SCOTT W. JOHNSON et al. v. MOUNT LAUREL TOWNSHIP, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3589-04T23589-04T2

SCOTT W. JOHNSON and

JENNIFER L. JOHNSON,

Plaintiffs-Appellants,

v.

MOUNT LAUREL TOWNSHIP; POLICE

DEPARTMENT OF MT. LAUREL;

POLICE CHIEF DAVID HAAS; DEPUTY

POLICE CHIEF DENNIS MOFFETT;

TOWNSHIP MANAGER PATRICIA HALBE;

LIEUTENANT ROBERT MARTER;

SERGEANT PETER SULLIVAN; and

SERGEANT STEVEN DEMOFONTE.

Defendants-Respondents.

 
_______________________________________

Argued September 13, 2006 - Decided September 27, 2006

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Burlington

County, Docket No. BUR-L-2206-03.

Mark J. Molz argued the cause for appellant

(Mr. Molz, attorney; Stephen Cristal,

on the brief).

Aileen F. Droughton argued the cause for

respondent (Traub Eglin Lieberman Straus,

attorneys; Ms. Droughton, of counsel

and on the brief).

PER CURIAM

Plaintiff Scott Johnson appeals from the order of the Law Division granting defendants' motion for summary judgment, thereby dismissing his case. Plaintiff is a former police officer from the Township of Mount Laurel in Burlington County. In his complaint, plaintiff named the municipality of Mount Laurel, as well as a number of other officials in the municipal police department, alleging that they individually and collectively violated his rights under unspecified state and federal laws.

Before addressing the merits of the appeal, we are compelled to point out a glaring procedural irregularity that made our review of the issues needlessly difficult. Plaintiff's brief did not contain individual argument point headings as required by R. 2:6-2(a)(1). As such, our determination of the legal issues raised is based on inference and deduction, rather than from a concise and clear recitation of the questions presented. Although such a deviation from the standards of appellate practice is sanctionable under R. 2:6-9, we have decided not to assess any penalties, and expect that this admonition will serve to prevent the reoccurrence of this type of substandard performance.

The salient facts are not in dispute, and were succinctly placed on the record by Judge Baldwin at the return date of defendants' summary judgment motion:

Plaintiff was hired on September 9, 1989, reprimanded on January 30, 1990. Next, April, 1995 there is an internal investigation for withholding criminal -- for withholding information. That was found to be unsubstantiated.

September 3, '99, there's another internal investigation involving his interaction with two juveniles. Again, the Township found unsubstantiated.

February 29, 2000, brought up on charges for failure to testify in a grand jury pursuant to a subpoena. Township found no willful neglect. May 25, 2000, the exact same charge against him, and he was reprimanded.

November 10, 2000, there was a complaint against him by -- for using profanity against -- in the presence of juveniles. He admitted it, but there were no disciplinary charges. December 13, 2000, there was an altercation at a local restaurant called Prospectors. Township found unsub-stantiated.

March 11, 2001, he was at a party where there was underage drinking going on. He was investigating that party. He wasn't there drinking with the underage kids. He -- but during that -- during that interaction, he openly criticized Sergeant Randall's decisions. Both Sergeant Randall and Patrolman Johnson were counseled on that, not reprimanded, but counseled.

September 7, 2001, again at Prospectors, he decided that there be no official record of the call that got him to go -- that caused him to go to Prospectors. He got a four-day suspension of that for violation of the Mt. Laurel Police Department rules and regulations.

So as of September 7, 2001, he had many, many complaints against him. They -- but they resulted in two reprimands and one counseling session and then the four-day suspension.

September 13, 2001, he was charged with a direct refusal to follow an order. That was to return to New York. He had been -- he had went to New York without authority to I guess help after 911 disaster, and he was -- he was also reprimanded for abusive language. He was also charged with abusive language. He was counseled and reprimanded, sent to a Ph.D, Dr. Rubin, and a doctor of education, Dr. Mahta (phonetic), for counseling.

March 11, 2002, there's charged with deficient review of a report. Again, he was counseled. April 26, 2002 there was damage to computer equipment that was in his control. He was counseled and reprimanded.

June 19, 2002, he was charged with insubordination, neglect of duty. There was a preliminary notice of disciplinary action issued for a 15-day suspension. The department hearing with Judge McFeeley was November 3, 2003. That sanction was upheld, but the -- rather than losing 15-day suspension, he had ordinary -- ordinary disability was -- was -- he was found to have ordinary disability which was effective March 4, '04. April, '04, he was given accidental disability retirement.

