RAYMOND BRENNAN v. STATE OF NEW JERSEY
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3119-07T33119-07T3
STATE OF NEW JERSEY; DEPARTMENT
OF HUMAN SERVICES OF THE STATE
OF NEW JERSEY; GWENDOLYN HARRIS,
Individually; ARBURTA JONES,
Individually; KEVIN RYAN, Individually;
ALMA JOSEPH, Individually; BARBARA ALLEN,
Individually; JANET GILLIAM, Individually;
JAMES DAVY, Commissioner of the Department
of Human Services of the State of New
Jersey, Individually and in his Official
Capacity; State Employees Who Breached
Their Duties by Furthering or Covering
Up the Discrimination Against Plaintiff;
and OFFICE OF THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, in its Official
Argued March 4, 2009 - Decided
Before Judges Axelrad, Parrillo and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1732-05.
Clark E. Alpert argued the cause for appellant (Alpert, Butler & Weiss, P.C., attorneys; Mr. Alpert and David N. Butler, on the brief).
Ivo Becica, Deputy Attorney General, argued the cause for respondents (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Becica, on the brief).
Plaintiff Raymond Brennan appeals from the summary judgment dismissal of his complaint against defendants, the State of New Jersey; Department of Human Services (DHS); DHS employees or former employees, Gwendolyn Harris, Arburta Jones, Kevin Ryan, Alma Joseph, Barbara Allen, Janet Gilliam, and James Davy; and the Office of the Attorney General (the OAG). Plaintiff, who was born in 1926 and has served as Chief of the Human Services Police (HSP) since 1985, alleged defendants discriminated against him because of his age in violation of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49; created a hostile work environment in violation of the LAD; and retaliated against him because he engaged in protected activities under the LAD. He also alleged causes of action for constitutional violations; equitable fraud; unjust enrichment; fraud; tortious interference with contractual benefits; intentional and reckless infliction of emotional distress; "prima facie tort"; and civil conspiracy. As to the OAG, plaintiff sought injunctive relief "directing [it] to cause defendants to cease their discriminatory and retaliatory actions[.]"
The motion judge found that 1) plaintiff's discrete age discrimination and hostile work environment claims were barred by the statute of limitations; 2) plaintiff failed to demonstrate a prima facie case for retaliation because he could not prove he had engaged in LAD-protected activity; and 3) plaintiff's failure to file notice under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3, required dismissal of the intentional tort claims. The judge also summarily dismissed the remaining counts of the complaint.
On appeal, plaintiff raises the following issues for review:
I. this court should reverse the grant of summary judgment, which was premised upon clear errors of law.
II. The trial court committed material legal error in concluding that the filing of the complaint on june 30, 2005 was too late, where the last act of the continuing lad violation occurred no earlier than june 30, 2003.
III. the trial court misapplied velez's prospectivity mandate; the "notice" obligation does not apply to the pre-velez intentional tort claims asserted here.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
After thirty years, plaintiff retired from the New Jersey State Police, having achieved the rank of Lieutenant Colonel. From the date he was hired at DHS until 2001, plaintiff had an exemplary record without any complaints having been made about his conduct or job performance. In November 2001, an anonymous letter was circulated at DHS describing plaintiff and another employee, Lieutenant Armbrecht, as old and frail. In early 2002, following the inauguration of a new governor, Harris was appointed commissioner of DHS, Ryan was appointed her Chief of Staff, and Jones was appointed assistant commissioner, supervising the HSP and reporting to Ryan. Jones in turn appointed Vincent Giampietro as deputy director of Program Compliance and Public Safety, essentially the civilian supervisor of the HSP, and plaintiff's immediate supervisor. Plaintiff believed Giampetro was hired "in order to give [him] some difficulty in running the [HSP], to embarrass [him]." In connection with this litigation, Giampietro certified that in February or March of 2002, Ryan and Jones told him that the most significant reason for his hiring was because "the Chief may not still be able to manage the duties of the HSP[.]"
