KURT STEVENSON v. CAPE MAY COUNTY BOARD OF FREEHOLDERS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6423-08T2

KURT STEVENSON,

Plaintiff-Appellant,

v.

CAPE MAY COUNTY BOARD OF

FREEHOLDERS,

Defendant-Respondent,

and

AMERICAN FEDERATION OF STATE,

COUNTY, MUNICIPAL EMPLOYEES,

LOCAL 3596,

Defendant.

_______________________________________________

October 27, 2010

 

Argued September 15, 2010 - Decided

 

Before Judges Cuff and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-347-07.

 

Louis P. McFadden, Jr., argued the cause for appellant (McFadden Law Firm, attorneys; Mr. McFadden, on the brief).

 

Susanna J. Morris argued the cause for respondent (Budd Larner, attorneys; Ms. Morris, on the brief).

 

PER CURIAM

Plaintiff Kurt Stevenson appeals the summary judgment entered in favor of his employer, defendant Cape May County Board of Freeholders, dismissing his complaint, which alleged a breach of contract and a violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, based on defendant's decision to promote another electrician to the position of supervising electrician. Plaintiff has abandoned his contract claim and argues only that his LAD claim, which alleged defendant discriminated based on his alleged alcoholism, was not ripe for summary judgment. We disagree and affirm.

In reviewing the summary judgment in question, we examine the issues in light of the facts urged by plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In the trial court, plaintiff asserted he was first employed by defendant in 1995 as a building maintenance worker assigned to the Facilities and Services Department. In 1998, plaintiff considered returning to private contracting work, but his department head, Robert Springer, encouraged him to remain, advising plaintiff he was next in line for the position of supervising electrician.

Plaintiff was promoted in 2001 to the position of senior electrician. Two other electricians in the department retired in 2005, leaving plaintiff and an electrician's helper as the only employees in the Electrical Department.

The record reveals that defendant owns and maintains approximately 100 buildings, and plaintiff, as senior electrician, was required to drive to these building using a county-owned vehicle. In August 2003, plaintiff was arrested for driving while intoxicated (DWI) during off-work hours. He was convicted a few months later and lost his driving privileges for six months.

In January 2004, plaintiff was again arrested and convicted of DWI, this time losing his driving privileges for a two-year period. Defendant held a conference and the parties ultimately entered into an agreement whereby plaintiff received a thirty-day suspension from employment but was permitted to work thereafter on the condition that he attend private counseling. In addition, plaintiff was obligated to seek reinstatement of his driving privileges as soon as possible but no later than May 30, 2006, and he was precluded until that time from operating any county vehicle. As part of this agreement, defendant assigned the electrician's helper, Stephen Lund, to drive plaintiff to the various job sites where he was needed.

In early 2005, prior to the restoration of plaintiff's driving privileges, defendant decided it needed to hire an additional electrician and advertised the position of senior electrician. James Kronemeyer, the Division Manager of Mechanical Services for the Facilities and Services Department, interviewed three or four applicants and concluded that William Gannon was the most qualified for the position.1 Because Gannon demanded a salary in excess of the range permissible for a senior electrician, defendant decided to make a provisional appointment of Gannon to the position of supervising electrician. Plaintiff filed a grievance, but his union chose not to pursue it upon learning that both Gannon's position was provisional and a test would be conducted in the future to fill the position on a permanent basis.

On December 6, 2005, the Department of Personnel listed the supervising electrician position as a vacancy. Plaintiff, Gannon, and Lund applied; they took the test for the position in September 2006. Plaintiff's driving privileges were still suspended at the time the test was administered. Based on the test results, both plaintiff and Gannon were ranked first, and Lund was ranked third. Defendant chose to permanently promote Gannon to the supervising electrician position.

In seeking summary judgment on plaintiff's LAD claim, defendant asserted the decision was based on Gannon's qualifications, work ethics, and habits, as well as the so-called "rule of three," which authorized the selection of any one of the top three named candidates for the position. See N.J.S.A. 11:22-6; Terry v. Mercer County Freeholder Bd., 86 N.J. 141, 147 (1981). Plaintiff claimed the decision was based on his purported alcoholism. According to plaintiff, both of his supervisors were aware of plaintiff's alcohol problems; indeed, defendant's knowledge was indisputable since defendant accommodated plaintiff when he lost his driving privileges for driving while intoxicated.

In dismissing plaintiff's LAD claim, the judge concluded that the complaint only alleged plaintiff was "an alcoholic," and plaintiff ultimately failed to provide an expert report to support that contention. The judge also precluded the filing of an amended complaint by which plaintiff sought to claim he was "perceived" by defendant as an alcoholic so as to negate his need for an expert report. In addition, plaintiff argues there was sufficient evidence to support his contention that the failure of defendant to promote him to supervising electrician was based on "mixed motives."

