ABRAHAM J. MOORE v. PASSAIC COUNTY TECHNICAL INSTITUTE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2929-04T52929-04T5

ABRAHAM J. MOORE,

Plaintiff-Appellant,

v.

PASSAIC COUNTY TECHNICAL

INSTITUTE, PASSAIC COUNTY

BOARD OF EDUCATION,

SALVATORE ANTONIELLO,

RICHARD FAULKNER, DIANA

LOBOSCO, RICHARD GIGLIO,

RUBYE BAKER, and NJEA

REGIONAL 27,

Defendants-Respondents.

___________________________________

 

Submitted: February 28, 2006 - Decided June 12, 2006

Before Judges Skillman, Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-10-03.

Carlos Peay, Jr., attorney for appellant (Abraham J. Moore, pro se, on the brief).

Methfessel & Werbel, attorneys for respondents Passaic County Technical Institute, Passaic County Board of Education, Salvatore Antoniello, Richard Faulkner, Diana Lobosco, Richard Giglio and Rubye Baker (Eric L. Harrison and Tracy B. Bussel, on the brief).

Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for respondent NJEA Regional 27 (Richard A. Friedman, of counsel; Mr. Friedman and Edward M. Surez, Jr., on the brief.

PER CURIAM

Plaintiff, Abraham Moore, an African American, appeals from summary judgment dismissal of his suit against his former employer, several of its management employees and his union. Plaintiff had alleged claims of racial discrimination, harassment and retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -41; retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; negligent and intentional infliction of emotional distress; breach of contract; breach of the covenant of good faith and fair dealing; and breach of the duty of fair representation. His causes of action arose from his own claims of discrimination, his wife's claims and his assistance to his wife. We affirm.

I

In 1992 plaintiff was hired as a custodian by defendant Passaic County Technical Institute (PCTI) and, as such, was a union member represented by defendant New Jersey Education Association's local affiliate, NJEA Regional 27, pursuant to a collective bargaining agreement. Plaintiff also performed other duties for PCTI, for which he received stipends in addition to his base salary. He served as a bus driver through 2000, when PCTI outsourced that service, and as a Transportation Coordinator until he resigned that position in July 1996. Plaintiff's wife Sandra was also employed by PCTI as a custodian and bus driver.

A breakdown in the relationship between plaintiff and his superiors at PCTI appears to have begun in the fall of 1996 when plaintiff and his wife were disciplined following a PCTI and Paterson Catholic football game. According to PCTI, plaintiff and his wife had transported the students by bus to the game and rather than performing custodial duties during the game as requested, they punched out from work without permission, leaving students without a driver, and proceeded to watch the football game from the stands. Plaintiff and his wife contended that, after they refused to perform custodial duties, they were directed to punch out from work and they merely complied with that directive. As a result of the incident, which management viewed as particularly serious because it involved the safety of students at a volatile game between rival schools, plaintiff and his wife were suspended from bus driving duties for eighteen months and were assigned exclusively to custodial duties. During the suspension, the bus driving duties were absorbed by other custodian/bus drivers, including several African American employees.

After this incident, plaintiff and his wife Sandra began filing numerous complaints of discrimination, harassment and retaliation, as well as miscellaneous complaints about their working conditions at PCTI. Sandra made complaints internally to management employees at PCTI and the union; and externally to governmental entities and administrative agencies. On August 1999, she also filed a lawsuit against PCTI. Her administrative complaints were dismissed or abandoned, and her lawsuit was settled in April 2002. Her resignation from PCTI was one of the terms of that settlement.

After the 1996 incident, PCTI began to remark about the declining quality of plaintiff's work, including his frequent visits to his wife's work area when he was supposed to be in his own work area, his failure to maintain the cleanliness of his bus, his mishandling of bus runs, and his negative and confrontational attitude, including his accusations that his supervisors did not like African Americans. Over a period of years, there were also significant problems with plaintiff's absenteeism and his failure to comply with PCTI's attendance policies relating to the submission of doctors' notes and notification to superiors about intended absences from work. In the spring of 2002, PCTI sought to terminate plaintiff's employment based upon his failure to notify his superiors of the reason for his extended absence from work, which was deemed an abandonment of his position. However, PCTI reinstated plaintiff after he provided documentation from his treating physician.

