DIANA BRAMLEY v. LOUIS BORDI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIANA BRAMLEY and RAY

BENEVENTO, husband and wife,

Plaintiffs-Appellants,

v.

LOUIS BORDI, in both his official

capacity and as an individual, KEITH

HUMMEL, in both his official capacity

and as an individual, THE TOWNSHIP

OF VOORHEES, a New Jersey governmental

entity,

Defendants-Respondents.

_______________________________________________

December 10, 2015

Submitted November 4, 2015 Decided

Before Judges St. John, Guadagno, and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2494-11.

Heidi R. Weintraub, attorneys for appellants (Kristy L. Krasowski, on the brief).

Brown & Connery, LLP, attorneys for defendants (Michael J. Watson, on the brief).

PER CURIAM

Plaintiff Diana Bramley, a former police officer employed by defendant Township of Voorhees (Township), appeals from the November 8, 2013 order of the Law Division granting summary judgment in favor of the Township and defendants Keith Hummel, the police chief, and Louis Bordi, a lieutenant on the force.

Plaintiff was terminated after she failed to pass a firearms qualification test in May 2009. In plaintiff's complaint she alleges that her dismissal was retaliatory and violated her civil rights as protected by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff also claims that she was subjected to a hostile work environment, gender discrimination, and sexual harassment. Finding no merit to any of plaintiff's claims, we affirm.

I.

Plaintiff was hired by the Voorhees Township Police Department (VTPD) as a police officer in December 2001. Before joining the VTPD, plaintiff had been employed as a seasonal officer with the North Wildwood Police Department, and as an investigator with the Cape May County Prosecutor's Office. She attended two police academies where she received firearms training and was qualified to carry a service weapon. During her time with the Narcotics Task Force, plaintiff qualified three or four times with a .40 caliber Glock firearm.

At the time plaintiff was hired, the VTPD offered several models of firearms including the Heckler & Koch (H&K) and the Sig Sauer (SIG). Plaintiff was given the opportunity to fire both the full size H&K and a smaller H&K, the H&K Compact. Before deciding which firearm she would use, plaintiff consulted with Ken Super, her former firearms instructor at the Cape May County Prosecutor's Office. Super recommended the SIG, but plaintiff claims she was "forced" to take the H&K by defendant Louis Bordi, who was plaintiff's firearms instructor. In January 2002, plaintiff was issued a .40 caliber H&K Compact.

In April 2002, plaintiff passed her first qualification attempt using the H&K Compact. The firearms qualification and requalification standards are issued by the New Jersey Attorney General's Office. Pursuant to guidelines issued by the Attorney General (AG Guidelines), all municipal police officers must take semi-annual requalification tests in order to ensure that they maintain their firearms proficiency. See Semi-Annual Firearms Qualification and Requalification Standards for New Jersey Law Enforcement, (June 2008). The Division of Criminal Justice adopted these guidelines in response to the legislative mandate that all officers comply with standards set by the Division in order to remain exempt from prosecution for unlawful possession of a weapon under N.J.S.A. 2C:39-5.

After qualifying, plaintiff was advised by Lieutenant Bordi "that she needed to improve her strength and weapon handling . . . ." In December 2002, plaintiff failed her requalification attempt and underwent remedial training. She was told by Lieutenant Bordi that her failure was due to her lack of hand strength.

In December 2002, plaintiff was given the Sig Sauer P225 (SIG 225), and was able to requalify with it. Thereafter, she continued using the SIG 225 instead of the H&K Compact as her duty weapon and for qualification from 2003 through 2006.

Between December 2002 and her qualification attempts in 2003, plaintiff purchased and used a manual exercise gripper to improve her hand strength, practiced at a gun range, and dry-fired1 her weapon.

Between 2003 and 2004, the VTPD began testing the Sig Sauer P239 (SIG 239) as a potential replacement for the SIG 225. Chief Keith Hummel suggested that plaintiff use the SIG 239 because it would fit better in her hand. Plaintiff told Hummel that she did not like the SIG 239 because of the shorter trigger pull. Plaintiff used the SIG 225 to pass her qualifying attempts in both the Spring and Fall of 2003.