On May 16, 2002, plaintiff heard a commotion in an adjacent office. Giampetro and Armbrecht were in the office, and plaintiff heard an exchange of vulgar language, but no racial epithets. Brenda McDuffie, an African-American employee, complained that she overheard Giampietro use the word "nigger." McDuffie's complaint was reported to the DHS' Equal Employment Office (EEO) by Donna Pincavage, one of plaintiff's fellow employees.
Two weeks later, EEO investigator John Zajac interviewed plaintiff and requested he submit a written report on what plaintiff has coined the "McDuffie Incident." During this interview, plaintiff told Zajac, "You got the wrong guy to turn  Giampietro in. I'm not going out as a CEPA employee." Zajac concluded, based upon interviews of all involved, that plaintiff had walked into the office either before or during the time when Giampietro made the derogatory remark, and plaintiff failed to report the incident, thereby implicitly condoning it. Plaintiff disagreed with the report and its conclusions, viewing it as part of a conspiracy to terminate him.
Based on Zajac's report, on July 12, 2002, Ryan and Jones told plaintiff that he was being terminated, directed him to leave the building, and served him with a "Preliminary Notice of Disciplinary Action." On July 19, 2002, a pre-termination disciplinary hearing was conducted by Gilliam. Plaintiff was represented by counsel and lodged objections to the proceedings and the failure to supply him with all relevant reports. As a result of the hearing, plaintiff was suspended.
Formal departmental disciplinary hearings were held in August 2002. George Kemery, the hearing officer, issued his report on October 2, 2002. He concluded that plaintiff was present when Giampietro made the derogatory remark, that plaintiff failed to report the incident to management, and that he was obligated to do so. Kemery recommended plaintiff be suspended thirty days in lieu of termination.
Plaintiff claimed that he never received Kemery's report. Instead, around October 23, he was served with a report signed by Joseph, the assistant commissioner of human resources at DHS (the Joseph report), which plaintiff characterizes as a "mysterious re-write" of the hearing officer's report. The Joseph report similarly concluded that plaintiff was present when the statements were made and failed to report them, but it also found plaintiff failed to cooperate with the investigation, a conclusion Kemery had specifically rejected in his report. The Joseph report also noted that plaintiff had admitted to Zajac that he was in the room when the remark was made, something that was not contained in Kemery's report. Joseph increased plaintiff's suspension to forty-five days.
Plaintiff served his suspension and appealed to the Merit System Board. The matter was sent to the Office of Administrative Law (OAL) as a contested case, and, as of the date of oral argument before us, was still pending. Plaintiff returned to work in November 2002 only to find that many of his job duties had been taken over by Lisa Taylor, the newly appointed deputy director of public safety. Plaintiff testified that by March 2003, Taylor was responsible for the management of the HSP, including police policy, development, administration and resources, and the investigation of police personnel. Plaintiff, however, maintained his authority over "day-to-day operations of police personnel." Despite this reduction in his duties, plaintiff retained his personal secretary until October 2003 when she retired. Although plaintiff was not supplied with a replacement, he conceded that he did not need a secretary because there was insufficient work.
During his deposition, when asked directly if he believed his job duties were taken away because of his age, plaintiff responded "[n]o[,]" explaining "[w]e ha[d] a new administration," that emphasized civilian leadership roles at the HSP. Plaintiff, however, testified that civilian directors should only deal with "financial issues . . . budgetary issues, those no[t] associated with policing functions per se."
On March 28, 2003, Taylor directed plaintiff to conduct uniform and station inspections. He failed to do so. Two months later, on May 28, Taylor sent plaintiff another memo asking why he had not yet performed the inspections. On June 25, plaintiff sent Taylor a memo asking for an extension of time to complete the inspections. On June 30, 2003, Taylor responded, extending the deadline to July 21. On July 24, Taylor received a four-page inspection report, allegedly authored by plaintiff. At his deposition, plaintiff denied ever seeing the report, and admitted that he never performed the inspection visits as ordered by Taylor. In a July 30 memo to Donald Haynes, who plaintiff claims "runs the entire police department[,]" since Taylor appointed him as her assistant, Taylor expressed her displeasure at plaintiff's deliberate disregard of her orders. The July 30 memo was copied to plaintiff and Jones, but plaintiff denied seeing the memo and also denied receiving any criticism from either Taylor or Haynes.