In December 2002, plaintiff filed this action against PCTI, its management employees and the Passaic County Board of Education (collectively referred to as the "PCTI defendants") seeking damages for racial discrimination, hostile work environment and retaliation under LAD and CEPA. Plaintiff claimed he was subject to differential and disparate treatment in discipline, promotion and allocation of overtime despite his seniority over those who received promotions and assignments. More particularly, plaintiff contended he was denied: (1) a "promotion" into the maintenance department; (2) overtime in the summer of l999; (3) transfer to a day shift position in 1997 and February of 2000; and (4) work as a bus driver after PCTI outsourced its bus driving services in the spring of 2000. He additionally complained about being assigned to clean the girls' locker room in October 2002. Plaintiff also contended he was harassed by PCTI because his work was excessively monitored and he was disciplined for minor issues; he alleged Caucasian employees did not receive such treatment. He further claimed he was disciplined more severely for the l996 football game incident than Caucasian employees had been for what he viewed as more serious infractions. Plaintiff also asserted as a CEPA violation that PCTI retaliated against him for "writing letters about the racist treatment of minorities and complaining about the continuous harassment by his supervisors and others" and also "because of his wife's lawsuit against PCTI and others." Plaintiff asserted other statutory and common law claims against the PCTI defendants, including a claim of severe emotional distress as a result of the discrimination, harassment and retaliation that he endured while at PCTI.

Plaintiff also asserted claims against the union based on racial discrimination in violation of LAD; breach of the collective bargaining agreement; and breach of the duty of fair representation by refusing to pursue grievances on his behalf relating to his suspension from bus driving as a result of the September 1996 football game incident, denial of his shift change request, PCTI's alleged failure to promote African American employees in the maintenance department and the alleged racist comments made by PCTI's management employees.

In February 2004, plaintiff began a disability leave of absence from which he never returned. On March 5, 2004, PCTI filed tenure charges seeking to terminate plaintiff's employment based upon his chronic absenteeism and his failure to comply with PCTI's attendance policies. On March 24, 2004, defendant Board of Education determined there was probable cause to support the tenure charges and referred them to the Commissioner of Education, who then referred the charges to the Office of Administrative Law (OAL). As of June 10, 2005, the tenure charges were still pending at the OAL. The current status of the proceeding is unclear.

Discovery in the Law Division action ended on July l3, 2004. On July l6, 2004, the PCTI defendants filed a motion for summary judgment. Oral argument was adjourned several times at the request of plaintiff's counsel. Plaintiff's opposition papers were filed on September l5, 2004, and oral argument was scheduled for October 22, 2004. On October l9, 2004, plaintiff's counsel, Paula Garrick, filed a motion on short notice to be relieved as counsel and, pursuant to plaintiff's request, sought an adjournment of oral argument for plaintiff's new counsel to become familiar with the file. The adjournment request was denied by the court. Following oral argument by counsel on October 22, Judge Sokalski issued an opinion and order on November 3, 2004 granting defendants' motion for summary judgment, having determined that plaintiff failed to meet his burden under either LAD or CEPA. By order of November 5, 2004, the court relieved Garrick as plaintiff's counsel.

On November 22, 2004, plaintiff pro se filed a motion for reconsideration, enclosing a voluminous submission of documents, including discovery from his wife's litigation against PCTI from several years prior, which plaintiff claimed was "new" evidence. He also sought to amend his dismissed complaint to contain a new count regarding the tenure charges filed on March 5, 2004, contending they were motivated by racial discrimination and retaliation. The court heard oral argument on January 7, 2005, during which it allowed Sandra Moore to supplement plaintiff's arguments. By order of January l3, 2005, the court denied plaintiff's motion for reconsideration based on the reasons set forth in its previous opinion.