In Spring 2004, plaintiff, using the SIG 225, passed the day course but failed the night course of her qualification attempt. Plaintiff ultimately passed using the SIG 225. In Fall 2004, Spring and Fall of 2005, and Spring 2006, plaintiff passed her qualification attempts, using the SIG 225. In Fall 2006, plaintiff did not qualify on her initial qualification attempt but, after receiving remedial training, qualified using the SIG 225.

On March 26, 2007, plaintiff failed her initial qualification attempt using the SIG 225. Lieutenant Bordi reported that plaintiff was having "similar strength issues and was now closing her eyes before she fired her rounds." After her failed attempt, plaintiff requested from Lieutenant Bordi a Glock or a SIG 239.2 Plaintiff was told that the Chief does not like Glocks, and was ultimately given a Sig Sauer P226 (SIG 226), which is a larger and heavier gun than the SIG 225.

In April 2007, after one or two weeks of "extensive" remedial training from the VTPD and training from an outside firearms instructor, Vincent DiPasquale, plaintiff passed her Spring 2007 qualification, now using the SIG 226.

On June 25, 2007, the VTPD issued a firearms re-qualification policy entitled "Voorhees Police Department Re-Qualification Process" (Appendix G). Appendix G was issued pursuant to the AG Guidelines, which gave the chief or agency the ability to "determine what action is appropriate" when a non-qualifying participant continues to fail after remedial training.

Appendix G was written and issued by Lieutenant Bordi and Chief Hummel. Lieutenant Bordi testified that Appendix G was a response to plaintiff's extensive requalification efforts in 2007 and was an effort to conserve resources

I remember it taking a week or two to get her qualified. She's not available for duty. It shorts her platoon that she works with while we're spending time trying to get her qualified . . . .

And I had a concern for the effectiveness of our department . . . because if five or six or seven officers decided they weren't going to practice and showed up for their qualification and failed and only practiced when they got remedial training, like [plaintiff] was doing, what her habit seemed to be, then that would severely affect how we distribute our manpower and provide service.

Appendix G proscribed the type of remedial instruction that a non-qualifying participant would receive under the AG Guidelines. If an officer failed to qualify on the daytime course, the officer was still required to attempt the night course. Regardless of the score on the night course, the "non-qualifying officer will immediately re-shoot for qualification" on the day course. If a passing score is subsequently achieved on the day course and the officer still needs to qualify on the night course, the officer is permitted "one more attempt at re-qualification" before beginning remedial training. Finally, if the officer still failed either the day or night course, they would receive "remedial instruction in firearms marksmanship[,]" which would be determined by the Firearms Instructor and Supervising Firearms Instructor "after making observations of the deficient shooter."

Appendix G provides that remediation includes a two-day remedial training course, emphasizing "basic principles of marksmanship" as well as safety with firearms, handling and weapon manipulation, grip, stance, trigger control, sight alignment, breath control, follow through, reloading, and clearing malfunctions. Remediation also includes "practical firing at the firearms instructor's discretion[.]" After remedial instruction, if the officer failed to qualify the officer would "be disarmed and [would] not be authorized to carry any weapon while on or off duty," would "not be permitted to return to full duty until a passing score is achieved," and would be required to file a report with the Supervising Firearms Instructor the following day detailing everything done concerning the officer's preparation since the last qualification. After completion of the two-day course, the officer would be "scheduled to re-shoot for qualification."

After remediation and on the requalification attempt, an officer is then required under the AG Guidelines to receive the passing score of 80% on "two (2) consecutive attempts" at both the daytime and nighttime courses. Appendix G states that "[f]ailure to complete the basic firearms training course, to include . . . re-qualification[,] will subject the officer to termination of employment . . . ."

After the implementation of Appendix G in 2007, plaintiff qualified on her initial attempts for her Fall 2007, Spring 2008, and Fall 2008 attempts using the SIG 226.