In reviewing a summary judgment, we apply the same Brill standard that trial courts utilize. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008); C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 57-58 (App. Div. 2006). In examining the summary judgment in question, we have assumed the truth of plaintiff's allegations and have afforded him the benefit of all legitimate inferences. Brill, supra, 142 N.J. at 540. The issues raised on appeal require our consideration of whether plaintiff demonstrated he was a member of a protected class and, if so, whether the evidence of a discriminatory intent was sufficient to negate summary judgment.

Whether plaintiff presented sufficient proof of alcoholism or was perceived by defendant as an alcoholic focuses on the first element of the prima facie case a plaintiff must present as part of the so-called McDonnell Douglas test.2 The Supreme Court held in Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 594 (1988), that alcoholism is a handicap within the meaning of N.J.S.A. 10:5-5(q), and that, as a general matter, an employer may not lawfully discriminate against a person suffering from that disease.3 The Court, however, also recognized that a person who at times has had problems with alcohol is not necessarily an alcoholic and that a claim of alcoholism cannot be sustained absent expert testimony. Clowes, supra, 109 N.J. at 597. Because plaintiff failed to provide an expert report supporting his claim of alcoholism, the trial judge correctly dismissed the LAD claim insofar as it was based on a claim that plaintiff is an alcoholic.

Notwithstanding, plaintiff claims he does not need expert testimony in this case because it is enough for him to show that he was perceived by his employer to be an alcoholic. Although that theory was not alleged in his complaint, plaintiff asserts that the judge erred in refusing to permit his amendment of the complaint to include such a theory. Certainly, the judge acted well within his discretion in refusing to permit an amendment.4 And we find no support for plaintiff's argument that the complaint should be understood as containing the allegation that he was perceived to be an alcoholic. Nevertheless, we need not affirm on this ground, Isko v. Planning Bd., Twp. of Livingston, 51 N.J. 162, 175 (1968); Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008), and may, for present purposes, assume that plaintiff pled and provided sufficient evidence that he was perceived to be an alcoholic.

This assumption, however, merely suggests that plaintiff demonstrated one fundamental element of any disparate treatment case: membership in a protected class. Giving plaintiff the benefit of the doubt on that point does not absolve him from demonstrating the presence of the other requirements of his claim, to which we now turn.

Plaintiff argues that his claim should be analyzed by resort to the mixed-motive test, which was originally outlined for purposes of Title VII cases in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), and later altered in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). This test is also applicable to LAD cases in which the employment decision was arguably based on more than one ground, one of which was unlawful discrimination. McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 523 (2003); Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100-01 (2000); Myers v. AT & T, 380 N.J. Super. 443, 457 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). In such cases, the plaintiff must demonstrate that "an impermissible or discriminatory reason was a motivating factor for the adverse employment decision," upon which the burden shifts "to the employer to prove that it would have made the same decision even without the unlawful motive." Price Waterhouse, supra, 490 U.S. at 244 45, 109 S. Ct. at 1787 88, 104 L. Ed. 2d at 284 85; McDevitt, supra, 175 N.J. at 523. Plaintiffs in such matters may prove this by a preponderance of either direct or circumstantial evidence, or some combination thereof. Desert Palace, supra, 539 U.S. at 99, 123 S. Ct. at 2154, 156 L. Ed. 2d at 94.5 In considering the evidential material offered by plaintiff, and in applying the same summary judgment standard applied by the trial judge, Liberty Surplus, supra, 189 N.J. at 445-46 (2007), we conclude that plaintiff's proofs were inadequate to either support his burden of showing a discriminatory motive or in rebutting defendant's proofs of a legitimate motive; the record is so one-sided that defendant must prevail as a matter of law.

The record reveals that, on earlier occasions, rather than discriminate, defendant actually accommodated plaintiff when he lost his driving privileges for a significant period of time. Notwithstanding uncontroverted evidence that, on earlier occasions, defendant was willing to accommodate plaintiff and allowed him to retain his position despite his lengthy loss of driving privileges, plaintiff argues defendant harbored a discriminatory intent, which surfaced when Gannon was permanently promoted to the supervisor position. Indeed, the only specific assertion of a discriminatory intent in plaintiff's brief is the statement that "both Kronemeyer and Springer told him he did not get the supervisor position because of his alcohol problem." The record, however, does not support that statement. In claiming Kronemeyer and Springer conceded he was not promoted to supervisor because of his alcohol problems, plaintiff cited to his own deposition testimony. That testimony, however, does not support the contention; instead, in his deposition, plaintiff acknowledged Kronemeyer said no such thing.6 And the statement attributed to Springer clearly referred to the occasion when Gannon was originally hired and not the employment decision, over one year later, to award Gannon the permanent position of supervising electrician.7 On that earlier occasion, plaintiff's driving privileges were suspended, and his ability to fully perform the functions of supervising electrician was compromised. The suspension of plaintiff's driving privileges was a legitimate factor for the employer to consider in determining its need when Gannon was originally hired, and there is no evidence in the record to support the contention defendant harbored that unlawful intent when it made the decision in question over one year later.