The union moved for summary judgment, and oral argument was held on December 3, during which plaintiff appeared pro se. The court issued an opinion and order on December l7, 2004 granting the union's motion, finding plaintiff's claims, whether sounding in breach of the duty of fair representation or under the LAD rubric of race discrimination, were lacking in evidential support and were time-barred. On January 11, 2005, plaintiff filed a pro se motion for reconsideration, relying on the same voluminous submission of documents previously filed with the court in connection with his motion for reconsideration from the PCTI defendants' order for summary judgment. Following oral argument on February 4, the court denied plaintiff's motion, a decision it memorialized in an order of February 7, 2005. This appeal followed.

II

In a pro se brief, plaintiff makes the following argument on appeal:

ARGUMENT

I WAS BROUGHT UP ON TENURE CHARGES THAT WERE UNETHICAL, SUSPENDED WITHOUT PAY SINCE MARCH 24, 2004, AND SUBJECTED TO RACIAL DISCRIMINATION, HARASSMENT, RETALIATION, AND A HOSTILE WORK ENVIRONMENT BY THE SCHOOL DISTRICT OF PASSAIC COUNTY TECHNICAL INSTITUTE (PCTI), SINCE 1996 AND HAS CONTINUED TO DATE, AND THEREFORE SHOULD NOT HAVE BEEN PENALIZED DUE TO MY RACE, CREED OR COLOR UNDER THE CONSTITUTION OF THE UNITED STATES OF AMERICA.

POINT ONE:

Appellant Has Suffered Racial Discrimination and Harassment.

POINT TWO:

The Motion for Summary Judgment - Reconsideration Motion

POINT THREE:

Appellant Has Established a Claim for Retaliation

POINT FOUR:

Appellant Established Hostile Work Environment

POINT FIVE:

Respondents' Actions Have Caused Appellant Severe Emotional Distress

In a reply brief, plaintiff's counsel contends the trial judge inappropriately denied plaintiff's former attorney's motion to be relieved as counsel prior to the return date of the summary judgment motion; erred by refusing to adjourn argument on the summary judgment motions until plaintiff retained new counsel; did not consider all the evidence supporting his claims; held him to too high a standard of practice as a pro se litigant; and erred in denying his motions for reconsideration. In an amended reply brief, plaintiff's counsel makes the following arguments:

POINT I

Plaintiff Has Established Discrimination and Retaliation Under the Continuing Violation Theory

POINT II

Plaintiff Has Established A Claim for Retaliation

POINT III

Plaintiff Was Not Allowed To Provide All Evidence To Prove [A] Case Of Disparate Treatment That Resulted In Plaintiff Having To Terminate Counsel And, Therefore, Count One Was Improperly Dismissed

POINT IV

Defendants' Actions Have Caused Plaintiff Severe Emotional Distress and Therefore Count Two was Improperly Dismissed

POINT V

Plaintiff Has Established Breach of Contract And The Covenant of Good Faith And Fair Dealing And, Therefore, Count Three Was Improperly Dismissed

POINT VI

Plaintiff Has Established A Cause of Action For Negligent Infliction Of Emotional Distress And, Therefore, Count Four Was Improperly Dismissed

POINT VII

Plaintiff Has Established That Defendants Breach[ed] His Employment Contract And, Therefore, Count Five Was Improperly Dismissed

POINT VIII

Plaintiff Has Established A Prima Facie Case Under The LAD or CEPA And, Therefore, Count Six was Improperly Dismissed

POINT IX

Plaintiff Has Established A Prima Facie Case of Hostile Workplace Environment And, Therefore, Count Seven Was Improperly Dismissed

Plaintiff requests we remand the case with an order directing the Law Division to permit him to amend his complaint to assert additional allegations of discrimination, harassment and retaliation arising from events that occurred after he filed the complaint, in particular, the tenure charges filed by PCTI in March of 2004.

III

In his November 3, 2004 opinion granting summary judgment to the PCTI defendants, Judge Sokalski provided a detailed explanation for his conclusion that plaintiff had not met his burden under either LAD or CEPA. After citing the applicable law as to discriminatory retaliation, racial discrimination and hostile work environment, the judge stated:

Plaintiff has not met his burden under either NJLAD or CEPA. Defendants could not have retaliated against plaintiff in l996 when he was suspended from his bus driving duties. This incident occurred three years before his wife's suit was commenced. It goes without saying that plaintiff could not have been retaliated against for a future event.