On May 4, 2009, plaintiff failed her first qualification on the day course using the SIG 226. Plaintiff then attempted and failed her second qualification attempt with the same firearm. The firearms instructors attributed plaintiff's failure to the fact that she "let [her] hand strength go." Plaintiff was then given an opportunity to take practice shots using the SIG 239. Lieutenant Bordi explained that he felt the problem was plaintiff's hand strength, not the firearm. Plaintiff told Lieutenant Bordi that since January 2009 her practice was limited to dry firing the weapon, as her membership to the gun range had expired. Plaintiff was given remedial instruction and permitted to fire 200 practice rounds. Plaintiff subsequently took, and failed, her third qualification attempt with the SIG 226.

On May 5, 2009, plaintiff requested a requalification with the SIG 239 because she believed her failures were due to the firearm. Plaintiff received remedial firearms instruction and was told by Lieutenant Bordi that if she could not qualify on May 6, 2009, she would be scheduled for a final qualification on May 8, 2009.

On May 6, 2009, plaintiff did remedial training with the SIG 226, but ultimately used the SIG 239 for her requalification attempt. Plaintiff failed her requalification attempt on May 6 and Lieutenant Bordi scheduled a final qualification attempt on May 8. Lieutenant Bordi told plaintiff that he made the SIG 239 available for her to practice with at a shooting range that night and the following day.

On May 8, 2009, plaintiff failed her final qualification attempt using the SIG 239. Based on these failures, plaintiff was served with a preliminary notice of disciplinary action. After a departmental hearing, a final notice of disciplinary action was issued on July 29, 2009, terminating plaintiff's employment with the VTPD on charges of inability to perform duties under N.J.A.C. 4A:2-2.3(a)(3).

Plaintiff appealed and the matter was referred to the Office of Administrative Law. After several days of testimony, the administrative law judge filed an initial decision with the Civil Service Commission recommending that plaintiff's appeal be withdrawn.

Plaintiff ultimately withdrew her administrative appeal and filed a complaint in the Law Division. On November 8, 2013, after hearing oral argument, the motion judge granted defendants' motion and dismissed plaintiff's complaint with prejudice.

II.

In reviewing whether summary judgment was properly granted, "we apply the same standard governing the trial court -- we view the evidence in the light most favorable to the non-moving party." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). If the record reveals that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law," then summary judgment should be granted. R. 4:46-2(c).

A genuine issue of material fact exists where "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Like the trial court, we must consider whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 536. In doing so, we give the plaintiff "the benefit of all reasonable inferences that may be drawn in her favor." Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 61 (1980) (citing R. 4:46-2). Issues of law are subject to the de novo standard of review, and the trial court's determination of such issues is accorded no deference. Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt., 210 N.J. 597, 605 (2012).

A.

Plaintiff first challenges the motion judge's determination that she did not present a prima facie case of retaliation. Plaintiff alleges that defendants retaliated against her after she participated in a review involving fifty-four Township employees, following a civil verdict in favor of a former police officer, Jeffrey Nardello. Township Solicitor Howard Long and Township Administrator Lawrence Spellman conducted the interviews in 2006 (Nardello interviews). Plaintiff claims that when she was interviewed in August 2006, she was told that the discussions were confidential and the substance of the interviews would not be disclosed to anyone, including defendants.

During plaintiff's interview, she referred to Chief Hummel as a "figure head" and said he did not actually run the Department, Lieutenant Bordi did. She said that Lieutenant Bordi was not a good leader and gave some officers preferential treatment. Plaintiff rated Chief Hummel "low" and Lieutenant Bordi "extremely low." Plaintiff also told Long and Spellman that, in 2002, another officer made sexual advances toward her, but admitted that she never reported the incidents.

Long provided reports to the Township Committee summarizing the interviews. Long recalled that he may have disclosed to Chief Hummel how the officers ranked him as compared to other officers, but did not disclose "what any one officer would have said."

In pertinent part, the LAD provides that it shall be an unlawful employment practice or unlawful discrimination

For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12(d).]

A prima facie claim of retaliation requires a showing that: "(1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is a causal link between the protected activity and the adverse employment consequence." Victor v. State, 203 N.J. 383, 409 (2010).

