MICHAEL CORBITT v. TOWNSHIP OF IRVINGTON DEPARTMENT OF RECREATION amp; CULTURAL AFFAIRS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3781-07T33781-07T3

MICHAEL CORBITT,

Plaintiff-Appellant,

v.

TOWNSHIP OF IRVINGTON,

DEPARTMENT OF RECREATION

& CULTURAL AFFAIRS,

Defendant-Respondent,

and

JOHN DUPREE,

Defendant.

____________________________

 

Submitted December 9, 2008 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1323-05.

Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys for appellant (Alan Genitempo, on the brief).

Carmagnola & Ritardi, L.L.C., attorneys for respondent, Township of Irvington (Domenick Carmagnola, of counsel and on the brief; Sean Joyce, on the brief).

PER CURIAM

Plaintiff Michael Corbitt appeals from the March 14, 2008 order of the Law Division granting summary judgment to defendant Township of Irvington (Township), dismissing his employment discrimination complaint. For the reasons that follow, we affirm.

We summarize the factual background from the deposition transcripts and other exhibits submitted on the summary judgment motion. In September 2002, plaintiff was hired by the Township as a supervisory recreation leader/coordinator in the Department of Recreation and Cultural Affairs. On June 5, 2003, while working at the Chris Gatling Recreation Center, plaintiff had an altercation with another employee, John Dupree, who brandished a gun, held it to the side of plaintiff's head and told him to lie down on the floor. Plaintiff managed to escape, injuring his knee in the process.

Plaintiff filed a criminal complaint against Dupree. The Mayor of Irvington informed plaintiff that he had personally instructed Dupree not to come within a certain distance of plaintiff at work. Plaintiff initially engaged in therapy with Dr. Jeffrey S. Kahn, a psychologist with Summit Psychological Services. On July 7, 2003, Dr. Kahn sent a letter to plaintiff's supervisor, Donald Malloy, diagnosing plaintiff with Post-Traumatic Stress Disorder (PTSD), and opining that plaintiff was not "currently able to work and w[ould] require at least two to three months of treatment before he w[ould] be able to return, assuming a positive response to the psychotherapy and possible pharmacotherapy."

At some point, plaintiff began seeing Dr. Sharon Feeney, another psychologist in the same office. On September 9, 2003, Dr. Feeney cleared plaintiff to return to work "on a gradual basis in order to avoid overloading [him] and risking a relapse." Dr. Feeney recommended that plaintiff return on a part-time status, working three days a week and increasing to four and five days a week "as he feels ready." The doctor opined that plaintiff's part-time status would not last "more than a few weeks." On October 23, 2003, Dr. Fenney cleared plaintiff to return to work on a full-time basis.

Upon his return to work, plaintiff was re-assigned to the Irvington Senior Center and, later, to the East Ward Recreation Center; Dupree apparently continued to work at the Gatling Center. Plaintiff acknowledged that his supervisor, Malloy, had offered him three different work schedules at the Senior Center, but none was acceptable to plaintiff because "[t]hose were not the hours that [he] initially agreed upon when [he] accepted the position with the Township . . . ." Eventually, plaintiff's workday schedule was changed from 9:30 a.m. to 4:30 p.m., to 11:00 a.m. to 6:00 p.m. Plaintiff claimed he was not "available to work those hours[,]" but offered no explanation.

As part of his assignment to the Senior Center, plaintiff was required to accompany monthly senior citizen excursions to Atlantic City. Plaintiff stated that he is an "ordained deacon" of his church and that "being an ordained deacon, [he] cannot participate and will not participate in any environment that condones alcohol, gambling and . . . such." Plaintiff claimed that his "superiors[] tried to force [him] to . . . participate in trips to Atlantic City and stay in gambling casinos while the seniors would gamble and do whatever it is they do"; however, he "continually refused to do that, and [he] was told that if [he] didn't do that [he] would be terminated."

Plaintiff acknowledged that, despite pressure from his "superiors," he never accompanied any senior citizen trips to Atlantic City. Moreover, he was not terminated for his refusal to go on those trips. Instead, he was transferred to the East Ward Recreation Center.

In a March 12, 2004 memo to plaintiff, Township Business Administrator Wayne Bradley stated:

Mr. Malloy is endeavoring to fit you into a work environment that best matches your skills and the Department of Recreation's needs. You were assigned to the Senior Citizens Center after returning from an extended sick leave; however, you expressed to Mayor Smith a desire to supervise recreation activities. You are being afforded this opportunity now that Mr. Malloy has a need for a Recreation Leader at the East Ward Recreation Center.

Plaintiff considered the transfer a "hostile" act, however, because, he claimed, the East Ward Recreation Center was located in "the most economically deprived area[,]" of the Township and had "[a] lot of crime . . . that was . . . [a] risk for [him] safety wise." Notwithstanding those concerns, as of the date of his deposition on November 19, 2007, plaintiff was still employed at the East Ward Recreation Center as the "[r]ecreation coordinator, supervising rec aides, staff and building, [and] daily operations."

