MICHAEL STOECKER v. NORTH HUDSON REGIONAL FIRE & RESCUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0337-08T10337-08T1

MICHAEL STOECKER,

Plaintiff-Appellant,

v.

NORTH HUDSON REGIONAL FIRE &

RESCUE and BRIAN McELDOWNEY,

Defendants-Respondents.

__________________________________

 

Argued September 30, 2009 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3357-06.

John E. MacDonald argued the cause for appellant (Stark & Stark, P.C., attorneys; Mr. MacDonald, of counsel and on the brief; Megan M. Christensen, on the brief).

Thomas B. Hanrahan argued the cause for respondents (Thomas B. Hanrahan & Associates, attorneys; Mr. Hanrahan, of counsel and on the brief; David J. Pack, on the brief).

PER CURIAM

Plaintiff Michael Stoecker appeals from an order of summary judgment entered after the close of discovery and the dismissal of his complaint alleging his employer, North Hudson Regional Fire & Rescue (defendant or Department) and its then-Deputy Chief, Brian McEldowney, violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff argues the motion judge's findings were flawed and maintains summary judgment was inappropriate, as the record presents genuine issues of material fact. Following our consideration of the arguments on appeal, in light of the record and applicable law, we affirm.

I.

A.

The facts are derived from evidence submitted by the parties in support of and in opposition to the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). The chronology of events discussed below is relied upon by plaintiff to support his claims.

Plaintiff was hired by defendant as a firefighter and assigned to Engine 12, Battalion 3, under the command of Captain James Stelman and directly supervised by Battalion Chief Charles Severino. On May 9, 2001, plaintiff's first day of active service, Severino allegedly said, "How would you like to be my driver and when I ask you to blow me, you do it[?]" "Moments later" plaintiff saw Severino touch Firefighter Dean Manion's "groin and then rub his genitals against [Manion's] buttocks . . . ." Afterwards, Manion approached plaintiff and stated Severino "like[d plaintiff] because he likes big guys." Plaintiff "very loudly" said to Manion that "if anyone touched [him, he] would break that old man-nobody touches me." Plaintiff claims that "Stelman was present throughout [the events] and witnessed everything, and [he] could not have missed hearing" plaintiff's statements.

On May 29, 2001, while at work, plaintiff suffered a calf injury. Plaintiff was examined by a doctor, who cleared him to return to duty. Plaintiff objected and the doctor stated: "You are not getting a free day off[,] you're going back to work." Plaintiff believes he was forced to return to work, although injured, because the physician and a safety officer "discussed [him and his] condition . . . outside of [his] presence" prior to his examination. Plaintiff supports his assertion by pointing to a June 2001 progress report authored by Severino, which said: "[a]t no time did [plaintiff] appear to be injured while at the incident."

Plaintiff returned to work and Stelman ordered him to engage in training, which "no other member of the company was required to perform," aggravating his "excruciating pain." The injury worsened, and plaintiff was diagnosed with a torn calf muscle, necessitating a one-month disability leave.

Thereafter, Stelman issued plaintiff's one-month performance evaluation. The report noted plaintiff was provided training in a variety of areas, including the Fire Department's rules and regulations; "Initial Scene Assignments"; "Apparatus Familiarity"; and "Pump Operations." Stelman reported plaintiff was "NOT [p]roficient in any area at this time" and noted plaintiff

shows very little [i]nitiative in most aspects of the job. I realize most things are new to him, and he has only been on the shift a short time. He needs close supervision and needs to be reminded of tasks. During drills and training, [he] seems to drift away and tends to change the subject. [Plaintiff] has shown a lack of [i]nitiative and team work in the firehouse. . . . It is my hope that with further training [plaintiff] will have a better understanding of the job.

In his certification opposing summary judgment, plaintiff stresses the report was "completely untrue," he never received the training listed on the report, and he "do[es] not believe other rookie firefighters were evaluated after just a month."

When plaintiff returned from disability leave, he avers he "was repeatedly and relentlessly harassed by Stelman in the form of a hostile work environment" and "continued to witness Severino making homosexual references and overt contact with subordinates." These statements stand unaccompanied by specific examples.

McEldowney conducted a counseling session attended by plaintiff, Severino and another company officer to aid plaintiff's job proficiency. McEldowney created a plan to "assist [plaintiff] in improving his skills, knowledge, and abilities" as a firefighter. Plaintiff's company officer was to file a progress report every four days to "outline activities performed and skills learned." Plaintiff was given sixty days to reach "a skill level . . . similar to other probationary firefighters of his tenure."