At his deposition plaintiff conceded that Taylor's order to personally inspect the officers at their locations may have been legitimate, but insisted it was discriminatory because "it was a menial task not meant for a chief of police." According to plaintiff, he "should not have to go out and inspect stations as the chief of police of the police department. That's a lower level echelon job[.]" Plaintiff testified, "I shouldn't have to be told to do that. I would normally do it under certain circumstances . . . . I will choose what I'm going to do as the chief of police [and] when I'm going to do it."
Plaintiff also testified that he essentially has nothing to do and spends time simply sitting at his desk. In describing the situation, plaintiff testified at his deposition to the following:
Q. Why were your job duties taken away from you?
A. We have a new administration. And because of that, my job duties were removed.
Q. I guess we have an argument about whether all of your job duties or some of your job duties, but we'll have to leave that to the argument that it is.
A. If I can sing a song, all or nothing at all, it should be all or nothing at all for the Chief.
In September 2004, Zajac testified at the OAL hearings about a 2002 meeting at which Ryan, Joseph, and Jones discussed the discipline to impose upon plaintiff. Zajac claimed that Ryan gestured as if he was "struggling, walking around, holding a cane[,]" and said, "What are you going to have, a 70-, 80-year old chief of police?" Jones also motioned with her arms, as if she was confined to a wheelchair.
Based on Zajac's testimony, DHS launched an investigation, hiring David Ganz, an attorney to prepare an investigative report. After conducting numerous interviews, Ganz noted that Ryan and Jones categorically denied the allegations. Regarding Zajac's failure to alert anyone at DHS to the conduct when it occurred, Ganz questioned whether Zajac was lying in order to receive protected "whistleblower" status. In the end, Ganz surmised that "accuser and accused remain . . . diametrically opposed, in their respective recountings of what did or did not occur during the Meeting."
After the close of discovery, defendants moved for summary judgment. The judge concluded that all of plaintiff's LAD claims were time-barred, the complaint having been filed on June 30, 2005, more than two years beyond any act of discrimination of which he complained. Specifically regarding the LAD retaliation claim, the judge further found that plaintiff had failed to allege "either in his complaint or outside his complaint that he  engaged in any LAD[-]protect[ed] activity[.]" The judge dismissed plaintiff's intentional tort claims, finding they were procedurally-barred because plaintiff had failed to file the requisite notice of tort claim under the TCA. This appeal ensued.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Id. at 230-31. In so doing, we view the evidence in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
Plaintiff's brief makes clear that he seeks our review of the motion judge's determination that "as a matter of law," 1) his LAD claims were time-barred; and 2) his "intentional tort claims must be dismissed due to the absence of a [n]otice of [t]ort claim[.]" We deem any objection to the dismissal of plaintiff's other causes of action to be waived. See Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007) (holding that an issue not briefed is deemed waived upon appeal); see also Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2009).
Plaintiff contends that his LAD claims were improperly dismissed because he established a continuing violation of the statute by demonstrating "'at least one discriminatory act occurred within the filing period,'" and that the "'discrimination [wa]s more than the occurrence of isolated or sporadic acts of intentional discrimination.'" Alliance for Disabled In Action, Inc. v. Renaissance Enters., Inc., 371 N.J. Super. 409, 418 (App. Div. 2004), aff'd, 185 N.J. 339 (2005) (quotations and citation omitted). We disagree.
