REGIS A. VITALE v. ATLANTIC COUNTY SPECIAL SERVICES SCHOOL DISTRICT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1675-07T31675-07T3

REGIS A. VITALE,

Plaintiff-Appellant,

v.

ATLANTIC COUNTY SPECIAL SERVICES

SCHOOL DISTRICT,

Defendant-Respondent,

and

ATLANTIC COUNTY SPECIAL SERVICES

BOARD OF EDUCATION, RUSSELL V.

GRECCO, individually and in his

official capacity, BARBARA J.

MORVAY, individually and in her

official capacity, VIRGINIA M. BIRD,

individually and in her official

capacity, and RICHARD GISONDI,

individually and in his official

capacity,

Defendants.

_______________________________________________

 

Argued December 17, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-493-04.

William G. Blaney argued the cause for appellant (Gruccio, Pepper, DeSanto & Ruth, attorneys; Mr. Blaney and Frank Guaracini, III, on the brief).

James F. Schwerin argued the cause for respondent (Parker McCay, attorneys; Mr. Schwerin, on the brief).

PER CURIAM

In this appeal, we consider whether partial summary judgment was appropriate when based solely on the motion judge's view that the dismissed claim was cumulative of the remaining claims and, also, whether the jury's findings on the remaining claims were dispositive of the issues raised in the dismissed claim, thus excusing any error in granting partial summary judgment. Because both questions must be answered in the negative, we are constrained to reverse.

I

Plaintiff filed a complaint asserting he was terminated by defendant Atlantic County Special Services School District (the district) in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the Veterans' Tenure Act (VTA), N.J.S.A. 38:16-1 to -6. Plaintiff alleged he was employed by the district as a certified teacher for handicapped students from January 2001 until June 2003. At the end of the 2003 school year, plaintiff, a fifty-five year old military veteran, was advised he would not be retained because a shortfall in tuition and a downturn in student enrollment necessitated a reduction in force of four teachers. Following notice of his termination, plaintiff informally appeared before the school board, asserting his status as a veteran and his right to a hearing pursuant to the VTA. Plaintiff claims that this was not the hearing required by the VTA and that, in any event, the district lacked good cause for his termination.

All defendants moved for summary judgment. The motion was granted in favor of the individual defendants on the LAD claims and in favor of all defendants on the VTA claim, leaving for trial only plaintiff's LAD claim against the district. In granting summary judgment on the VTA claim, the motion judge concluded by way of a three-sentence oral decision that dismissal was appropriate because the VTA "is not an act which gives any protection other than that already afforded by the [LAD]." Plaintiff's LAD claim went to trial before a different judge; the jury returned a verdict in favor of the district.

II

Plaintiff appeals only the order that granted summary judgment in favor of the district on his VTA claim. We reverse because (a) the motion judge adopted an invalid basis for an award of summary judgment and the factual record precluded summary judgment on the VTA claim, and (b) the result erroneously achieved by way of summary judgment cannot be rescued by the results of the later trial because the jury's findings on the LAD claim did not necessarily encompass a finding that would be fatal to the VTA claim.

A

As we have observed, the motion judge granted summary judgment on the VTA claim because he found the remedies made available by the VTA to be no different from those made available by the LAD. This is not a valid basis for granting summary judgment. A litigant is entitled to pursue alternative theories in seeking relief. The existence of one theory of recovery does not necessarily bar pursuit of the same remedy under some other legal theory. We, thus, reject the motion judge's rationale for dismissing the VTA claim.

Of course, we may affirm a summary judgment for reasons other than those expressed by the trial court. See, e.g., Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008). However, in this case, there is no alternative basis upon which to sustain the summary judgment on the VTA claim. Instead, when examining the record through application of the Brill standard, it is clear that the summary judgment motion on the VTA claim should have been denied.

The VTA precludes the termination of a military veteran from public employment "except for good cause shown after a fair and impartial hearing." N.J.S.A. 38:16-1; see also Maxwell v. Bd. of Comm'rs, 111 N.J.L. 181, 185 (Sup. Ct. 1933), aff'd, 113 N.J.L. 404 (E. & A. 1934). We have previously held that the right to the hearing required by the VTA is a property right entitled to due process procedural protection. Willis v. Dyer, 163 N.J. Super. 152, 162 (App. Div. 1978). Here, plaintiff claimed he was deprived of the fair and impartial hearing guaranteed by the VTA and that "good cause" was not established because the district's reduction in force was illegitimate.

We agree with plaintiff that the facts asserted in opposition to summary judgment barred the granting of relief in favor of the district on the VTA claim. The factual record suggested that the other teachers purportedly involved in the district's reduction in force had either resigned in advance or were working under emergency certificates that had expired. In short, according to plaintiff's version of the facts, three out of the four teachers involved would have been eliminated from employment if the district took no action at all, and plaintiff was, thus, the only teacher actually terminated by way of the alleged reduction in force.

Whether, in light of these facts, the reduction in force was legitimate or a ruse to terminate plaintiff could not be resolved by way of summary judgment but was, instead, an issue for the jury to resolve. We also note there was a genuine factual dispute about whether the informal discussion between plaintiff and the school board referred to by the parties was the equivalent of the impartial hearing required by the VTA. Accordingly, the motion judge was required to deny the summary judgment motion regarding the VTA claim.

B

The district, however, argues that even if summary judgment on the VTA claim should not have been granted, the jury's finding on the LAD claim was fatal to plaintiff's VTA claim. That is, the district argues that the trial on the LAD claim encompassed all the evidence plaintiff could offer on the VTA claim and that, in ruling against plaintiff on the LAD claim, the jury must have found the reduction in force to be legitimate. In short, the district argues that the demise of the LAD claim renders irrelevant any error committed when the VTA claim was dismissed. We disagree.