Under the direction of Captain James Bender, plaintiff showed improvement. Bender testified plaintiff confided in him and talked about his personal problems. Bender assumed the role of plaintiff's mentor, explaining the inappropriateness of his actions rather than reporting them as violations of the Department's rules and regulations. During this time, plaintiff never expressed his feelings of harassment or retaliation and did not raise questions regarding Severino's alleged conduct.

In an August 17, 2001 progress report, Bender stated, "[plaintiff] continues to show steady improvement in his overall performance, namely work habits and attitude. He no longer has to be reminded on a day[-]to[-]day basis about housework and daily maintenance schedules." A report issued the following month stated, plaintiff "continues to show slow, yet steady improvement in several areas" and reached proficiency "in the area of 'Initial Scene Assignments.'" Also, Bender noted plaintiff's "weakness is that he occasionally has to be reminded to be less opinionated regarding non-job related issues" and "had a lot of trouble with authority. He could not grasp the concept of the position[]" held by superiors, which needed to be respected, even if he disliked the individual.

Later that month, Severino reported plaintiff was "proficient in all areas of Engine Company operations" and that "[h]e has not been tested as a pump operator under actual fire conditions due to no fault of his own." Severino's evaluation concluded

[Plaintiff] has progressed since coming off extended injury leave and shows an interest in learning, however, he needs extra time to grasp new things. I have spoken to him on more than one occasion for being late although he believed he wasn't, and for wearing a jacket that was not department issue.

He tries his best at everything he is told to do and appears to be genuinely interested in the fire service.

On May 28, 2002, plaintiff was issued another verbal reprimand for disobeying Severino's order to produce his "class A uniform." When asked why he did not have his uniform, plaintiff presented an eight-month-old receipt, suggesting he simply neglected to pick it up from the tailor's.

On July 15, 2002, plaintiff became involved in a verbal altercation with Company Officer Thomas Teta, Jr., who found plaintiff sitting at the Captain's desk. Teta told plaintiff to move and commence his firehouse chores. Plaintiff reacted by cursing and screaming. Teta reported plaintiff was "insubordinate, disrespectful," and refused to follow "a direct order." Plaintiff's version of the incident differed. Plaintiff stated Teta, without provocation, verbally abused him, called him a liar, and lied in his statement of the incident. Acting Deputy Chief Dav[id] Curtis interjected, "I know [Teta], I don't know you. Whatever [Teta] says is good." Plaintiff also claims he reported his version of the events "complain[ing] about retaliatory treatment," but the report was not in his employee file.

Curtis reported the incident to Chief Flood stating plaintiff exhibited "uncontrolled rage" and "expressed complete disregard for rank and the procedures of the fire department." As a result, plaintiff was moved to Engine 13. Following his review, Flood "determined that there was reasonable individualized suspicion that [plaintiff] was using controlled dangerous substances" and "ordered [him] to undergo a medical evaluation and drug testing." Plaintiff declined the request for a blood sample. As a result of his refusal to obey an order, he was suspended. Flood repeated his order for drug testing every day between July 15 and 25, 2002; each time plaintiff refused. On July 25, 2002, plaintiff was issued a Preliminary Notice of Disciplinary Action (PNDA), pursuant to N.J.A.C. 4A:2-2.5(a)(1).

Plaintiff sought review by the New Jersey Department of Personnel (NJDOP). The matter was settled prior to a hearing: plaintiff agreed to submit to a drug test, and defendant agreed to reinstate him if the test was negative. Plaintiff was reinstated on August 15, 2002, nevertheless, he demanded a hearing before the NJDOP because the settlement "in no way resolved the violation of [his] rights." The NJDOP concluded

[plaintiff]'s failure to comply with an order to submit to a medical evaluation to demonstrate his fitness for duty and a drug test to demonstrate that he is not a danger to himself and others if permitted to remain on duty warranted an immediate suspension until such time as [plaintiff] underwent these procedures. Thus, it is clear from the record in the instant matter that the petitioner's immediate suspension was proper and imposed in accordance with merit system laws and regulations.

