J.S. v. BOROUGH OF ENGLEWOOD CLIFFS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO.0 A-5938-12T1

J.S.,

Plaintiff-Appellant,

v.

BOROUGH OF ENGLEWOOD CLIFFS,

ENGLEWOOD CLIFFS POLICE

DEPARTMENT, and DEPUTY CHIEF

MICHAEL CIOFFI,

Defendants-Respondents.

_____________________________

Argued October 6, 2014 Decided May 18, 2015

Before Judges Espinosa, St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3324-10.

Eric V. Kleiner argued the cause for appellant.

Thomas B. Hanrahan argued the cause for respondents (Thomas B. Hanrahan and Associates, LLC, attorneys; Mr. Hanrahan, of counsel and on the brief; Joseph P. Kreoll, on the brief).

PER CURIAM

Plaintiff J.S. appeals from the Law Division's June 7, 2013 order granting summary judgment in favor of defendants, his former employer, Englewood Cliffs Police Department (ECPD), its then Deputy Chief, Michael Cioffi and the Borough of Englewood Cliffs.1 Plaintiff filed his complaint after the Borough pursued his involuntary disability retirement. In the complaint, he alleged violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (counts one and two), and violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14 (count four).2 Judge Mark Russello granted defendants' motion for the reasons stated in a comprehensive oral decision. Plaintiff argues on appeal that the trial court erred by dismissing his CEPA and LAD claims as being filed out of time and on substantive grounds. He further argues the trial court failed to completely address the required CEPA analysis or the law of hostile environment claims under the LAD. Defendants disagree and essentially argue the court correctly entered summary judgment based on arguments they made to the motion judge, with which the judge agreed.

We have carefully reviewed the record and considered all applicable legal principles. We affirm.

I.

We recite the facts found in the summary judgment record, viewed in a light most favorable to plaintiff. Robinson v. Vivirito, 217 N.J. 199, 203 (2014); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff had been a member of the ECPD since July 1994. He is of Lebanese descent and his wife is a Turkish Muslim. Also, plaintiff acknowledges he "suffers from the permanent illness or chronic disease referred to commonly as 'alcoholism.'"

Plaintiff was first diagnosed as having a substance abuse issue related to alcohol when he started to be chronically absent from work. In January 2004, plaintiff failed to attend a mandatory training class, reported the next day for work intoxicated and admitted to his superiors he consumed alcohol just seven hours earlier. On January 15, plaintiff met with his superiors, who together advised him to "recognize his problem and take the necessary actions." The Chief of Police at that time, Lawrence R. Whiting, requested plaintiff report back to him within seven to ten days regarding what actions plaintiff had taken to achieve sobriety. Plaintiff never reported back and, instead, called out sick four more times between January 29 and February 6, 2004. On the last day, another officer reported plaintiff was intoxicated at home and later hospitalized overnight. On February 9, 2004, the ECPD placed plaintiff on extended sick leave, requiring him to participate in Alcoholics Anonymous (AA) and a psychological examination to determine his fitness for duty. Plaintiff also surrendered his three off-duty weapons.

Psychologist Guillermo Gallegos, Ph.D., evaluated plaintiff on February 27, 2004. Plaintiff admitted he was a recovering alcoholic and suffered from depression, for which he had been taking medication since June 2003. Gallegos determined plaintiff was not fit for duty and recommended he be placed on administrative duty. The doctor also advised plaintiff should not be permitted to carry an off-duty weapon.

Plaintiff was assigned to desk duty effective March 14, 2004. On April 20, 2004, Whiting sent Lieutenant Michael McMorrow to plaintiff's home where he found plaintiff inebriated. Plaintiff then entered an inpatient rehabilitation facility for a twenty-eight day course of treatment until May 24, 2004. After plaintiff completed the program, Gallegos reevaluated plaintiff and determined he was fit for full duty, to which plaintiff returned on June 29, 2004.