As to whether defendants retaliated for plaintiff's allegations of racism in the workplace, I am satisfied that defendants' employment decisions were not "adverse" within the meaning of CEPA. Defendants did not exceed their discretion under the [Collective Bargaining] Agreement in failing to assign plaintiff to the day shift or in failing to employ him in a maintenance capacity. Article V(D) of the Agreement requires seniority to be considered only in regards to layoffs and hiring, not in the assignment to the day shift. Plaintiff was not promoted to maintenance staff because one is not promoted to maintenance staff from a bus driver/custodian position. Instead, it is a separate job to which one must apply and pass a qualifying test. Plaintiff has not applied for a maintenance staff position since l993 although postings for job openings are conspicuously placed in the work area.

As to plaintiff's discharge in 2000 [due to an unexcused absence from work for more than three days without a doctor's note and rescinded without loss of back pay upon providing the note], Article IX(F) of the Agreement further states that an employee who becomes sick during the course of his employment must provide the Business Administrator a doctor's note that verifies the need for his absence if that absence will be . . . for more than three days. Absence from work for five consecutive days without an excuse is deemed abandonment of employment. Because defendants followed the plain language of the Agreement in dealing with plaintiff and because the terms of plaintiff's employment were not adversely affected, its acts were lawful.

The judge further found that plaintiff had "not provided any admissible evidence to support a claim for racial discrimination in violation of NJLAD" under Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993). He stated:

Because plaintiff has not applied for a maintenance position since l993, his claim fails under the 2nd prong of Lehmann [that he applied for a position for which he was objectively qualified]. There is no evidence to support claims that maintenance positions were reserved for whites or that whites were assigned to maintenance positions without taking the required test. There also has not been discrimination in regards to shift changes because several of plaintiff's African-American coworkers were moved to the day shift. A discrimination claim fails for lack of causation if a member of the protected class receives the job plaintiff seeks. O'Seken [v. Exxon Corp.], 2 001 WL 1715783 [(D.N.J. 2001)].

I'm also satisfied that plaintiff's removal as a bus driver is not discriminatory. Plaintiff's claim that African-Americans were punished more harshly than similarly situated whites is unsubstantiated. Plaintiff was not terminated as a result of the incident and other coworkers, including several African-Americans, assumed his duties. Because other African-Americans were given the position, the discrimination claim fails for lack of causation. O'Seken, 2 001 WL 1715783.

The trial judge additionally concluded that plaintiff's prima facie claim for hostile work environment failed "for want of causation," based on the evidence that African Americans received shift changes and moved to positions other than custodian/bus drivers. The judge noted that "[t]he lack of a causal connection between race and defendants' decisions also suggests plaintiff unreasonably believed the conditions of employment had changed because of race." Moreover, plaintiff had "never heard or witnessed the utterance of racial epithets while working for defendant PCTI." Accordingly, the trial judge concluded it was "unlikely that a reasonable member of plaintiff's race would think the environment hostile or that significant job movement was impossible."

The judge also dismissed plaintiff's claims against the union based on a failure to support a claim for breach of statutory duty of fair representation. In his December l7, 2004 opinion, Judge Sokalski explained:

The uncontroverted evidence demonstrates that plaintiff's complaint against the union arises out of a disagreement about the terms of the [Collective Bargaining] Agreement. By plaintiff's own admission, union representatives repeatedly informed plaintiff that the Agreement allows management to assign employees to various shifts at its discretion and without regard to seniority. No competent evidence suggests bad faith in interpreting the Agreement, and the Agreement is in fact susceptible to the union's interpretation. As a result, plaintiff's claim for unfair representation as to failure to pursue grievances in regards to shift changes fails under Montclair Township, 17 NJPER 22046.