Plaintiff also claimed religious discrimination because the Mayor and a councilman asked him to "display on the counters, pamphlets, brochures, [and] newspapers of Islamic belief . . . ." Plaintiff stated that he objected to this because he "understood that in government buildings [one is] not supposed to utilize it for any religious beliefs or affiliations."

Plaintiff cited as an act of retaliation against him the termination of his job coaching children in a Township program known as the Newark Leaguers, or Small Fry basketball. In his deposition, however, plaintiff acknowledged that he last coached in this program in April 2003, prior to the Dupree incident and his medical leave. By the time plaintiff returned to work in the fall of 2003, the Township had brought in a company known as Gifted Young Minds (GYM) to run the program. Plaintiff asserted that Township officials had engaged in a "conspiracy" to deprive him of this job.

On February 14, 2005, plaintiff filed a complaint against the Township under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, claiming (1) the creation of a hostile work environment by harassing and discriminating against plaintiff "because of his perceived disability" and "because of his religious beliefs"; and (2) "retaliatory actions includ[ing] . . . reprimanding [him] for his absence from work after changing his schedule to hours he cannot work and relocating [him] to a recreation program that contradict[s] his religious beliefs, denying [him] the opportunity to coach basketball, and conspiring with the Mayor to eliminate [his] job with the Newark Leaguers which [he] was compensated for." Plaintiff added a count seeking damages for assault and battery based upon the June 5, 2003 incident with Dupree.

Following discovery, the Township moved for summary judgment. After hearing arguments, Judge Dennis F. Carey, III, granted the motion, stating:

On September 3rd, 2002, the plaintiff, Michael Corbitt, was employed as a recreation leader by the Department of Recreation and Cultural Affairs, Township of Irvington. It is generally alleged and conceded for the most part that on June 5th, 2003, the plaintiff was assaulted while on the grounds of the Chris Gatling Recreational Center in Irvington.

According to the plaintiff, Mr. Corbitt, another Irvington employee -- John Dupree, the evening recreation coordinator at the Gatling Center -- entered the center and engaged in a verbal exchange with the plaintiff. It is alleged that Dupree rushed plaintiff and pulled out a gun. Dupree allegedly put the gun to the side of the plaintiff's head and told him to lay down on the floor. Plaintiff ran out the back door, injuring his knee in the process.

. . . .

Upon returning to work, plaintiff was reassigned to the senior citizens' facility. Due to the plaintiff's dissatisfaction at the Senior Citizens' Center, the plaintiff was reassigned on his request to the East Ward Recreational Center. Initially, plaintiff failed to report to the East Ward Recreational Center on the appointed day and plaintiff was suspended one day as a result.

While at the Senior Center, one of plaintiff's job duties was to travel with senior citizens to Atlantic City. Plaintiff indicated that he did not want to do so based on his religious beliefs. Apparently, he never went to Atlantic City with the senior citizens.

. . . .

In effect, [plaintiff is] alleging that when he came back to work, he received inferior assignments and that that affected his mental self-worth and self-esteem. The Township of Irvington asserts that it was careful in dealing with the plaintiff and requested medical assurances that he was well enough to return to work. Irvington contends that it received those assurances from Dr. Feeney on October 23rd, 2003.

Additionally, Irvington states that while plaintiff was out of work, he was paid his regular salary, and therefore it was to Irvington's benefit to get plaintiff back to work as soon as possible. Irvington argues that plaintiff was not discriminated against by being transferred to the Senior Center.

While plaintiff was on leave, there was some outsourcing of the Small Fry Basketball Youth Program, one of the main functions at the Gatling Center. Plaintiff acknowledges that he was not guaranteed a place at the Gatling for employment.

As for his transfer to the East Ward Recreational Center, plaintiff himself requested the transfer from [the] Senior Citizen [Center] and Irvington accommodated him. . . . Irvington wanted plaintiff to be working in youth sports again and thought the East Ward Recreational Center would offer such an opportunity.

In addition, Irvington argues that the plaintiff has not set forth any facts to prove that he was retaliated against because of his religious beliefs. Plaintiff alleges that . . . he was reprimanded for not attending the senior citizens' retreat. . . . Irvington argues that once the plaintiff indicated that he did not want to go, he was not forced to go, was not terminated, was not retaliated against, and, in fact, he never went.

. . . .

There is no issue that the plaintiff did suffer from a medical disability. There is no claim that the plaintiff was unable to perform the function at the recreational center, the Gatling Recreational Center, to the same degree and effectiveness as prior to [his] leave of absence.

In the subject matter before me, I disagree that there are any factual issues. In my judgment, the plaintiff has failed to set forth a prima facie case [under the] N.J.L.A.D. The City [sic] of Irvington paid him during the time that he was out of work. They attempted to accommodate him as best as possible.