The chief problem with the district's argument is that the elements necessary to sustain the LAD and VTA claims are not the same. As we have observed, to sustain a cause of action under the VTA, plaintiff was required to show that he was either deprived of a fair and impartial hearing, or that the district lacked "good cause" for his termination. N.J.S.A. 38:16-1. On the other hand, to sustain his LAD claim, plaintiff was required to prove more.

To succeed on his LAD claim, plaintiff was required to prove unlawful discrimination. N.J.S.A. 10:5-12 makes it unlawful for an employer "to discharge" an employee because of "race, creed, color, national origin, ancestry [and] age." In the three-stage manner in which such claims are adjudicated, plaintiff -- who claimed the district discriminated by basing termination on his age or gender -- was first required to show (1) his membership in a protected class, (2) that he was qualified for the position he held, but (3) that he was laid off, and (4) other unprotected workers were retained. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005); Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492 (1982). Once these four factors are presented, it can be said that plaintiff has shown that "discrimination could be a reason for the employer's action." Zive, supra, 182 N.J. at 447 (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). In other words, in making this showing, a plaintiff has at least circumstantially demonstrated the employer's discriminatory intent, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for termination. Zive, supra, 182 N.J. at 449; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988). Then, "[i]n the third stage of the burden-shifting scheme, the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Zive, supra, 182 N.J. at 449.

It is true, as the district argues, that a finding that the reduction in force was legitimate or not pretextual -- as to which both parties presented evidence at the LAD trial -- would be fatal to both the LAD and VTA claims. See Roe v. Borough of Upper Saddle River, 336 N.J. Super. 566, 576 (App. Div. 2001) (quoting Moresh v. Bayonne Bd. of Educ., 52 N.J. Super. 105, 109 (App. Div. 1958) and holding that "[n]o provisions of the [VTA] have ever been read to prevent the abolishment of a protected veteran's position where the governmental action is 'for reasons of efficiency or economy, in good faith"). But the LAD claim also turned on the substantiation of a discriminatory intent, which was not an element of plaintiff's VTA claim. For that reason, absent a specific finding by the jury on the third stage of the burden-shifting process outlined by the Court in Zive, the jury could very well have determined that plaintiff's LAD claim failed at the first stage and, thus, never reached plaintiff's contention that the reduction in force was pretextual.

The jury's responses to the verdict sheet reveal no certainty about whether the jury made findings regarding the legitimacy of the reduction in force. The jury verdict sheet did not require that the jury indicate its findings on each of the burden-shifting stages of the LAD claim, but instead, sought from the jury only its ultimate findings as to whether plaintiff "proved that it is more likely than not that the [district] engaged in intentional discrimination by terminating his employment because of plaintiff's sex" or "because of plaintiff's age." The jury said "no" to both these questions. This lumping together of the LAD elements in the verdict sheet precludes our ability to ascertain whether the jury even reached the question of whether the reduction in force was pretextual. And, because we cannot say that the jury found legitimate the reduction in force, we must reject the district's argument that the jury verdict on the LAD claim precludes any further litigation on the VTA claim.

For these reasons, we must reject the district's argument that the jury verdict is conclusive of the VTA claim and renders irrelevant the erroneous summary judgment.

III

The summary judgment procedure was designed to promote the efficient resolution of some or all of the issues presented in a given case. Brill, supra, 142 N.J. at 530; Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 641-42 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). That does not mean, however, that this procedure authorizes the dismissal of claims merely because they are cumulative or similar to other claims that must ultimately be resolved by the factfinder. Indeed, adoption of such an approach may at times disserve the procedure's hallmark of efficiency.

Here, the dismissal of the VTA claim spared the parties no time or trouble in the ultimate presentation of evidence to the jury. A trial would have occurred and would have included essentially the same evidence whether or not summary judgment was granted on the VTA claim. Rather than promote efficiency, the precipitous grant of summary judgment here has doomed the parties to a new trial. This troubling waste of judicial resources, as well as the time and efforts of the parties and their counsel, which has resulted from the motion judge's mistaken award of summary judgment, however, presents for us no valid reason for resolving this appeal other than as we have.

Reversed and remanded for a trial on plaintiff's VTA claim.

 

The motion judge's entire oral decision as it related to the VTA claim is as follows:

The motion by defendant to dismiss as to the [VTA], particularly as it has been interpreted in the federal courts by the Third Circuit, is not an act which gives any protection other than that already afforded by the [LAD]. For that reason, the claims being actionable [under the LAD], there's no additional remedy that -- under these circumstances -- that is afforded to this plaintiff, under the [VTA]. And, therefore, I am going to grant the motion as to the [VTA] as well.

In reviewing the summary judgment in question, we are bound by the same standards that bound the motion judge. Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The Supreme Court reviewed another decision of this court that conflicted with Roe's holding on this point. In Viviani v. Borough of Bogota, 170 N.J. 452, 454 (2002), the Court held in a brief per curiam opinion that Roe's view "more accurately reflects the underlying legislative purpose."

The district also phrases its contention that the jury's LAD verdict is fatal to plaintiff's VTA claim by urging the application of the doctrine of collateral estoppel. This doctrine has no application here. The matter at hand does not involve an issue that was decided in a "prior proceeding," and, as we have explained, has not been shown to have been "actually litigated" to a final disposition. See In re Estate of Dawson, 136 N.J. 1, 20-21 (1994). Contrary to the district's assertion that plaintiff is attempting to obtain "a second bite at the apple," we do not discern from this record, as we have already explained, that plaintiff has yet been permitted a single bite of this apple. The collateral estoppel doctrine does not apply when the alleged prior adjudication is either an erroneous summary judgment in the same suit or a jury verdict that only arguably may have decided the issue in question.

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A-1675-07T3

January 12, 2009