Thereafter, plaintiff requested a transfer. McEldowney counseled him and initially denied his request but later reassigned plaintiff to Battalion 3, Engine 12, under the command of Severino and Stelman. Stelman's January 31, 2003 progress report again noted, "although [plaintiff] has improved a little in the last year and a half, not much has changed. At times, [he] still tends to drift away during training." Describing plaintiff as "lazy" and "lack[ing in] initiative" Stelman listed specific examples of deficits in plaintiff's performance. Stelman observed "recruits just out of the academy . . . are outpacing [plaintiff] in his abilities." Stelman concluded plaintiff might benefit "if transferred to another Battalion and possibl[y] another Platoon, and placed in a double Company house under the watchful eyes of two Company Officers and several seasoned firefighters" to "give him a new start and the incentive to really get on track."

McEldowney reviewed Stelman's report. He conducted another counseling session with plaintiff, attended by Stelman, Severino, Curtis, and a union representative. McEldowney implemented another plan designed to improve plaintiff's performance, which included "'test[ing]' in various basic skills" without prior notice by his company officer or battalion chief "in order to determine any areas requiring additional effort" and being "placed into the probationary firefighter training program."

Plaintiff requested a transfer "off the 4th platoon and out of engine 12" due to "personality differences" with Stelman that were "causing tension in the [fire]house." On that same day, McEldowney forwarded plaintiff's transfer request to Chief Flood, noting it was plaintiff's "second request for a transfer, again citing personality problems." Plaintiff was subsequently transferred to Engine 6, 2nd Battalion, under Battalion Chief Michael Cranwell and Captain Raymond Leahy.

Cranwell evaluated plaintiff's skills and completed a June 12, 2003 progress report, which recorded plaintiff's limitations and noted:

During the evaluation [plaintiff] lacked any trace of enthusiasm. He displayed a poor attitude throughout the exercise. He fre[]quently kept his hands in his pockets and seemed irr[it]ated by the quiz. He was clumsy and indiscriminately yanked equipment from compartments. He responded to my queries in a confrontational tone of voice. He insisted that every other firefighter on this job had better be held to the same scru[]tny, at [illegible]. I told him that the training methods of this agency would not be determined by his opinions.

Cranwell "prepared a program to improve [plaintiff's] job performance" and assured "[plaintiff would] be given ample opportunity to improve."

On June 24, 2003, plaintiff slipped and fell during an assignment and injured his knee. Plaintiff, suggesting he was unaware that department rules designated the hospital for treatment, directed the ambulance to take him to a different hospital. While plaintiff was on medical leave, Cranwell telephoned his residence. When plaintiff did not answer, Cranwell left a message. Additional calls to plaintiff's residence went unanswered and plaintiff "failed to report for a scheduled physician's appointment" on July 3, 2003. Plaintiff never returned the "telephone call[s] or contact[ed] the Department in any way[,]" claiming he never received any message.

Plaintiff was charged with violating the Department's rules and regulations, which required "monitoring by the Department" while on medical leave. A second violation was issued for directing that he receive medical treatment at an unauthorized hospital and failing to "remain at home during his normal duty day, while on Injury Leave."

On August 15, 2003, plaintiff returned from medical leave and suffered an asthma attack. He then learned his grandfather had passed away and requested bereavement leave. Plaintiff suggests he was "ordered to attend a mandatory employee health evaluation" on the date of his grandfather's wake. The evaluation, held on August 19, 2003, was conducted by Nurse Annette Plaza. Plaza notified the Department that in the course of the evaluation, plaintiff spoke of "a couple of stressful events in his life and at work" and stated, "I have nothing to live for"; "I can go to work and while riding on the fire truck at speed [sic] I can jump out of the truck"; and "I can go to work and blow everybody up. I'm not afraid to die." Plaza recommended mental health counseling "to ensure [plaintiff was] fit to return to work (mentally)."

Plaintiff denied he made these comments to Plaza. McEldowney advised plaintiff he would be required to submit to a psychological examination before returning for duty. Two days after Plaza issued her report, plaintiff was injured in a car accident and placed on medical leave. Plaintiff missed a hospital appointment for treatment of his physical injuries and telephone calls to his residence went unanswered. Plaintiff again was charged with violating the Department's rules and regulations for these lapses.