However, in late September 2004, plaintiff reported to work with watery eyes and an odor of alcohol. The following month, plaintiff was asked to leave his off-duty weapon in his locker as a precaution. In late November 2004, plaintiff called out sick for three consecutive midnight shifts. On November 29, 2004, ECPD officers again went to plaintiff's home, found him intoxicated and transported him to a hospital for treatment. ECPD officers discovered plaintiff possessed an off-duty weapon at home which violated plaintiff's prior agreement with the department. As a result, ECPD recommended plaintiff take vacation time until he could be reevaluated by Gallegos.

Gallegos evaluated plaintiff again in December 2004, recommended plaintiff was not fit for duty, and determined plaintiff "constituted a danger to self and others." Gallegos said plaintiff should not recover his service weapon and "strongly recommended that [plaintiff] be terminated" by ECPD. On December 14, 2004, plaintiff was placed on indefinite medical leave, with a recommendation he apply for disability retirement.

Plaintiff completed an outpatient treatment program and attended AA meetings for six months. He then petitioned the department to return him to full duty.

Gallegos re-evaluated plaintiff for a fourth time in June 2005, determined plaintiff was fit for duty and recommended he be given another opportunity as he had maintained his sobriety for six months. Between 2006 and 2008, ECPD's then police chief, Thomas Bauerschmidt, and Cioffi both expressed their concerns about plaintiff possibly relapsing, but the department took no action during that time.

In 2009, the ECPD had to address plaintiff's alcohol issues again. On March 19 and 20, plaintiff called out sick and then reported the next day for his overnight shift with an odor of alcohol. Officer Ronald Waldt, who was on patrol with plaintiff, told Cioffi he sensed an "overwhelming odor of cologne and mouthwash emanating from [plaintiff]," like he was attempting to mask the odor of alcohol. Waldt also reported he was hesitant to initiate any motor vehicle stops that night, as plaintiff would have been his only backup. Cioffi then checked the interior of the patrol car and detected a strong perfume odor.

Cioffi initiated an internal investigation into plaintiff's conduct and listened to the voice recordings of plaintiff calling out sick on the two nights before his last scheduled midnight shift. He heard plaintiff speaking in a slurred voice in one of the calls. Officer Scott Mura, who had received the March 19 call, also confirmed plaintiff's voice sounded unusual.

On March 27, plaintiff met with Bauerschmidt and Cioffi, who told him about the internal affairs investigation. Plaintiff did not deny he had relapsed, but spoke about the stress in his life due to his parents' deteriorating health and his then-fiancée's immigration status. Plaintiff was placed on sick leave and ordered to attend another evaluation with Gallegos, which plaintiff predicted was "going to be the same." Plaintiff again agreed to leave his weapons in his locker at the department.

Gallegos reevaluated plaintiff on March 31, 2009, and concluded he relapsed and was unfit for duty, because he (1) was not attending AA; (2) could not recall the reason for some of his absences from earlier that year; and (3) reported in the past year, on a typical day off, he drank at least one glass of wine, and that he sometimes consumed two. Gallegos advised plaintiff should not be armed with a weapon, and again recommended his employment be terminated. As a result, on April 2, 2009, Bauerschmidt suspended plaintiff with pay for medical reasons. Plaintiff did not request a hearing to challenge this suspension.

Two weeks later, plaintiff was evaluated by his own psychiatrist, David Gallina, M.D., to get a second opinion about his condition and his fitness for duty. Plaintiff admitted he had been drinking on and off since 2005, and his longest period of sobriety lasted nine months. Gallina's report did not state plaintiff was fit for duty, but, rather, recommended he participate in AA, another outpatient rehabilitation program, and then be re-evaluated to determine his fitness for duty.

