant (Sebastian B. Ionno, on the brief).

Zeller & Bryant, attorneys for respondents (Eric J. Riso, on the brief).

PER CURIAM

Officer Michael Strehle was a police officer for the Atlantic City Police Department for about twenty-four years until November 12, 1999, when he committed suicide. In 1987, the City adopted an ordinance providing that its employees would not be randomly tested for drugs. In September 1998, the Attorney General of New Jersey issued new Drug Screening Guidelines that permitted police departments in New Jersey to subject their employees to random drug tests. After notice to all of its members, including Strehle, the Atlantic City Police Department adopted the Guidelines in December 1998.

The initial computer program used to select random names appeared to be faulty. After attempting to create the first list in August 1999, the task was terminated as a result of the apparent defects with the program. A new program was then installed. On November 3, 1999, ten names were randomly selected for drug testing from the pool of 399 officers. One name selected was Strehle's. Strehle, who was out on sick leave recovering from spinal surgery, was directed to report to the Public Safety Building for the drug test that day. He reported the next day, November 4, 1999 and provided the required urine sample. Strehle requested at that time that he be granted extended sick leave status, which was granted on November 9, 1999. Two other members of the Atlantic City Police Department who were on extended sick leave status were not included in the pool utilized for the random drug test.

Strehle tested positive for marijuana. Administrative charges were prepared, accompanied by a notice of immediate suspension from duty without pay. The charges were served on Strehle on November 15, 1999, at about 2:20 p.m., along with a notice informing Strehle that he would "have the opportunity to review the charges and evidence, and to respond either orally or in writing to the appointing authority." Strehle made phone calls to his attorney and Police Benevolent Association representative. Later that afternoon, Strehle committed suicide by hanging himself at his home.

Strehle's widow brought this action against the City and several municipal and police officials on behalf of herself, her children, and her husband's estate. Her five-count complaint alleged three causes of action: intentional infliction of emotional distress, violation of Strehle's rights under the New Jersey Constitution, and disability discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. The other two counts were derivative in nature, seeking damages for wrongful death and loss of consortium based upon defendants' alleged tortious conduct as set forth in the three substantive counts.

Defendants' summary judgment motion was heard on May 13, 2004. At oral argument, plaintiff raised additional theories, namely liability for violation of the 1987 municipal ordinance prohibiting random drug testing and for prima facie tort. Judge William C. Todd, III granted summary judgment, dismissing the complaint in its entirety. He considered all claims, including those not previously pled, on their merits. This appeal followed.

Plaintiff argues that the trial judge erred in finding that a reasonable juror could not find that defendants' willful violation of a city ordinance constituted extreme and outrageous conduct, that plaintiff did not present sufficient evidence to withstand summary judgment on plaintiff's constitutional claims, that plaintiff did not present a viable LAD claim and that plaintiff did not possess a private cause of action in tort for violation of a municipal ordinance or a prima facie tort claim. We reject plaintiff's arguments and affirm.

Because the case was disposed of by summary judgment, the trial court viewed the evidence in the light most favorable to the non-moving party, plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply the same standard on appeal. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Applying this standard, we must decide whether there was a dispute as to a genuine issue of material fact, and if there was not, whether the trial court's ruling on the law was correct. Ibid.

To establish a claim of intentional infliction of emotional distress, also known as the tort of outrage, a plaintiff must prove (a) conduct which is intentional or reckless, (b) conduct which is extreme and outrageous beyond all bounds of decency, (c) severe emotional distress is suffered by the plaintiff, and (d) the conduct complained of was the proximate cause of the emotional distress suffered. Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988). Judge Todd rested his determination on this issue on only the second prong. He determined that no reasonable factfinder could conclude that defendants' conduct was "extreme and outrageous beyond all bounds of decency." The judge stated:

I assume that one could conclude and, in fact, it might even be appropriate for me to conclude as a matter of law, that the policy that was enacted that resulted in the random testing, violated the ordinance that had been in effect in the City for in excess of 10 years. I assume one could treat that violation then as making the testings in the most general sense somehow unlawful, but even assuming that, I did not see anything in the record that would suggest that either there's a cause of action for violating an ordinance itself or that if there is, that it meets that standard of truly outrageous conduct that gives rise to the tort of intentional infliction of emotional distress. And I think that's true with respect to the various potential components that have been presented in terms of the actions that took place. The election to proceed with random drug testing generally, the action of including the plaintiff in the -- in the group of people who were subject to being tested, the action of suspending him upon receipt of a positive test.

We agree. "[I]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988).