On August 23, 2004, plaintiff's treating physician "cleared [him] to return to modified duty." Plaintiff was told he was required to undergo "a medical fitness for duty examination" before returning to active duty. The exam was scheduled for September 8, 2004. McEldowney also reminded plaintiff he remained obligated "to submit to a psychological evaluation, as previously ordered on August 27, 2003, before being permitted to return to duty." That evaluation was scheduled for September 9, 2004, at the Institute of Forensic Psychology. Plaintiff appeared for the psychological examination but refused to sign the psychologist's waiver form, claiming the psychologist issued "a mandate that [plaintiff] sign a waiver releasing the Doctor from any liability." Plaintiff was ordered to sign the "[r]elease and take the examination" but refused. Plaintiff then spoke with his union counsel, who advised plaintiff his rights were not in jeopardy by execution of the release. Plaintiff still refused. The psychologist would not commence the exam based on plaintiff's failure to execute the waiver.

On October 10, 2004, defendant issued a PNDA charging plaintiff with fifteen counts, including insubordination and job abandonment, since "[a]n employee who has not returned to duty for five or more consecutive days following an approved leave of absence shall be considered to have abandoned his or her position and shall be recorded as a resignation not in good standing . . . . N.J.A.C. 4A:2-6.2(c)." Plaintiff did not appear at the scheduled hearing. Instead, he wrote a letter to McEldowney, requesting a hearing and any "discovery material[s] on [his] proposed termination." The letter charged McEldowney and his attorney were precluding plaintiff "from preparing a defense" and "conspiring to conduct a hearing that deprived [him] of due process." Plaintiff demanded to present his case "before an Administrative Law Judge that is not on [defendant's] payroll." The letter also served as a Tort Claims Notice of plaintiff's intended action for violations of the LAD "based on [his] [H]ispanic heritage and [] refusal to acquiesce [to] the sexual advances of Battalion Chief Charles Severino." Defendant's counsel sent plaintiff a Notice of Tort Claim Form requesting he "provide the [Department] with prompt notification of a claim in order to adequately investigate the facts." Plaintiff ignored the request.

As a result of plaintiff's allegations of sexual harassment, defendant's Executive Director of Administration, Jeffrey Welz, questioned Severino, who denied any allegations of impropriety. Welz then learned of a December 13, 2003 memorandum authored by Captain Steven Winters, alleging Severino was sexually harassing firefighters. The memorandum stated Severino "behaved, and continues to behave in a manner that has been explicitly sexual in nature" and that members of the department witnessed Severino's behavior but did not report it fearing retaliation. Winters admitted he avoided the chain of command and delivered the memo in a sealed envelope directly to McEldowney; however, McEldowney was not in his office, and he left the envelope with his secretary. Winters never followed-up with McEldowney despite numerous opportunities to do so. Both McEldowney and his secretary denied ever seeing Winters' memo. After plaintiff delivered his May 10, 2005 letter, Winters provided a copy of his memorandum to plaintiff's attorney and a newspaper reporter.

The Department's corporate counsel commenced an investigation. Counsel interviewed Curtis, Bender, Stelman, and various other captains and firefighters who had "ongoing work relationships either with Severino, Winters and/or [plaintiff]." The firefighters all "testified that Severino was an exemplary fire chief, highly decorated, highly respected and, without question, professional in all aspects." Each employee denied any inappropriate sexual behavior from Severino and depicted him as a "prankster." On the other hand, plaintiff was described as "a malcontented employee who was erratic, antagonistic, hostile, abrasive and resistant to any authority" from the beginning of his employ.

Most notably, Bender testified that during the nine-month period he worked with plaintiff, "never once did [plaintiff] hint . . . that he was having any type of problem or concerns . . . [,] was being sexually harassed or put even in an uncomfortable position," or "indicate that he was afraid of being retaliated against. . . ." Bender noted the "Department is a quasi-military organization," which strictly followed rules and regulations, and plaintiff was "a very difficult fireman to train," due to his "trouble with authority."

An order "to appear and give testimony under oath" was taped to plaintiff's door. "[N]umerous telephone calls were placed to him on both his home and cell telephone numbers" to advise him of the order. Nevertheless, plaintiff failed to appear.

At the conclusion of the investigation, Department counsel noted "[t]he authenticity" of Capt. Winters' December 13, 2003 letter was "highly questionable." He concluded, "[t]here is absolutely no evidence to support any inappropriate conduct, sexual or otherwise, by Severino."