On May 13, 2009, the Borough's mayor and council met with plaintiff and his attorney, and then passed a resolution to refer plaintiff to the pension board to determine if he was eligible for involuntary disability retirement. In accordance with the resolution, ECPD submitted plaintiff's application for involuntary disability retirement to the Police and Fireman's Retirement System (PFRS) on June 10, 2009. The PFRS notified plaintiff on November 9, 2009, of its decision approving his involuntary disability retirement, after finding he was totally and permanently disabled due to his alcoholism. As a result, plaintiff received his last salary check on November 30, 2009. Plaintiff moved for reconsideration of PFRS' decision because it had not considered Gallina's evaluation. In response, PFRS ruled plaintiff should be evaluated by an independent medical examiner of its choosing. After that evaluation, PFRS denied plaintiff's request to be reinstated to his employment. Plaintiff appealed the decision and requested a hearing before an administrative law judge.3

Plaintiff filed his complaint in this action on April 9, 2010, alleging violations of CEPA and LAD. Defendants moved for summary judgment and argued plaintiff's CEPA and LAD claims were filed out-of-time because the only events alleged to have occurred within the limitations period were those leading to his involuntary retirement. Those events could not be considered retaliatory or discriminatory, as plaintiff's retirement was based on two experts finding he was not fit for duty. They also argued plaintiff's LAD claims were barred by CEPA's waiver provision, N.J.S.A. 34:19-8, as they were based on the same facts. Defendants also claimed they were entitled to a "safe haven" from liability for a hostile work environment because defendant did not follow the reporting procedures in defendants' well-publicized anti-harassment policy. Defendants further argued plaintiff had presented no evidence of the alleged discriminatory conduct, nor proved Cioffi aided and abetted in his involuntary retirement. Finally, defendants argued plaintiff could not claim that he was entitled to punitive damages, because he did not prove defendants engaged in intentionally discriminatory conduct.

In response, plaintiff argued Cioffi's internal affairs investigation and the subsequent events leading to his termination, constituted discriminatory and retaliatory acts in violation of CEPA and LAD, all of the events occurred within the limitations period as he did not "discover" there were allegations about his drinking until late 2009, and Cioffi had fabricated the case against him. He stated the "gravamen" of his case was the events leading up to his involuntary retirement.

In granting defendants' motion as to counts one and two, the court compared the allegations of the complaint as they related to CEPA and LAD, and found them to be "the very same facts relied upon" for both claims. The court cited CEPA's "waiver exception," N.J.S.A. 34:19-8, and the Court's opinion in Young v. Schering Corp., 141 N.J. 16 (1995), and determined the statute "operates to bar all claims that are substantially related to the CEPA claim, which [] depend upon the same facts . . . necessary to prove a CEPA retaliation claim . . . ." Any "claim pursuant to LAD [were] waived by the institution of the very same claims pursuant to CEPA." The court also found, even if the waiver provision did not apply, defendants were still entitled to summary judgment as to the first two counts of the complaint because the only adverse employment consequence plaintiff suffered was that "defendants had failed to give [plaintiff] a third chance in 2009 to complete yet another round of treatment for his alcoholism."

Judge Russello then reviewed the law applicable to the LAD claim and found plaintiff's "self-serving conclusion" that the Borough's decision to petition for his involuntary retirement was due to his Lebanese ancestry and his wife's religion did not establish any basis for denying defendants' motion. The court dismissed plaintiff's LAD claims in the first two counts, finding his termination justified because the nature and extent of his alcoholism posed a threat to both his safety and that of the public. In addition, the judge found plaintiff's LAD claims were time-barred because he failed to allege any discriminatory acts that "occurred within the two year statutory filing period . . . ."; defendants were entitled to a "safe haven" against plaintiff's LAD hostile work environment claim because plaintiff failed to report any of his allegations in accordance with his employer's harassment reporting procedures; and plaintiff did not prove Cioffi, individually, aided and abetted any other defendant's discriminatory conduct in violation of LAD, as required by the statute for individual liability.

The judge granted summary judgment dismissing plaintiff's CEPA claims as time-barred. He also found the CEPA claim failed on its merit because plaintiff's involuntary retirement was not the result of a retaliatory action.4

II.