Claims brought under the LAD are subject to a two-year statute of limitations. Montells v. Haynes, 133 N.J. 282, 286, 291-93 (1993). The continuing violation doctrine has been judicially-created "as an equitable exception to the statute of limitations" for claims arising under anti-discrimination and civil rights laws. Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). "Under [the] doctrine, a plaintiff may 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 v. Hunterdon Developmental Ctr., 174 N.J. 1, 6-7 (2002). Thus, "[w]hen an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). "The cases that most neatly fit into the continuing violation theory are those based on a hostile work environment: the acts of harassment continue over a period of time, but the individual acts are insufficient to constitute an actionable claim." Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 102 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002).
We have adopted a three-part test to determine whether a claim for a hostile work environment fits within the continuing violation doctrine.
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?
[Hall, supra, 343 N.J. Super. at 102 (emphasis in original) (quoting Berry v. Bd. of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)).]
The doctrine cannot be applied to bring discrete acts of discrimination within the statutory time limits. Cutler v. Dorn, 196 N.J. 419, 431-32 (2008).
Plaintiff contends the motion judge erred as a matter of law because Taylor's June 30, 2003 memo was within two years of the complaint being filed, thus salvaging the hostile work environment claim under the LAD's continuing violation doctrine. However, the June 30 memo was in response to plaintiff's memo requesting an extension of the time within which to complete uniform and station inspections. Plaintiff disregards the significance of the fact that Taylor issued the order for the first time in March 2003, and reiterated it again in May 2003. Thus, Taylor's June 30 order to do inspections, the last act of discrimination that according to plaintiff fell within two years of the filing of his complaint, was nothing of the sort. It merely approved his request for an extension of time. The actions plaintiff complains of--the "demeaning" order to inspect the force--actually occurred months earlier, and it was only plaintiff's request for an extension of time that somehow creates the bootstrap upon which he now seizes in a vain attempt to avoid the statute of limitations.
Moreover, plaintiff admitted in his deposition that Taylor's explanation for why she ordered him to do the inspections was legitimate. He acknowledged that the assignment was within the purview of his job description, though he felt it was beneath his rank and should have been assigned to someone in a "lower level echelon." Plaintiff further admitted that he resented being ordered to do it, because he wanted to "choose what [he was] going to do as the chief of police [and] when [he was] going to do it." In short, the June 30, 2003 memo is insufficient to establish the last act of a continuing LAD violation.
We also reject, to the extent the argument is made, that the reduction of plaintiff's job duties, ongoing to the present day, evidences a continuing violation sufficient to defeat the statute of limitations. Putting aside the merits of the claim, we note that plaintiff testified that between the time he returned from serving his suspension in fall 2002, to March 2003, Taylor had taken over "all [his] responsibilities[,]" though he expressly retained "authority for day-to-day operations of police personnel."
Thus, by March 2003 at the latest, plaintiff was fully aware that his job description and the functions he was to perform as chief had changed. Moreover, he was under no misapprehension that DHS now embraced a policy of increased civilian leadership of the HSP. Therefore, to the extent that plaintiff believed this was a discriminatory act within the larger hostile work environment at DHS, he was obligated to commence his suit within two years of the events. See Hall, supra, 343 N.J. Super. at 103 ("[i]f . . . a plaintiff knew, or with the exercise of reasonable diligence should have known, that [this] act was discriminatory, [he] may not sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one") (quotation omitted). The alleged reduction of plaintiff's essential job functions had the necessary "degree of permanence [that] should [have] trigger[ed] [his] awareness of and duty to assert his . . . rights." Id. at 102 (quotation and citation omitted).
Lastly, plaintiff contends that Zajac's testimony during the OAL hearing in October 2004 regarding comments made in 2002 demonstrated that Jones and Joseph, who testified the day before that no such comments were made, committed perjury. He claims this is another discriminatory act supporting his hostile work environment claim that occurred within the limitations period. We find this argument to be of insufficient merit to warrant any significant discussion. R. 2:11-3(e)(1)(E). First, different recollections from different witnesses hardly support a claim of perjury. Second, the testimony dealt with events that occurred in 2002, well beyond the statute of limitations. Third, by logical extension, plaintiff's argument, if accepted, would mean that the LAD's statute of limitations would automatically renew whenever an employer or its witnesses testified contrary to a plaintiff's version of events.