On June 9, 2005, the Hearing Officer reviewing the Department's proposed discharge of plaintiff issued a written opinion finding that "[i]n view of Nurse Plaza's report, the direction to submit to a psychological evaluation was perfectly reasonable" such that plaintiff's "refusal was an unjustified refusal to obey an order," and he was "guilty of all the charges" resulting in "job abandonment in accordance with N.J.A.C. 4A:2-6.2." The Hearing Officer recommended plaintiff "be dismissed from the department."

Plaintiff filed his four-count LAD complaint on July 12, 2006. He alleged: 1) hostile work environment, based on sexual harassment; 2) discrimination, on the basis of handicap/ disability; 3) failure to accommodate; and 4) retaliation.

B.

At the close of discovery, defendant filed for summary judgment. Following oral argument on August 12, 2008, the motion judge reserved decision. In a statement accompanying the order under appeal, the judge granted defendant's motion and dismissed plaintiff's complaint with prejudice.

Because plaintiff challenges the validity of the court's factfinding and conclusions, the entirety of the court's opinion follows:

Count 1: The plaintiff, in opposition, argues that there are genuine issues of material fact per Brill v. Guardian Life [Ins. Co., 142 N.J. 520, 540 (1995)] and R. 4:46-2(c) re[garding]: the Severino-Stoecker incident on first day of work 5/01 in regard to each of the four Lehman[n] v. Toys R Us[, 132 N.J. 587 (1993)] elements. However, the plaintiff has not complied with R. 4:46-2(b).

Count 2: The plaintiff, in opposition, argues that he was discriminated against because of "handicap" or "disability[,]" and in Count 3: The plaintiff, in opposition, argues that he was discriminated against by failure to accommodate as additional basis for his complaint per N.J.S.A. 10:5-5[]. Even giving, as required, all possible favorable inferences to the plaintiff, there is no evidence that plaintiff was "forced back to work" after the calf or knee injury nor the asthma attack. Plaintiff specifies no denial of accommodation.

Count 4: The plaintiff, here, argues retaliation but does not specify in any way the "protected activity" until the 5/10/05 letter to the chief.

The threshold question for the Court to decide is whether the counts of this complaint are "time barred" per Montells [v. Haynes, 133 N.J. 282 (1993)], Bo[l]inger [v. Bell Atlantic, 330 N.J. Super. 300 (App. Div.), [certif. denied, 165 N.J. 491] (2000), in light of plaintiff's arguments that all incidents from the first day of hiring are admissible under a "continuing violation" per Sheph[e]rd [v. Hunterdon Dev'l Ctr., 174 N.J. 1 (2002),] because he is suing for the wrongful suspension and subsequent termination that began in August 2004 "within the S[tatute] O[f] L[imitations]" period. This court finds that the [p]laintiff never alluded to wrongful suspension and subsequent termination in the complaint; that plaintiff argues he was offended and objected to Severino's conduct the first day; that each alleged [incident] was "discreet" under Hall v. St. Joseph['s] Hosp.[, 343 N.J. Super. 88 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002)] and are time barred per Montells [v. Haynes, [ 133 N.J. 282 (1993)].

II.

A.

In his first argument, plaintiff asserts the order must be reversed and his complaint reinstated because the motion judge's limited factfinding "fails to sufficiently address the reasons for the disposition of the [m]otion," denying plaintiff "a full understanding [of] why his [c]omplaint was dismissed." Following our review, we are not persuaded by this characterization.

Rule 1:7-4(a) denotes a trial court's obligation to make findings of facts and state conclusions of law "on every motion decided by a written order that is appealable as of right[.]" The oft-cited instruction by the Supreme Court regarding trial court factfinding bears repeating:

Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.

[Curtis v. Finneran, 83 N.J. 563, 569-70

(1980).]

Our cases have repeatedly stressed the importance of a trial judge's responsibility to provide findings and conclusions to assure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). The standards set forth in our statutes and cases must be addressed by the motion judge to support a determination. Without findings relevant to the legal standards, a litigant and the reviewing court "can only speculate about the reasons" for the motion judge's decision. Id. at 304. The trial court's obligation to make such findings of fact and conclusions of law is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110 (2004).

We concede that the judge's written decision lacked the specificity preferred when granting summary judgment and dismissal. Generally, when a trial court has not made adequate findings of fact, the appellate court will remand for the trial court to make the necessary factual findings. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. N.J. Dep't of Transp., 276 N.J. Super. 465, 471-73 (App. Div. 1994). However, based on this record, as discussed more particularly below, we are satisfied summary judgment was properly granted. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005) (holding "that a correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal").