In reviewing a summary judgment motion, an appellate court applies the same standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 66 (2015). We first determine if there is a genuine issue as to any material fact. "In considering whether there exists a genuine issue of material fact, the motion judge 'must consider whether the competent evidential materials presented, when viewed in the light not favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (quoting Brill, supra 142 N.J. at 540); R. 4:46-2(c). If there is no genuine issue of fact, "[w]e then decide whether the motion judge's application of the law was correct." N.J. Dep't of Envtl. Prot. v. Alloway Twp. & Salem, 438 N.J. Super. 501, 507 (App. Div. 2015) (citation and internal quotation marks omitted).

III.

We turn our attention to plaintiff's argument that he is entitled to the protection and remedies found in CEPA and LAD.

A.

CEPA is a civil rights statute, intended "to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). Because of its remedial purpose, CEPA must be "construed liberally." Ibid.

The pertinent portions of CEPA provide that,

An employer shall not take any retaliatory action against an employee because the employee does any of the following

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or

(2) is fraudulent or criminal . . . .

[N.J.S.A. 34:19-3].

To maintain a cause of action pursuant to CEPA, a plaintiff must demonstrate (1) he reasonably believed his employer's conduct was illegal or against public policy; (2) he performed a "whistle-blowing" activity, as set forth in N.J.S.A. 34:19-3(c); and (3) "an adverse employment action was taken against him"; and (4) a causal link exists between his whistle-blowing and the adverse employment action. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). We agree with Judge Russello that plaintiff's CEPA claim was time-barred because it was not filed within one year of any retaliation for any alleged "whistleblowing." We also agree the claim was properly dismissed as there was no causal connection between plaintiff's alleged disclosures and his involuntary retirement.

Plaintiff's complaint alleges he made three disclosures protected by CEPA. First, plaintiff reported to a captain that he heard Cioffi's daughter, who was secretary of the Englewood Cliffs Ambulance Corp (ECAC), burglarized the ECAC's office and its personnel files in June 2007. Plaintiff reported the incident several months later, but neither the ECPD nor the ECAC took any action.

The second alleged disclosure occurred in December 2007, when plaintiff observed Cioffi being intoxicated and unruly as he allegedly "tackled" another officer and Bauerschmidt. Plaintiff complained to an ECPD captain and inspector about Cioffi's not being disciplined or charged, but was told that nothing could be done because of Cioffi's political influence.

Finally, according to plaintiff, on February 25, 2009, Cioffi ordered him to enter a home with a serious gas leak, and to open its doors and windows for ventilation. Plaintiff was wearing a polyester uniform with equipment at the time, which could have set off a static charge and seriously injured him. Plaintiff did not document the incident or make a formal complaint.

CEPA prohibits employers from taking any retaliatory action against an employee who discloses to a supervisor or public body that the employer has engaged in fraudulent or illegal conduct. N.J.S.A. 34:19-3. "Any claims brought pursuant to the CEPA must be filed within one year of 'a violation of any of the provisions of this act.'" Villalobos v. Fava, 342 N.J. Super. 38, 45 (App. Div.)(quoting N.J.S.A. 34:19-5) certif. denied 70 N.J. 210 (2001). 'Retaliatory action' means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). "The definition of retaliatory action speaks in terms of completed action[, and] . . . does not encompass action taken to effectuate the 'discharge, suspension or demotion.'" Ivan v. Cnty. of Middlesex, 595 F. Supp. 2d 425, 467 (D.N.J. 2009) (quoting Daniels v. Mut. Lifegg Ins. Co., 340 N.J. Super. 11, 16 (App. Div.)(internal quotations marks omitted), certif. denied, 170 N.J. 86 (2001)); see Keelan v. Bell Commc'ns. Research, 289 N.J. Super. 531, 539 (App. Div. 1996). In a claim based on "wrongful termination, the CEPA cause of action accrues on the date of actual discharge, which is defined as the last day for which the employee is paid." Villalobos, supra 342 N.J. Super. at 48. However, actions occurring during the period when a plaintiff still has an opportunity to persuade the employer to rescind its termination decision are not considered. See Daniels, supra, 340 N.J. Super. at 16-17.