In short, we agree with the motion judge that plaintiff's complaint was not filed within the two-year statute of limitations applicable to LAD claims. We affirm the dismissal of those causes of action.
Plaintiff contends his intentional tort claims were improperly dismissed for failure to file a notice of claim under the TCA. He argues that although his complaint was filed one year after Velez was decided, his causes of action "accrued" before the decision was announced. Since the Court gave only prospective effect to its holding, the notice requirement simply does not apply to causes of action already accrued. Velez, supra, 180 N.J. at 297. Thus, plaintiff asserts he was not required to file notice under the TCA.
Defendants argue that plaintiff was required to comply with Velez's holding after it was announced, i.e., file a notice of tort claim under the TCA. They contend that his failure to do so required dismissal. Alternatively, they argue that plaintiff's intentional tort claims were untimely and barred by the applicable two-year statute of limitations.
That Velez applies only prospectively to bar, for lack of notice, intentional tort claims that accrued after June 29, 2004, the date of the decision, is beyond peradventure. See Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 22 (App. Div.) ("notice of claim is required for causes of action accruing after June 29, 2004"), certif. denied, 188 N.J. 489 (2006). There is nothing in the Court's opinion that suggests a plaintiff must comply with the TCA by serving a notice of claim, however late, for a cause of action that accrued prior to June 29, 2004. To this extent, therefore, we agree with plaintiff that the motion judge erroneously dismissed his intentional tort claims on these grounds. However, dismissal is warranted for different reasons. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005) (noting "a correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal").
N.J.S.A. 59:8-8(b) provides that "[t]he claimant shall be forever barred from recovering against a public entity or public employee if . . . [t]wo years have elapsed since the accrual of the claim[.]" See Stoeckel, supra, 387 N.J. Super. at 22-23 (the TCA "expressly require[s] the presentation of claims against public employees within two years, failing which the claims w[ill] be forever barred"). Virtually every fact that plaintiff relies upon to prove his intentional tort claims against the various DHS employee/defendants occurred in 2002 in connection with plaintiff's disciplinary hearings, or upon his return from suspension in November 2002 through the ensuing months into the beginning of 2003. These events are more than two years prior to the filing of plaintiff's 2005 complaint. Therefore, plaintiff's intentional tort claims were time-barred.
This count against the OAG was dismissed with prejudice interlocutorily. Plaintiff has not appealed from that order.
Velez v. City of Jersey City, 180 N.J. 284 (2004).
Plaintiff has made no specific argument to preserve his age discrimination or retaliation claims. Since he was disciplined in 2002, any claim of age discrimination based upon this discrete act is time-barred. Moreover, we agree with the motion judge that plaintiff has not demonstrated a prima facie case of retaliation because he has not shown defendants retaliated against him because of some LAD-protected activity. See Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995) ("[t]o establish a prima facie case of retaliation under LAD, [plaintiff] must show that (1) he was engaged in a protected activity known to defendant; (2) he was thereafter subjected to an adverse employment decision by defendant; and (3) there was a causal link between the two").
Plaintiff has not specifically argued that Zajac's 2004 testimony, revealing for the first time, some defendants allegedly discussed his age in the context of deciding what discipline to impose, tolls the running of the statute through application of the discovery rule. Lopez v. Swyer, 62 N.J. 267, 272-73 (1973). We would reject such a claim since the entire gravamen of plaintiff's complaint was that defendants were "conspiring" since early 2002 to remove him as Chief, the disciplinary charge simply being a mechanism to accomplish this goal. Thus, plaintiff's knowledge of facts supporting his allegations pre-dated Zajac's testimony by several years, rendering the discovery rule inapplicable. See Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000) ("The question is whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another.").
July 24, 2009