By plaintiff's own admission, the union has assisted and represented plaintiff on several occasions. The union did pursue various grievances on his behalf in the past and provided plaintiff with an attorney to appeal his suspension from bus driving duties in l996. Also, union representative Kenny Krattiger spoke to the Board on at least one occasion about removing a letter of reprimand from plaintiff's personnel file.

Plaintiff's claims of improper motive by union representatives by virtue of personal relationships with board members is unsupported by any evidence and amounts to little more than fanciful speculation, especially since the union took affirmative steps [to] grieve plaintiff's complaints.

The trial judge further found plaintiff had presented no evidence to support his allegations of racially disparate treatment by the union. The union grieved plaintiff's complaints at various points in the past. Moreover, as the judge noted, plaintiff presented "no evidence that the union was substantially involved in setting or grieving suspensions or in securing shift changes for other employees."

Judge Sokalski also found plaintiff's complaints against the union to be time-barred by the six-month statute of limitations under N.J.S.A. 34:13A-5.4c. As the court noted, plaintiff's complaint was filed on December 30, 2002; his final request to change shifts was denied on January l7, 2001, more than five months outside the permitted time to file a complaint.

IV

We have painstakingly reviewed the extensive record on appeal, including the multi-volume appendix submitted by plaintiff. We will first dispose of plaintiff's claims of procedural deficiencies and bias by the trial judge. We discern no abuse of discretion by the trial court in denying plaintiff's request to adjourn argument on the summary judgment motion by the PCTI defendants to enable him to retain a new attorney. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003). The discovery period had ended, and the motion had been pending for several months. Plaintiff had more than ample opportunity to present his case through written submissions and through oral argument of counsel on the return date of the motion. The record is devoid of any evidence that the court was biased against plaintiff, or that it was less solicitous of him, appearing pro se, than it was of defense counsel. On the contrary, Judge Sokalski accommodated plaintiff's pro se status more than he was required to do, even allowing plaintiff's wife, who was neither a party nor an attorney, to make additional arguments on plaintiff's behalf.

It is also clear that the trial judge had thoroughly reviewed the record, and was familiar with the appropriate law prior to rendering his decision. We discern no judicial error in his denial of plaintiff's requests for reconsideration, as plaintiff failed to present new information or any other basis to merit reconsideration under Rule 4:49-2. See Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996); D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990). Nor was it procedurally appropriate for plaintiff to have sought to file an amended complaint to assert new allegations of discrimination after the entry of summary judgment dismissing his complaint. See Rule 4:9-1; Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 325 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998).

In determining whether there exists a genuine issue of material fact that precludes summary judgment under Rule 4:46-2, the motion judge is to consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment is appropriate when the evidence "is so one-sided that one party must prevail as a matter of law." Ibid.

On appeal, we apply the same standard as the trial court with respect to the motion record and determine whether the motion judge's ruling on the law was correct. Ponte v. Overeem, 337 N.J. Super. 425, 427 (App. Div. 200l), rev'd on other grounds, 171 N.J. 46 (2002); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We are satisfied there is more than ample basis in the record to support Judge Sokalski's grant of summary judgment to all defendants in this case, and we affirm substantially for the reasons set forth in his letter opinions. We add the following comments.

Plaintiff's allegations against the PCTI defendants of racial discrimination, harassment and retaliation under LAD and CEPA are completely lacking in evidential support. The record reflects that PCTI investigated plaintiff's complaints of discrimination, harassment and retaliation. The memoranda documenting those investigations indicate that the disputes between plaintiff and his supervisors were merely disagreements over work issues, such as performance, attendance and work assignments. In addition, the record reflects that PCTI held several meetings with plaintiff, attempting to resolve the issues he raised and to calm tensions between plaintiff and other members of the PCTI staff.

Nor do plaintiff's claims of differential discipline have a sufficient factual basis to survive summary judgment. For example, those individuals to whom plaintiff compared himself with respect to the disciplinary action arising out of the l996 football game incident were not accused of similar misconduct, insofar as they were not accused of insubordination and their infractions did not endanger the safety of the children. Moreover, PCTI had ample basis to pursue the termination action in 2002 based on plaintiff's unexcused, excessive absences from work. That the Board decided not to pursue the charges after it received plaintiff's untimely submitted medical documentation, which clearly inured to plaintiff's benefit, does not undermine its non-discriminatory motive.