B.

(1)

Plaintiff contends he raised genuine issues of material fact sufficient to preclude the entry of summary judgment. Specifically, he suggests the court erred by accepting defendant's statement of facts and not properly giving him the benefit of all reasonable inferences.

We first address the notion that the court granted summary judgment because plaintiff failed to comply with the dictates of Rule 4:46-2(b). See Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 568 n.2 (2009) (stating parties are expected "to comply with the dictates of Rule 4:46-2(b) rather than hope for mercy when they do not").

Plaintiff did not "file a responding statement either admitting or disputing each of the facts in the movant's statement." R. 4:46-2(b). Instead, he filed a certification in opposition to summary judgment. Plaintiff argues the court improperly assumed defendant's statements of material fact were admitted. We disagree with that conclusion. In its statement of reasons, the court frequently references plaintiff's opposition, suggesting that it was fully reviewed along with all other submissions supplied in reference to the summary judgment motion.

(2)

Turning to plaintiff's employment discrimination claims, we first identify the standards informing our review of an order for summary judgment. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "Genuine" issue of fact means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. Even if allegations in the pleadings raise an issue of fact, summary judgment can be granted if other papers show the issue is not material. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

In deciding a summary judgment motion, the trial court's "'function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d. 202, 212 (1986)). To make that determination, the trial judge must 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." Ibid. If there is "a single, unavoidable resolution of the alleged disputed issue of fact," then the issue is not "genuine." Ibid. The thrust of Brill is that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214).

"'[C]onclusory and self-serving assertions' in certifications without explanatory or supporting facts will not defeat a meritorious motion for summary judgment." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder v. Buechel, 183 N.J. 428, 440 (2005)). "[O]pposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Ibid. (quoting Merchants Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed Jan. 3, 2006); see also O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 606-07 (App. Div.) (stating opposition to summary judgment must do more than establish abstract doubt regarding material facts), certif. denied, 169 N.J. 606 (2001). Therefore, "summary judgment cannot be defeated if the non-moving party does not 'offer[] any concrete evidence from which a reasonable juror could return a verdict in his favor[.]'" Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App. Div. 1998) (quoting Liberty Lobby, supra, 477 U.S. at 256, 106 S. Ct. at 2514, 91 L. Ed. 2d at 217).

We apply the same standard as the trial court in our de novo review of summary judgment orders. Liberty Surplus Ins. Corp. v. Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). We must consider the correctness of the lower court's decision based only on the case as it unfolded up to the point of the motion and any evidential material submitted supporting the motion. Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963). Thus, "a non-movant will be unsuccessful 'merely by pointing to any fact in dispute'"; the fact must be material and substantial in nature. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (quoting Brill, supra, 142 N.J. at 529-30), certif. denied, 154 N.J. 608 (1998). If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Ibid.

Plaintiff argues the court failed to review the facts in a light most favorable to him, as the non-moving party, and erred by not finding the incidents detailed in his complaint constituted a continuing hostile work environment and retaliation sufficient to toll the statute of limitations.

We disagree with plaintiff's analysis that, when viewed in a light most favorable to him, material factual disputes are presented. We determine Severino's coarse, sexually explicit remark, uttered on plaintiff's first day of work in May 2001, does not serve as a thread weaving four years of various, seemingly unrelated events or demonstrate a pattern of retaliatory conduct or a hostile work environment. Further, we discern the "facts" contained in plaintiff's certification do not meet the evidential requirements to defeat summary judgment.

Generally, plaintiff's certification is fraught with hearsay, speculation, self-serving assertions or unsubstantiated conjecture. Plaintiff's suggestion that the various disciplinary actions, work assignments, or negative progress reports resulted from discrimination and retaliation, rather than being exactly what they purport to be -- an attempt to train a firefighter who is resistant to authority and chain of command -- lacks material basis. An objective reading of the evidential record reflects plaintiff was untrained when assigned to the Department and his personality rankled superiors. Yet, he was given ample opportunity to learn his job satisfactorily, modify his resistant, confrontational behavior, and adjust to the militaristic chain of command of the Department. Other than an initial 2001 protest to Manion, alleged to have been overheard by Stelman, plaintiff made no complaints of sexual harassment until he was in the throes of dismissal. Defendant's termination resulted from his unfounded refusal to comply with an order to obtain a psychological examination, not from his rebuff of Severino's 2001 overture. The order necessitating a psychological review was well-grounded on Plaza's evaluation, not, as plaintiff intimates, on a conspiratorial collusion between the medical professionals and the Department. Overall, plaintiff's suggested inferences are unfounded and thus, insufficient to necessitate a jury's determination. James Talcott v. Shulman, 82 N.J. Super. 438, 443 (App. Div. 1964); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).