Here, if the facts are viewed in the light most favorable to the plaintiff, the City administered random drug testing in violation of its own ordinance. While this could be viewed by a juror as unlawful, a reasonable juror could not come to the conclusion that this was extreme and outrageous conduct. The conduct at issue was not so extreme and outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Buckley, supra, 111 N.J. at 366. The City was implementing a policy from the Office of the Attorney General. Although it was contrary to the provisions of the City's ordinance, the City was following a policy promulgated by the ultimate law enforcement officer of New Jersey, the Attorney General. The policy was to ensure that the police departments in New Jersey are drug-free so they can better protect the citizens of this State. This is hardly the outrageous conduct envisioned by our Supreme Court in Buckley.

We also find no error in the judge's dismissal of plaintiff's constitutional claims, namely violations of due process. To the extent that plaintiff claims a procedural due process violation, the claim plainly lacks merit. Strehle was served with a notice of the charges and a notice of the right to be heard and to dispute them. To the extent that plaintiff claims a substantive due process violation, the argument appears to be that Strehle was deprived of his property right in continued employment by being forced to submit to a random drug test expressly prohibited by city ordinance and, even if he was properly required to submit to the test, the test was administered improperly. We reject both aspects of this argument.

The test was administered pursuant to a policy adopted by the Atlantic City Police Department pursuant to Drug Screening Guidelines promulgated by the Attorney General of New Jersey for all police departments throughout the State. The Atlantic City Police Department followed those guidelines, after it duly adopted them on notice to all members of the Department. There was no objection from Strehle or any other member of the Department or the collective bargaining representative of the members when the program was adopted. Further, although defendants acknowledge that the first program utilized had some apparent deficiencies, they terminated their use of that program without subjecting any officers to drug testing and replaced it with a proper program. The collective bargaining representative was present when the random selection that included Strehle was made, and there was no apparent deficiency. Plaintiff's contrary assertion is based on nothing more than speculation and does not raise a genuine dispute as to the good working order of the random selection program.

With respect to the LAD claim, Judge Todd properly assumed, for purposes of analysis, that Strehle was in a protected status by virtue of a "disability." See N.J.S.A. 10:5-3 and -4.1. The judge further analyzed, however, that

it's not apparent to me how one could on this record conclude that that handicap resulted in some discrimination for a couple reasons. The random testing that took place was something that was imposed not just on people who were on sick leave. It was imposed on people who were healthy and at work and I just don't know of any reason to logically conclude that either the decision to do random testing or the decision to expose employees who were out on sick leave to random testing was somehow motivated by an intention to discriminate against those who are handicapped because they're out on sick leave. In the simplest of terms, a person goes on sick leave and exposed to random drug testing is being treated the same as somebody who's not. That gets me to that one other issue. There was a suggestion that I think I noted before in the record. There were two other individuals who were out on extended sick leave who were excluded from the testing. Even assuming that occurred that doesn't in my mind lead to any logical inference that there's a discrimination against people who are handicapped because they're out on sick leave.

We agree. There is simply nothing in this record to demonstrate that Strehle was subjected to the random drug testing program because of his disability status. See Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993). There was no error in dismissing the LAD claim.

Finally, we reject plaintiff's claims based upon violation of ordinance and prima facie tort. With respect to violation of ordinance, as we have previously stated, the random drug testing conducted here was done in accordance with comprehensive standards promulgated by the Attorney General. Although there was a conflicting municipal ordinance of general application on the books, the promulgation and implementation of the drug testing standards, carefully tailored to law enforcement agencies for a particularized purpose that is specific to the members of those agencies, does not constitute tortious conduct. We reject plaintiff's reliance on Hoagland v. Gomez, 290 N.J. Super. 550 (1996). There, we merely held that violation of a local ordinance could constitute evidence of negligence. Id. at 555-56. We did not establish or sanction a per se tort claim for any conduct that was contrary to a local ordinance.

With respect to the prima facie tort claim, Judge Todd, referring to Taylor v. Metzger, 152 N.J. 490 (1998), noted that such a claim requires proof of intentional action that did not come within other traditional categories of tort liability. He further noted that in Taylor v. Metzger, the Court expressly declined to recognize the theory and that even if accepted, it would not be applicable in this case because the requisite intentional conduct was not present and the circumstances of this case fit within available traditional tort concepts.

 
As in Taylor v. Metzger, the plaintiff here has asserted intentional infliction of emotional distress and LAD claims. Even if plaintiff's allegations were "insufficient to state a[] LAD claim or a claim of intentional infliction of emotional distress, a prima facie tort cause of action should not be used to overcome those deficiencies. Prima facie tort should not be invoked when the essential elements of an established and relevant cause of action are missing." Id. at 523.

Affirmed.

(continued)

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A-5817-03T2

November 18, 2005