Additionally, several of plaintiff's claims, such as PCTI's failure to hire him in the maintenance department when he applied in l993, his l996 resignation as Transportation Coordinator, and PCTI's denial of shift changes in l997 and in February 2000 are each discrete and isolated acts that are time-barred by the two-year statute of limitations under LAD. See Montells v. Haynes, 133 N.J. 282, 291-95 (1993) (LAD claims are governed by the two-year statute of limitations, codified at N.J.S.A. 2A:14-2, which applies to all personal injury suits); cf. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 18 (2002) (The continuing violation doctrine provides an exception to the two-year limitations period under LAD).

In addition, the record is devoid of evidence that the union discriminated against plaintiff based upon his race by failing to pursue grievances or that, in general, the union treated Caucasian members better than African American members. As the trial judge noted, the union pursued numerous grievances on plaintiff's behalf, successfully challenging disciplinary actions taken against plaintiff. Moreover, it offered him counsel with respect to the l996 football game discipline, the attempted termination in 2002 and the tenure charges in 2004. Plaintiff cannot complain in this lawsuit about the union's refusal to pursue grievances on his behalf relating to various matters such as PCTI's denial of his requests for day shift assignments, the frequent changes in his work hours, the unequal distribution of overtime assignments and an appeal from discipline he received for not cleaning his bus. Whether phrased in terms of unfair practices, breach of contract or breach of the covenant of good faith and fair dealing, between October and December 2000, plaintiff asserted these identical claims against the union in a PERC proceeding. In an opinion dated May 11, 200l, the Director of Unfair Practices rejected plaintiff's allegations and declined to issue a complaint, finding that plaintiff failed to assert any facts demonstrating a violation of the duty of fair representation on any of his charges against the union. Therefore, not only are plaintiff's claims against the union factually insufficient and time-barred, they are also foreclosed by the prior PERC decision and may not be pursued for a second time in the context of this litigation. See Hackensack v. Winner, 82 N.J. 1, 31-33 (1980) (holding that judicial determinations by administrative agencies are entitled to preclusive effect); Hennesey v. Winslow Twp., 183 N.J. 593, 599 (2005) ("Our decisions have enumerated the benefits flowing from such doctrines [as collateral estoppel and res judicata], such as 'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness.'"); cf. Olivieri v. Y.M.F. Carpet, Inc., ___ N.J. ___ (2006) (unemployment compensation determinations are not to be given collateral estoppel effect in subsequent CEPA actions). Moreover, since there has been no breach of the duty of fair representation, plaintiff cannot make out a case of discrimination against the union. See, e.g., Bugg v. Int'l Union of Allied Indus. Workers of Am., Local 507 AFL-CIO, 674 F.2d 595, 598 n.5 (7th Cir.) (to establish a race discrimination case against a union, the plaintiff must show that the company breached the collective bargaining agreement, the union permitted the breach to go unremedied, thereby breaching its duty of fair representation, and the union's actions were motivated by racial animus), cert. denied, 459 U.S. 805, 103 S. Ct. 29, 74 L. Ed. 2d 43 (1982).

The basis for plaintiff's infliction of emotional distress claims is not clear from the record. In the complaint plaintiff alleges that he "has been caused to suffer intentional infliction of emotional distress under [LAD]" and he "has been made to suffer negligent infliction of emotional distress under [LAD]." In his brief, however, plaintiff states he is asserting "independent" claims for both negligent and intentional infliction of emotional distress, although he simultaneously references LAD. In either instance, plaintiff's allegations fall far short of the type of "humiliation, embarrassment and indignity" recognized as giving rise to a claim of intentional infliction of emotional distress under LAD. See Tarr v. Ciasulli, 181 N.J. 70, 81 (2004); N.J.S.A. 10:5-3. Nor are plaintiff's allegations sufficient to withstand summary judgment under a tort theory of intentional infliction of emotional distress. See Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001) ("it 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"). The majority of plaintiff's allegations against the PCTI defendants involve common workplace complaints regarding unfair disciplinary actions, unpleasant work assignments and the denial of shift change requests. Plaintiff's allegations against the union involve merely the refusal to pursue grievances, based primarily upon its interpretation of the collective bargaining agreement. This alleged misconduct, viewed in the light most favorable to plaintiff under Brill, is not so outrageous in conduct, or so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. See, e.g., Settineri v. PNC Bank Corp., 371 N.J. Super. 537 (App. Div. 2004) (affirming dismissal of an intentional infliction of emotional distress claim that arose out of run-of-the-mill allegations of employment discrimination, based upon negative performance appraisals, reprimands and the denial of transfer requests).