So as I understand it from reading the records, the only adverse employment action against him were reprimands which did not result in any loss of pay or any reduction in rank, a four-day suspension, and a fifteen-day suspension which was never implemented. Is that correct?

Defendant's attorney: That's correct it is defendant's understanding. Yes.

The Court: Counsel for Plaintiff?

Plaintiff's Attorney: I have no -- nothing in front of me to --

The Court: Okay.

Plaintiff's Attorney: -- say one way or the other.

The Court: The motion --

Plaintiff's attorney: I mean, I --

The Court: Yeah.

Plaintiff's attorney: I'm not going to dispute it.

Against these facts, we will now address the merits of plaintiff's argument. We glean from both the appellate brief submitted and from counsel's comments at oral argument before us, that plaintiff believes the trial court erred in granting defendants' motion for summary judgment before the end of the allotted discovery period. We disagree and affirm. It is clear from the record that plaintiff's counsel not only agreed with the motion judge's factual recitation, but also failed to indicate what additional facts he expected to obtain from any additional discovery. Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977) (plaintiff has an "obligation to demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.")

The complaint was filed on July 2003, and defendants' responsive pleading in October 2003. The court-established discovery end-date was January 22, 2005. Defendants filed this summary judgment on December 10, 2004, and it was heard and decided by the trial court on February 4, 2005. Thus, plaintiff had over eighteen months to conduct whatever discovery he deemed appropriate.

Due to the previously noted deficiencies in plaintiff's brief, we are not entirely certain of what other arguments he makes in support of this appeal. We note, as did the motion judge, that plaintiff did not oppose that aspect of defendants' motion that addressed his claims under State law. When questioned by the motion judge on these specific issues, plaintiff's counsel acknowledged that he had not filed any opposition to the following arguments raised by defendants.

THE COURT: It appears in reviewing the matter that there is no opposition to dismissing those claims by the plaintiff sounding in punitive damages for interference of economic advantage, for violation of New Jersey public policy, for negligent or intentional [infliction] of emotional distress, for common law fraud, for negligent misrepresentation, for breach of contract, and for violation of a New Jersey statute. Is that correct? Because we couldn't find any opposition to it.

* * * *

PLAINTIFF'S COUNSEL: You're talking about the state law claims?

THE COURT: Violation of New Jersey statute. That's what I have here. The -- that you allege that defendants violated New Jersey statutory law for taking wrongful employment action.

PLAINTIFF'S COUNSEL: And that the statutory law of New Jersey requires good cause for disciplinary action, and that would be -- in terms of the State law, that would be the only state law we're pursuing. The rest of it is federal law, and the 1983 and to the extent punitive damages are allowed under 1983. But it's correct to say in terms of the state law claims --

THE COURT: They're out. You're not --

PLAINTIFF'S COUNSEL: -- other than the statutory where we're not pursuing the --

THE COURT: Okay. What statute -- what New Jersey are you --

PLAINTIFF'S COUNSEL: I don't --

THE COURT: Because we didn't find any opposition to that aspect of the motion.

PLAINTIFF'S COUNSEL: Yeah. I didn't really specify in my opposition papers about --

THE COURT: All right.

PLAINTIFF'S COUNSEL: -- this -- particular statute.

Thus, the only remaining claims are those grounded on 42 U.S.C.A. 1983. As to these claims, we discern no legal basis for their assertion, and affirm substantially for the reasons expressed by Judge Baldwin in his oral opinion of February 4, 2005. We make only the following brief comments. Plaintiff was not terminated from his employment. He voluntarily sought and obtained a disability pension. As to each disciplinary incident, he was afforded the full panoply of due process rights required under the circumstances, and was never subjected to any unwarranted adverse employment action.

 
Finally, although plaintiff argues that the reprimand he received in connection with his visit to the site of the World Trade Center attacks shortly after September 11, 2001, amounted to an infringement of his First Amendment rights, he failed to plead this event as part of his cause action. Despite this fatal omission, we discern no actionable claim. Plaintiff has not established how these actions constitute a constitutionally protected activity.

Affirmed.

Although Jennifer Johnson is also listed as a plaintiff, we will refer to "plaintiff" in the singular mode, because her per quod claims are derivative.

We recognize that plaintiff was referred to counseling as a response to the disciplinary charges filed against him. However, he was never transferred, demoted, or suffered any loss in pay.

(continued)

(continued)

8

A-3589-04T2

 

September 27, 2006