Plaintiff's Nardello interview took place in August 2006, more than two years before her termination in May 2009. Conceding an absence of "temporal proximity" between plaintiff's comments in the interview and the alleged retaliation, plaintiff suggests that a jury could infer that Lieutenant Bordi and Chief Hummel, who were both defendants in the Nardello case,3 purposely delayed their retaliatory actions against her and "lay in wait for an opportunity to terminate [her] rather than do it in such an obvious . . . manner."

Plaintiff's claim is untethered to any record evidence and far too speculative to meet the required element of a prima facie case of retaliation. See Pilkington v. Bally's Park Place, Inc., 370 N.J. Super. 140, 151-52 (App. Div. 2003) (rejecting plaintiff's claim that employer's refusal to rehire her was retaliatory), rev'd on other grounds, 180 N.J. 262 (2004).

Also suffering from speculatorial infirmities is plaintiff's claim that Lieutenant Bordi and Chief Hummel were aware of her critical comments made during the Nardello interview because she was one of the officers interviewed and Long "may have disclosed to Hummel how the fifty-four [] officers who were interviewed ranked him as compared to other high ranking officers within the Department." While there may be some cases where a "sophisticated employer" does not immediately retaliate and decides to wait "until an opportunity to terminate" presents itself, there is insufficient proof for a jury to draw such an inference here. See Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995). There is no evidence that defendants knew any details of plaintiff's Nardello interview. As the motion judge observed, "plaintiff does not demonstrate any evidence to support that the supervisor terminating her knew anything about the specific testimony that she gave regarding the Nardello interview . . . ."

Indeed, the record demonstrates evidence of just the opposite. Defendants provided opportunities for plaintiff to remediate her May 4, 2009 qualification attempt by allowing her to attempt to requalify on both May 6 and May 8, and giving her the SIG 239 firearm that she requested.

Considering the more than two-year gap between the Nardello interview and plaintiff's firing, and the absence of proof showing that defendants were aware of the substance of her comments, the motion judge appropriately determined that plaintiff failed to establish a prima facie case of retaliation.

B.

Plaintiff next challenges the determination that she failed to establish a prima facie case of gender discrimination. A prima facie case of gender discrimination requires a plaintiff to show that she is a member of a protected class; that she was performing her job at a level that met the employer's legitimate expectations; that she was terminated; and that she was terminated under circumstances that give rise to an inference of unlawful discrimination. Young v. Hobart West Grp., 385 N.J. Super. 448, 463 (App. Div. 2005).

Plaintiff blames her failure to pass the firearms qualification on defendants' "failure to provide her a properly fitting gun given her petite stature and small hands as a female[.]" Plaintiff's claim ignores the wide choice in weapons that were offered to her, her long history of struggling to pass mandatory firearms qualification tests, and extensive remedial firearms training provided to her.

In the years leading up to her termination, plaintiff failed to qualify in accordance with the AG Guidelines multiple times and with different weapons: December 2002 (H&K Compact); Spring 2004 (SIG 225); Fall 2006 (SIG 225); March 2007 (SIG 225); May 2009 (SIG 226 and SIG 239). From at least January 2009 until her failed qualification resulting in her termination in May 2009, plaintiff failed to fire any bullets from any gun, did not go to a gun range, and only dry-fired her weapon. Plaintiff's expert admits that plaintiff is a "problem shooter." Plaintiff struggled with her hand strength ever since she joined the VTPD. Plaintiff was given three days of opportunities to qualify under the AG Guidelines, May 4, 6, and 8, 2009, and day-long breaks in between for practice and remediation, May 5 and 7, 2009. Plaintiff still failed to qualify, even after defendants permitted her to use a different firearm, the SIG 239.

Plaintiff's failure to qualify for the use of her service weapon is a legitimate and non-discriminatory reason for her termination. We are satisfied that plaintiff has failed to produce sufficient evidence for a reasonable juror to conclude that her termination was a result of improper gender discrimination.

C.

We find the remainder of plaintiff's arguments in support of her claims alleging hostile work environment and sexual harassment under the LAD lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Dry-firing is the shooting of an unloaded firearm.

2 Plaintiff's testimony is contradicted by Lieutenant Bordi who said that plaintiff requested a change of weapon to the SIG 226 because she was more comfortable with it.

3 Nardello v. Twp. of Vorhees, 377 N.J. Super. 428 (2005).