C.

Next, we examine the court's conclusion that the hostile work environment claim was time-barred because plaintiff failed to prove events subsequent to Severino's provocative comment, including dismissal, were part of a continuous violation. In plaintiff's view, everything that occurred following Severino's statement resulted from plaintiff's rebuff. He argues defendant's conduct was "sufficiently severe and/or pervasive to establish an actionable hostile work environment claim," ultimately causing the retaliatory termination of his employment. This argument improperly confuses the applicable legal standards.

The Supreme Court in Lehmann, supra, delineated the standards necessary to prove a hostile work environment discrimination claim premised on acts of sexual harassment. 132 N.J. at 603-04. See also N.J.S.A. 10:5-12(a) (stating discrimination by employer based on sexual orientation is unlawful). For the purposes of establishing a claim for hostile work environment sexual harassment,

the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.

[Lehmann, supra, 132 N.J. at 603-04.]

The Court equally applied the standard to sexual harassment by one man against another. "The only difference in the standard would be that a male plaintiff would have to allege conduct that a reasonable man would believe altered the conditions of his employment and created a working environment that was hostile to men." Id. at 604.

To establish a prima facie case of discriminatory retaliation, pursuant to N.J.S.A. 10:5-12(d), a plaintiff must demonstrate: (1) he or she engaged in a protected activity known by the employer; (2) thereafter the employer unlawfully retaliated against him or her; and (3) participation in the protected activity caused the retaliation. Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008); Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996). A plaintiff engages in a "protected activity" if he has "opposed any practices or acts forbidden under this act," "filed a complaint, testified or assisted in any proceeding under this act" or "aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act." N.J.S.A. 10:5-12(d). "[A]s a prerequisite for proceeding on a retaliatory discharge claim, a plaintiff must also bear the burden of proving that he or she had a good faith, reasonable basis for complaining about the workplace behavior." Tartaglia, supra, 197 N.J. at 125.

Under the LAD, proof of discrimination "remains with the employee at all times." Victor v. State, 401 N.J. Super. 596, 614 (App. Div. 2008) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005)), certif. granted, 199 N.J. 542 (2009). All "[c]laims brought under the LAD are subject to a two-year statute of limitations." Roa v. Roa, 402 N.J. Super. 529, 538 (App. Div. 2008), certif. granted, 197 N.J. 477 (2009). An exception to that limitations period is the "continuing violation" doctrine, which allows a plaintiff to "pursue a claim for discriminatory conduct if he or she can demonstrate that each asserted act by a defendant is part of a pattern and at least one of those acts occurred within the statutory limitations period." Shepherd, supra, 174 N.J. at 6-7. "[T]he conduct becomes tortious and actionable precisely because of its continuous, cumulative, synergistic nature." Roa, supra, 402 N.J. Super. at 539 (quotations and citations omitted).

To overcome the statute of limitations under the continuous violations doctrine, a plaintiff must show: "(1) at least one allegedly discriminatory act occurred within the filing period and (2) the discrimination is more than the occurrence of isolated or sporadic acts of intentional discrimination and is instead a continuing pattern of discrimination." Bolinger, supra, 330 N.J. Super. at 307 (quotations and citations omitted).

Here, plaintiff insists he was "terminated as a result of the improper conduct and actions taken against him by [d]efendants - actions which were in retaliation for [p]laintiff['s] objection to the sexual advances of Captain Severino[,] for his seeking medical treatment and disability leave[,] for his refusal to submit to a blood test in violation of his rights and for his refusal to sign an unlawful waiver." This argument, made in an effort to overcome the two-year limitations bar, conflates the alleged May 2001 sexual harassment comment by Severino with the subsequent incidents of alleged retaliation. As noted above, discrimination based on sexual harassment or hostile work environment, created by acts of sexual harassment, is distinctly different from a retaliatory termination. The two cannot be enmeshed and the claims must be analyzed separately.