Applying these principles, the motion judge correctly determined that, because plaintiff filed his complaint on April 9, 2010, any conduct covered by the claim must have occurred on or after April 9, 2009. The alleged retaliatory actions that occurred after April 9 were (1) plaintiff's meeting with his attorney, the mayor and council, and the passing of the May 13 resolution to refer plaintiff to the pension board to determine if he was eligible for involuntary disability retirement; (2) the department's submitting his application for involuntary disability retirement to PFRS on June 10; (3) PFRS' retiring plaintiff on November 9; and (4) his last salary payment on November 30. The retaliatory actions occurring before November 9, 2009, if any, do not qualify as completed personnel actions, which had an effect on plaintiff's compensation or job rank, as plaintiff could have successfully challenged or avoided his termination before November 9. The only act that could be actionable under CEPA was, therefore, was his involuntary retirement on November 9.5

As to the events leading to his involuntary retirement, plaintiff failed to offer any evidence establishing a causal nexus between that action and his alleged whistle-blowing activities, relying only upon his unsupported conclusory statements. While a court must view the evidence in the light most favorable to non-movant, "it is evidence that must be relied upon to establish a genuine issue of fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014), certif. denied, 220 N.J. 269 (2015). "Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Ibid. (citation and internal quotation marks omitted) "[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." Id. at 606 (citation and internal quotation marks omitted). Plaintiff failed to present evidence that would create a genuine issue of fact regarding a causal nexus.

The record evidence established plaintiff was involuntarily retired after being given multiple opportunities to address his alcoholism issues. The actions of the mayor and council were based on two experts' opinions that plaintiff was not fit for duty. Plaintiff never challenged his history of alcoholism, including his relapse in March 2009. While plaintiff alleged his involuntary retirement was the result of retaliation by Cioffi for his earlier disclosures, there was absolutely no evidence to support his claim.

We have no cause to disturb Judge Russello's decision to dismiss plaintiff's CEPA claims.

B.

We address plaintiff's LAD claims by first determining whether the motion judge properly limited their scope as a result of being subsumed by CEPA's waiver provision. Plaintiff claimed he was subject to discrimination due to his heritage and his wife's heritage, and religion, as well as his disability, and subjected to a hostile work environment based on several alleged events.

The motion judge dismissed the LAD claims in large part because plaintiff's CEPA complaint was based on the same adverse employment action allegations he relied upon for his LAD claim. In his LAD claim, he alleged his involuntary retirement was the result of Cioffi's discriminatory and hostile actions. As the motion judge correctly determined, those claims could not survive CEPA's waiver provision, which states

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

[N.J.S.A. 34:19-8.]

The Court in Young explained the provision as follows

[O]nce a CEPA claim is "instituted," any rights or claims for retaliatory discharge based on a contract of employment; collective bargaining agreement; State law, whether its origin is the Legislature, the courts, the common law or rules of court; or regulations or decisions based on statutory authority, are all waived. The waiver exception contains a list of sources of law that may provide a bundle of rights protecting employees from retaliatory discharge. Parallel claims based on those rights, privileges and remedies are waived because they represent multiple or duplicative claims based on retaliatory discharge.

[Young, supra, 141 N.J. at 29.]

"As an exception to the general remedial scheme of CEPA, the waiver provision must be construed narrowly." Ibid. It is not intended to "foreclose a legitimate cause of action arising from the same underlying factual circumstances but, nonetheless, not includ[ing] or involv[ing] the retaliatory conduct that is essential to the CEPA claim." Id. at 26 (emphasis added). The waiver provision does not bar an LAD claim when "retaliatory discharge [is] not an element of proof required to support [the LAD] claims." Id. at 30 (citation omitted). "'[T]he waiver provision applies only to those causes of action that require a finding of retaliatory conduct that is actionable under CEPA. The waiver exception does not apply to those causes of action that are substantially independent of the CEPA claim.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 502 (2006), (quoting Young, supra, 141 N.J. at 29). A claim is substantially independent from a "retaliatory discharge claim when it "require[s] different proofs than those needed to substantiate the CEPA claim." Young, 141 N.J. at 31.