Moreover, defendant provided considerable evidence that "it would have made the same decision even if it had not allowed [plaintiff's perceived alcoholism] to play such a role" in its decisions to warrant entry of summary judgment in its favor. Price Waterhouse, supra, 490 U.S. at 244-45, 109 S. Ct. at 1788, 104 L. Ed. 2d at 284. That is, even if plaintiff is entitled to an inference that the alleged statements made by Springer when defendant originally hired Gannon in 2005 suggest that defendant harbored a discriminatory motive when Gannon was permanently promoted to supervising electrician over a year later, defendant has amassed evidence of its legitimate reasons for giving the position to Gannon. Certainly, the "rule of three" authorized Gannon's promotion over plaintiff. Kronemeyer also testified that Gannon was the better person for the job. Gannon had, as Kronemeyer explained in his deposition, experience as a supervisor from his prior employment and, while performing as provisional supervisor for defendant, Gannon had demonstrated "a very good way with people as far as the ability to talk and understand what . . . the division heads were looking for." These were certainly legitimate reasons for promoting Gannon as opposed to plaintiff. Considering this evidence against the inference that could perhaps be teased from a statement attributed to Springer, which Springer disputed -- that plaintiff's alcoholism played a role when Gannon was first hired to be provisional supervising electrician -- we are ultimately satisfied the evidence was so "one-sided" that defendant must prevail as a matter of law. Brill, supra, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

A

ffirmed.

1Plaintiff claims he did not respond to this advertisement because he already held the position of senior electrician.

2In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973), the Court held that a plaintiff alleging unlawful discrimination must demonstrate that he or she (1) belongs to a protected class; (2) applied and was qualified for a job for which the employer was seeking applicants; (3) was rejected despite possessing the required qualifications; and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications. Once the prima facie case has been established, a presumption of unlawful discrimination arises and the burden of production shifts to the employer to rebut the prima facie case by "articulat[ing] some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 678. The plaintiff must then "prove by a preponderance of the evidence that the legitimate nondiscriminatory reason articulated by the [employer] was not the true reason for the employment decision but was merely a pretext for discrimination." Anderson v. Exxon Co., 89 N.J. 483, 493 (1982).

3Of course, as the Court noted, there are "situations in which the handicap may affect the alcoholic's ability to do his or her job," and the LAD "does not prohibit discrimination against the handicapped where 'the nature and extent of the handicap reasonably precludes the performance of the particular employment.'" Clowes, supra, 109 N.J. at 594 (quoting N.J.S.A. 10:5-4.1).

4The complaint was filed on June 6, 2007, and an amended complaint was filed on March 28, 2008; neither of these pleadings asserted discrimination based on a perceived disability. Defendant moved for summary judgment on January 13, 2009, after the discovery period had ended and at a time when a trial date had already been scheduled. We will not second-guess the denial of an amendment under those circumstances. See, e.g., Globe Motor Car Co. v. First Fidelity Bank, 291 N.J. Super. 428, 429 (App. Div.), certif. denied, 147 N.J. 263 (1996).

5Desert Palace, thus, in applying the Civil Rights Act of 1991, rejected the Court's earlier holding in Price Waterhouse that the plaintiffs could prove a discriminatory intent in a mixed-motive case by direct evidence only.

6At the portion of the deposition cited by plaintiff, when defense counsel asked whether he "talked to [Kronemeyer] about [whether his DWIs played any role]," plaintiff responded that Kronemeyer "is a man of few words." When counsel asked whether that meant yes or no, plaintiff answered: "I talked to him. He doesn't talk -- he is not -- it wasn't his decision, and no, he doesn't say anything about it."

7In his assertion that Springer told plaintiff he did not get the permanent position of supervising electrician because of his alcohol problems, plaintiff relied on the following testimony, which clearly reveals that the statement attributed to Springer occurred when Gannon was first hired in May 2005, not when the permanent position was filled more than one year later in October 2006:

Q. Did Mr. Springer ever tell you that you were not going to be promoted to the supervising electrician position due to your alcohol problem?

A. Yes.

Q. When did he tell you that?

A. When he told me -- when he told me he was hiring Mr. Gannon.