The events sounding in a claim of sexual harassment include Severino's 2001 comment; plaintiff's otherwise unsupported generalized statement that he "was repeatedly and relentlessly harassed by Capt. Stelman in the form of hostile work environment"; plaintiff's claim that he "continued to witness Severino making homosexual references and overt contact with subordinates"; and Winters' letter making similar non-descript allegations about firefighters other than plaintiff. Giving plaintiff every favorable inference that he witnessed inappropriate sexual behavior by Severino, the events occurred more than two years before plaintiff filed his complaint. Plaintiff departed from his employment on August 24, 2003, making it the last possible date he might have witnessed Severino's actions. So too, Winters' letter alleged inappropriate sexual behavior by Severino prior to its date of issue, December 13, 2003.

Plaintiff's contention that the remaining events recited in his complaint constituted a continuing hostile work environment sufficient to overcome the statute of limitations is meritless. The act by Severino is one isolated incident of intentional discrimination. Even if we agreed with the suggestion that witnessing others being victimized satisfied the requirement of a continuing pattern of discrimination, based on the date of the last possible witnessed event, legal action should have been initiated prior to the close of 2005. We conclude plaintiff's claims, based on sexual harassment and hostile work environment, are untimely.

As to the retaliatory discharge claim, plaintiff argues he engaged in protected activity when he

objected to the unwanted sexual advances by Captain Severino, [] sought medical treatment for a work-related injury, [] refused to submit to a blood test in violation of his rights and refused to sign an unlawful waiver, and [] addressed his complaints regarding the hostile work environment to which he was subject.

While plaintiff's challenge to his suspension for refusing to submit to a drug test, and the May 10, 2005 letter alleging Severino's sexual harassment may serve as protected activity, nothing links these events to plaintiff's discipline for violations of the Department's rules and regulations, acts of insubordination and disrespect for officers, or plaintiff's discharge for refusal to submit to a psychological examination, as supported by the evaluation of a treating medical professional.

It is noteworthy that plaintiff never mentioned an issue of sexual harassment to any other member of the Department, including Bender with whom plaintiff had confided prior to submitting his May 10 notice. Moreover, Winters' letter does not mention plaintiff as one of the firefighters who were victimized by Severino. Also, the resulting investigation prompted by plaintiff's and Winters' complaints unearthed no support for the contention that Severino's alleged harassment was common knowledge or even existed.

The record strongly supports a finding that plaintiff was not disciplined for seeking medical treatment for a work-related injury. He was disciplined for failing to (1) follow Department rules and regulations that required treatment by designated medical providers; (2) attend scheduled examinations; (3) maintain contact with his superiors while on disability leave; and (4) return the repeated telephone calls made to him while on medical leave. As to the refusal to submit to a drug test, the basis of that order was substantiated in the NJDOP review, which concluded plaintiff's claim was unfounded. He was awarded back-pay for the period prior to the issuance of the discipline notice, not because his refusal to obey the order was justified.

Finally, nothing shows the psychologist's waiver was "illegal" or that plaintiff's objection to its execution was defensible. Plaintiff was advised by his union representative and counsel that his refusal was unwarranted. It was this unfounded resistance that resulted in the October 10, 2004 PNDA, and the commencement of termination proceedings, not plaintiff's May 10, 2005 letter. Plaintiff's rationalization for the basis of his termination fails to salvage his claims.

III.

Our review of the record satisfies us that there is no basis to intervene in the grant of summary judgment and dismissal of plaintiff's complaint.

 
Affirmed.

Brian McEldowney was incorrectly designated as Brion McEldowney.

The NJDOP also found defendant failed to "serve the PNDA within the prescribed time frames" and therefore, it awarded plaintiff back-pay from the date of suspension to the date of service of the PNDA.

The specific shortfalls designated in Stelman's report include: "often SLOW at getting geared up to respond to alarms;" having trouble with "the most basic knots" while "under no pressure or stress;" and "seems to get fatigued and out of breath[] very quickly," which "makes him a liability."

The "General Agreement and Release" form stated, in pertinent part:

I agree to hold harmless the Examiners from any liability or action that may result from this evaluation. In agreeing to this, I understand that the Examiners do not make any personnel decisions, which are entirely the responsibility of the employer. I also understand that signing this form does not affect my right to pursue any available administrative remedy against the agency.

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A-0337-08T1

November 6, 2009