The only allegation made by plaintiff against the PCTI defendants that could arguably suggest "aggravated discriminatory conduct," Griffin, supra, 337 N.J. Super. at 23-24, is the claim that PCTI supervisors used racial epithets to refer to African American employees. See Taylor v. Metzger, 152 N.J. 490, (1998) (A claim of intentional infliction of emotional distress based upon an employer directly referring to an African American employee as a "jungle bunny" was sufficient to withstand a motion for summary judgment). Plaintiff, however, never heard or witnessed the utterance of any racial epithets while working for PCTI. Nor did plaintiff present evidence that any racial comments were made in the presence of other African American employees. As the court noted, plaintiff merely alleged a belief that defendants were racist based on a newspaper article in which one of the defendants allegedly referred to an unidentified African American as a "n-r." The court found there was no substantiation of this claim anywhere in the record.

Plaintiff's negligent infliction of emotional distress claim also fails against both the PCTI defendants and the union. Plaintiff is barred from pursuing any negligence claims against PCTI because "[t]he New Jersey Workers' Compensation Act, N.J.S.A. 34:15-8, provides the exclusive remedy by which an employee may recover for injuries caused by workplace negligence." Smith v. Exxon Mobil Corp., 374 F. Supp. 2d 406, 424 (D.N.J. 2005) (dismissing a claim of negligent infliction of emotional distress). As to the union, plaintiff has not established any conduct that breached a duty of care, nor did he present any evidence to support a conclusion that he suffered severe emotional distress as a result of the union's alleged failure to pursue his grievances. On the contrary, plaintiff's psychological experts attributed plaintiff's emotional distress to a combination of stress in his personal life, and stress caused by the PCTI defendants. See Williamson v. Waldman, 150 N.J. 232, 239-40 (1997) (To prove a claim of negligent infliction of emotional distress, a plaintiff must establish: (1) a duty of care; (2) breach of that duty; (3) causation; and (4) damage in the form of severe emotional distress that was reasonably foreseeable.).

To summarize, we are satisfied there was ample basis in the record for the summary judgment dismissal of all of plaintiff's statutory and common law claims against the PCTI defendants and the union. We also perceive no bias by the court or judicial error in the challenged rulings.

Affirmed.

 

Plaintiff named as defendants Passaic County Technical Institute's supervisors Salvatore Antoniello (Supervisor of Maintenance and Custodians) and Richard Faulkner (Grounds Supervisor), Superintendent Diana Lobosco, Business Administrator Richard Giglio and Affirmative Action Officer Rubye Baker.

There remained limited bus driving assignments for PCTI's custodians/bus drivers following the outsourcing. In his appellate brief plaintiff admits that he drove buses for a few months in 2002.

It appears from the record that pursuant to a July 22, 2004 conference call with ALJ Weiss, there was an agreement between counsel to place the tenure proceeding on inactive status pending the outcome of the Superior Court case, during which plaintiff would retain the status quo of suspension without pay. The record also contains an April 17, 2005 motion by Kathleen Dunnigan to withdraw as plaintiff's counsel in the OAL proceeding.

Plaintiff does not appear to be appealing from dismissal of his claim of negligent supervision. That claim, however, would also fail based upon the exclusivity of the Workers' Compensation Act.

(continued)

(continued)

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A-2929-04T5

June 12, 2006