I don't believe that the plaintiff's argument that he was given substandard work creates a factual issue. Once he returned to work, the job for him was not available. He was paid the same amount of money. And it's inconceivable to this court that there could be any basis for damages based upon the fact that instead of working at the Gatling Center, he was in the Senior Citizen [Center] and then in the Youth Center. It just does not appear to this court, at least, that there is any discriminat[ion], harassment or retaliation. The plaintiff is still working there. He was still receiving his salary.

The plaintiff has failed to allege that he was required to work under conditions unreasonably different from other employees. The very nature of a discriminatory harassment claim suggests some kind of comparative analysis. Plaintiff only briefly mentions that he thought it was unfair that Dupree was not transferred as Dupree allegedly instigated the assault on plaintiff. Other than that, plaintiff makes no comparative analysis in his arguments.

Plaintiff has not mentioned why he was unable to work a slightly later schedule. And it turns out he apparently did not. On this particular issue, it can hardly be alleged that defendant's actions were discriminatory in nature.

Next, plaintiff asserts that the defendant discrimatorily harassed him by assigning him to the Senior Center where his duties included accompanying the seniors on monthly trips to Atlantic City. As it turns out, he was never forced to go to Atlantic City. And under the L.A.D. statute, which defines unlawful employment practices, any acts which "coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of any right granted or protected," this conduct that is even alleged falls far [below] that standard.

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). However, summary judgment should be granted only where the evidence "'is so one-sided'" that reasonable minds cannot differ as to the result. Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Our standard of review mirrors that of the trial court: whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997). We conclude from our analysis of the record that the trial judge properly applied these principles in light of the governing law.

In order to establish a claim of a hostile work environment, plaintiff must prove that the conduct "'(1) would not have occurred but for [his] protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.'" Toto v. Princeton Twp., 404 N.J. Super. 604, 614 (App. Div. 2009) (quoting Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002)).

Plaintiff claimed "protected status" on the basis of his "religious beliefs." The NJLAD has been construed to prohibit discrimination based upon religion. Heitzman v. Monmouth County, 321 N.J. Super. 133, 142 (App. Div. 1999). This record, however, is devoid of any evidence of plaintiff's religious denomination. In his complaint, he describes himself as "an ordained Deacon and Christian Minister." Likewise, in his deposition, he testified that, pursuant to a "church covenant[,]" as "an ordained deacon, [he] cannot participate . . . in any environment that condones alcohol [or] gambling . . . ." As noted, however, plaintiff's supervisors honored his refusal to participate in trips to Atlantic City with the senior citizens. Plaintiff never made any such trips during the course of his assignment to the Senior Center, nor did defendant punish him or take any other adverse actions because of his refusals to go on those trips.

Regarding plaintiff's claim of a hostile environment based upon his "perceived disability," we note that the NJLAD clearly prohibits discrimination "against any person . . . [who] is or has been at any time handicapped[,]" N.J.S.A. 10:5-4.1, and includes within the definition of "handicapped" any "mental[] [or] psychological . . . disability resulting from . . . psychological . . . conditions which prevents the normal exercise of any . . . mental functions . . . ." N.J.S.A. 10:5-5(q). Having been diagnosed with PTSD, plaintiff comes within this statutory classification.

Even if we accord plaintiff the benefit of "protected status" under the NJLAD on this basis, the question remains whether a "reasonable person [would] believe that . . . the conditions of [his] employment ha[d] been altered and that the working environment [was] hostile or abusive." Shepherd, supra, 174 N.J. at 24.

The Supreme Court adopted the disjunctive "severe or pervasive" standard in the context of sexual harassment hostile working environment claims in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 606 (1993). In promulgating that standard, the Court recognized that "most plaintiffs claiming hostile work environment . . . allege numerous incidents that, if considered individually, would be insufficiently severe to state a claim, but considered together are sufficiently pervasive to make the work environment intimidating or hostile." Id. at 607.

Here, plaintiff's hostile working environment claims are based upon (1) the change of his work assignment upon his return from medical leave; (2) being "reprimand[ed]" for refusing to accompany senior citizens on trips to Atlantic City; (3) being asked by the Mayor to display literature of "Islamic belief"; and (4) discontinuing his job of coaching Small Fry basketball.

We conclude that the trial judge fully addressed these claims and properly concluded that plaintiff had "failed to allege that he was required to work under conditions unreasonably different from other employees." As the Court noted in Lehman, id. at 606, "it is the harassing conduct that must be severe or pervasive, not its effect on plaintiff or on the work environment."

Viewing the facts most favorably to plaintiff, as we must when reviewing de novo a grant of summary judgment, Estate of Albanese v. Lolio, 393 N.J. Super. 355, 366 (App. Div.), certif. denied, 192 N.J. 597 (2007), we conclude that the trial judge properly found that plaintiff had "failed to set forth a prima facie case [under the NJLAD]." Based on this record, no "reasonable person [would] believe that . . . [plaintiff's] conditions of employment ha[d] been altered and that [his] working environment [was] hostile or abusive." Shepherd, supra, 174 N.J. at 24.

Affirmed.

 

Default was entered against defendant John Dupree on October 17, 2005.

(continued)

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A-3781-07T3

April 9, 2009