In this case, CEPA's waiver provision barred plaintiff's LAD claim only with respect to his alleged wrongful discharge his retirement. See, Casper v. Paine Webber Grp. Inc., 787 F. Supp. 1480, 1509 (D.N.J. 1992). His LAD claims of discrimination or hostile work environment were not barred by the waiver provision, but were still properly dismissed.

C.

LAD was enacted to protect the civil rights of employees, and "the public's strong interest in a discrimination-free workplace." Lehmann v. Toys 'R' Us, 132 N.J. 587, 600 (1993) (citation omitted). Under LAD, it is unlawful for an employer to discriminate against, terminate, or "require to retire" an employee on the basis of race, ancestry, national origin, or disability. N.J.S.A. 10:5-12(a). LAD does not, however, prohibit disparate treatment of an employee where "the nature and extent of [his] disability reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 594 (1988).

Employment discrimination claims proceed in accordance with the McDonnell Douglas, burden-shifting methodology, McDonnell Douglas Corp. v. Green, 411 U.S. at 792, 802-03, 93 S. Ct., 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973), which requires

(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate non-discriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.

[Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 331 (2010) (citation and internal quotation marks omitted).]

A plaintiff must first make a prima facie showing of defendants' discriminatory conduct. Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). "The precise elements of a prima facie case must be tailored to the particular circumstances" of the case. Ibid. To sustain a prima facie claim of racial, religious, or disability discrimination, a plaintiff must prove that (1) he "belongs to a protected class; (2) [he] was performing [his] job at a level that met [his] employer's legitimate expectations; (3) [he] suffered an adverse employment action; and (4) others not within [his] protected class did not suffer similar adverse employment actions." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005); see also Viscik, supra, 173 N.J. at 14.

Discriminatory Discharge

In this case, plaintiff is a member of more than one protected class he is Lebanese American, his wife is Turkish Muslim, and he suffers from alcoholism, which is a disability. Clowes, supra, 109 N.J. at 593-94. He also experienced an adverse employment action in his involuntary retirement and arguably his preceding suspensions. However, plaintiff failed to satisfy the second prong of the prima facie test as the unrebutted record establishes he was not performing his job at a level that met ECPD's expectations. In fact, he admitted to relapsing and his own doctor found he was not fit for duty. Therefore, even if his discriminatory discharge was not barred by CEPA's waiver provision, he failed to present prima facie evidence of the claim to survive summary judgment.

Hostile Work Environment

The statute of limitations for LAD claims based on a discrete act, such as the termination of employment, is two years. Roa v. Roa, 200 N.J. 555, 566 (2010) (citation omitted). When a plaintiff alleges "a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment,'" the cause of action accrues on the date of the last act, even if some of the component acts of the hostile work environment claim fell outside the two-year period. Id. at 568 (quoting Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 21 (2002)); Caggiano v. Fontoura, 354 N.J. Super. 111, 127 (App. Div. 2002). Acts comprising the hostile work environment are distinguished from single, discrete acts of discrimination such as termination, or failure to promote that fall outside the limitations time period and cannot be revived based on other similar discrete acts that are timely. Id. at 128-29.

To sustain a claim of hostile work environment, an employee must demonstrate that the alleged discriminatory conduct would not have occurred but for his protected status; and that the conduct was so "severe or pervasive" that he reasonably believed his working environment to be hostile or abusive. See Cutler v. Dorn, 196 N.J. 419, 430 (2008).

"Whether conduct is severe or pervasive requires an assessment of the totality of the relevant circumstances, which involves examination of (1) the frequency of all the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance."

[Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008) (citations and internal quotation marks omitted)].

In assessing the evidence, the court must employ a "reasonable-person standard." Id. at 197. An employer's use and the effectiveness of anti-harassment policies are relevant to the determination of its liability. Lehmann, supra, 132 N.J. at 621-22. "Given the foreseeability that [discrimination] may occur, the absence of effective preventative mechanisms will present strong evidence of an employer's negligence." Id. at 622. "However, the existence of effective preventative mechanisms provides some evidence of due care on the part of the employer." Id. at 621.

