JAMES RINALDO v. KENNETH BURKERT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5608-09T1

JAMES RINALDO,

Plaintiff-Appellant,

v.

KENNETH BURKERT, WILLIAM BURKERT,

JOSEPH KRETCH and GEORGE LORD,

Defendants-Respondents.

_________________________________________

Argued March 23, 2011 Decided May 17, 2011

Before Judges Fuentes, Ashrafi and Newman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2833-09.

Grant S. Ellis argued the cause for appellant (Rinaldo and Rinaldo, attorneys; (Mr. Ellis, on the briefs).

Stephen B. Hunter argued the cause for respondents (Detzky & Hunter, L.L.C., attorneys; Mr. Hunter, of counsel and on the brief).

PER CURIAM

Plaintiff James Rinaldo is the former president of New Jersey State Policemen's Benevolent Association (PBA) Local 199A, the local union for supervisors in Union County's Correctional Officers system. In April and May of 2009, executive members of PBA Local 199, the union for non-supervisors in Union County, accused plaintiff of disciplining two correctional officers (COs) in violation of PBA by-laws and rules and sought his expulsion from the union. In response, plaintiff filed a civil complaint alleging a hostile workplace environment and intimidation from PBA Local 199 executive members. Plaintiff named defendants Kenneth Burkert, William Burkert, Joseph Kretch, and George Lord in the complaint. Defendants are the executive members of PBA Local 199.

Plaintiff did not name the State PBA and local affiliates in the complaint.

After filing the complaint, defendants amended the charges against plaintiff to include the filing of the complaint against the members as a violation of the union's by-laws prohibiting civil actions against the union until the complainant first seeks redress within the union grievance system. In an amended complaint, plaintiff advanced three main causes of action: 1) workplace retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; 2) violation of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2; and 3) common law negligence. The gravamen of his complaint is that defendants violated PBA by-laws throughout his expulsion proceedings. The State PBA president referred the matter to the State PBA Judiciary Committee (the Committee). The matter was heard by the Committee and resulted in the Committee's expulsion of plaintiff as a member of PBA Local 199A and Local 199 and his removal as President of PBA Local 199A. Plaintiff filed an internal appeal. The PBA House of Delegates denied the appeal. Plaintiff did not file an appeal with this court. The parties in the underlying action moved for summary judgment. The court granted defendants' motion for summary judgment. We now affirm.

In granting summary judgment on plaintiff's contention that defendants violated the LAD, Judge Lisa F. Chrystal rejected plaintiff's assertion that, as a person in public employment, he had the right to organize because that was not a right recognized under LAD protection. The trial judge found that plaintiff was not within a protected class to which a discriminatory action could attach.

To the extent that plaintiff claimed there was a violation of his "creed," the trial court cited Shuchter v. Div. on Civil Rights, 117 N.J. Super. 405 (App. Div. 1971), certif. denied, 60 N.J. 194 (1972), which ruled that the word "creed" under the LAD was limited to religious principles. Id. at 408. There were no implications of any religious violation that would bring plaintiff under "creed" as defined under the LAD.

Moreover, there was no material adverse change in plaintiff's terms and conditions of employment. While plaintiff may have been removed as Disciplinary Lieutenant by the Committee, plaintiff did not suffer any monetary loss and now holds, as the trial court commented, a "more prestigious Lieutenant position in the County Correctional Services." Thus, plaintiff's retaliatory LAD claim also fails because the underlying claim was meritless. See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007).

In rejecting plaintiff's contention that defendants owed a duty of care and breached this duty when they sought plaintiff's expulsion from PBA membership, the trial judge noted that plaintiff did not specify the duty of care, nor did plaintiff present any evidence to support "the contention that the expulsion was arbitrary, capricious, or invidious." To the extent that plaintiff claimed there was a duty to provide fair representation, that type of claim, the trial judge noted, may not be directed at individual members of the union, but at the collective negotiations representative. Belen v. Woodbridge Twp. Bd. of Educ., 142 N.J. Super. 486 (App. Div.), certif. denied, 72 N.J. 458 (1976). Here, none of the collective negotiated representatives, their unions, the Union County PBA Local 199, Local 199A, or the State PBA were named as defendants. Because there was no evidence of a violation of any duty of care, the court properly granted summary judgment on the alleged negligence claim.

Plaintiff's contention that defendants violated the CRA was, likewise, rejected by the trial judge. That Act is "limited to coercion or threats by persons under "'color of law.'" Here, the trial court recognized that defendants acted according to their positions as PBA leaders, not under any "color of law." Furthermore, plaintiff did not provide evidence that "defendants . . . coerced, threatened, or intimidated plaintiff under 'color of law,'" as provided in N.J.S.A. 10:6-2(c). Additionally, the court observed that there was no evidence that "plaintiff was prohibited from exercising the right to organize." Rather, plaintiff's challenge was more to the "union's grievance process" and not to his right to organize a union or group. That being the case, the court denied plaintiff's claim under the CRA on the motion for reconsideration.

On appeal, plaintiff contends that the trial court erred in dismissing plaintiff's complaint alleging violations under the LAD, the CRA, and negligent conduct. Among his fourteen argument headings, plaintiff also raises a number of points regarding deficiencies in the summary judgment procedures that were allegedly overlooked by the trial court, a lack of notice of the specific provision of the by-laws of the PBA that were alleged to be violated, and jurisdictional arguments regarding reviewability in the Appellate Division or the Law Division of the Superior Court. We need not address these issues because we are satisfied that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also affirm the grant of summary judgment on the claims under the LAD, the CRA, and negligence substantially for the reasons expressed by Judge Chrystal in her written opinion of May 27, 2010, on the motion for summary judgment, and the written opinion of July 9, 2010, on the motion for reconsideration.

We emphasize that plaintiff's action was misguided from its inception. Filing a complaint against defendants was misdirected because they did not expel him from union membership, remove him as President of PBA Local 199A, or remove him as Disciplinary Lieutenant. The consequences of not bringing an action against responsible parties means that this court was without a basis to provide any relief even if relief had been deemed appropriate. Plaintiff could not use this action in lieu of filing an appeal from the decision of the PBA House of Delegates finalizing his expulsion in order to take advantage of a more favorable standard of review. If plaintiff had filed an appeal from the PBA House of Delegates' decision, the standard of review would have been arbitrary and capricious decision making. Nor could plaintiff compel these defendants to restore him to the position of Disciplinary Lieutenant because defendants did not make that decision.