Plaintiff's hostile work environment claim was based on his allegations concerning comments and actions by Cioffi. He claimed Cioffi targeted him for retaliation when he refused to support Cioffi's promotion to deputy chief position; scoured his personnel files; told a radio technician he did not like him talking to plaintiff; accused him of reading an "al-Qaeda manual" when he was reading a police bulletin; said plaintiff was not a "real American," harassed him and subjected him to a hostile work environment because of his Lebanese heritage, his wife's Turkish Muslim heritage, and his alcoholism. Plaintiff also claimed Cioffi directed his subordinates to fabricate reports plaintiff had relapsed into alcoholism and that his involuntary retirement was actually the result of Cioffi banning plaintiff from the ECPD. Finally, he alleged Cioffi prevented plaintiff from becoming an honorary member of the fire department, and used his position to ban plaintiff from attending fire department events.

Assuming plaintiff's allegations to be true, as we must, only the "al-Qaeda manual" comment is reasonably tied to plaintiff's status as a member of a protected class and arguably occurred within the limitations period. Cioffi's other comments and actions were not related to plaintiff's background or disability at all, but were based on Cioffi's general animosity toward plaintiff. Notably, plaintiff failed to report any of the other remarks to his superiors, nor did he provide any evidence relating to ECPD's or the Borough's anti-discrimination policies or "preventative mechanisms" that proved to be ineffective.

Plaintiff's attempt to circumvent the statute of limitations by characterizing these comments as "continuing violations" is unavailing. To constitute "a continuing violation[, the] series of separate acts [must] collectively constitute one 'unlawful employment practice.'" Roa, supra, 200 N.J. at 567 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073, 153 L. Ed. 2d 106, 122 (2002) (Citation and internal quotation marks omitted)). When all the comments and actions complained of are reviewed together, they fail to show conduct so "severe or pervasive" as to constitute a hostile work environment. See Cutler, supra, 196 N.J. at 430; Godfrey, supra, 196 N.J. at 196.

IV.

In sum, we concur with Judge Russello's decision to grant defendants summary judgment, essentially for the reasons he stated. We emphasize our shared view that a municipality's decision to terminate or seek the involuntary retirement of a weapon-carrying, chronic alcoholic after offering numerous opportunities to address the problem, should be viewed as unassailable, unless there is competent evidence to establish by a preponderance of the evidence the termination was a pretext for discriminatory or retaliatory conduct. No such evidence was provided by plaintiff in this case.

Affirmed.

1 Plaintiff's amended notice of appeal stated he is appealing the court's July 12, 2013 order granting summary judgment. The July 12 order, however, denied his motion for reconsideration of the order granting summary judgment. As plaintiff's brief does not expressly present a legal argument in support of reconsideration, we limit our review to the grant of summary judgment. See R. 2:6-2(a)(5); Mid-Atlantic Solar Energy Indus. Assn. v. Christie, 418 N.J. Super. 499, 508 (App. Div.), cert. denied, 207 N.J. 190 (2011).

2 Prior to the summary judgment hearing, plaintiff agreed to the involuntary dismissal of counts three, five and six for LAD constructive discharge and violations of his constitutional rights to free expression, due process, and equal protection. Also, his CEPA claim was only against the ECPD and the Borough, not Cioffi.

3 We have not been informed of any response to that request.

4 The judge also noted the Borough's resolution to seek plaintiff's involuntary retirement was not a final determination because PFRS could ultimately reverse the determination or it could be reversed on appeal, requiring the Borough and the ECPD to reinstate plaintiff.

5 Plaintiff also argues on appeal that in dismissing his CEPA claims as time-barred, the trial court should have allowed him to assert a claim for common-law wrongful discharge. See, Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72-73 (1980). A wrongful discharge claim, based in tort, requires proof that an employee was discharged for refusing to perform any act repugnant to public policy. Id. at 72. Plaintiff has not asserted any publicly repugnant act he refused to perform. Moreover, plaintiff never pled common-law wrongful discharge.