JON KEVIN GRUBB v. PATRICIA A. GARBUTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2595-07T22595-07T2

JON KEVIN GRUBB,

Plaintiff-Appellant,

v.

PATRICIA A. GARBUTT, PAUL

DIETRICH, RICHARD PALUMBO,

CURTIS CORSON, and TOWNSHIP

OF UPPER,

Defendants-Respondents.

______________________________________

 

Submitted November 18, 2009 - Decided

Before Judges Axelrad, Sapp-Peterson

and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-75-06.

Van Syoc Law Offices, attorneys for appellant (Sebastian B. Ionno, on the brief).

Barker, Scott & Gelfand, P.C., attorneys for respondents (Todd J. Gelfand, on the brief).

PER CURIAM

Plaintiff, Jon Grubb, appeals from three trial court orders: (1) an October 20, 2006 order granting a partial dismissal of plaintiff's complaint against defendants Patricia A. Garbutt (Garbutt), Paul Dietrich (Dietrich), Richard Palumbo (Palumbo), Curtis Corson, and the Township of Upper (Township) (hereinafter collectively referred to as "defendants"); (2) a November 16, 2007 order granting summary judgment dismissing the remaining claims in his complaint; and (3) a January 8, 2008 order denying reconsideration of the court's October 20, 2006 order. We affirm substantially for reasons expressed by Judge Joseph C. Visalli in the well-reasoned memorandum decisions accompanying each order.

In June 2005, the Township instituted disciplinary charges against plaintiff seeking his removal from his position as a truck driver, a position he had held in the Township for more than ten years. The charges accused Grubb of conduct unbecoming a public employee, insubordination, failure to perform and other sufficient cause. Although the matter initially proceeded before the Township Committee, at plaintiff's request, it was terminated and transferred to a hearing officer for resolution.

Following the denial of plaintiff's counsel's request that the hearing officer recuse himself, plaintiff was granted a stay of the proceedings in order to appeal the denial of his recusal application in Superior Court. What followed, however, was plaintiff's order to show cause and verified complaint not only seeking disqualification of the hearing officer and transfer of the disciplinary proceeding to the Superior Court, but also asserting claims alleging violation of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and the New Jersey Constitution. N.J. Const. art. I, 1.

Defendants initially moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e). The court partially granted the motion. Addressing the prerogative writs action, the court found the interests of justice did not mandate that any aspect of plaintiff's disciplinary proceedings be heard in Superior Court. The court also dismissed plaintiff's double jeopardy claim, rejecting his contention that the loss of employment was a protected civil right or a property interest. Citing Thomson v. Sanborn's Motor Express, Inc., 154 N.J. Super. 555, 560-61 (App. Div. 1977), the court also dismissed plaintiff's claim of ancestry discrimination, noting the LAD "does not cover discrimination based on the parent-child relationship."

The court denied defendants' motion as to plaintiff's LAD claims. The court concluded that when confronted with a motion to dismiss for failure to state a claim upon which relief may be granted, courts are to liberally examine pleadings to determine if a cause of action exists. Under that liberal standard, the court was satisfied an inference of failure to accommodate, hostile work environment sexual harassment and retaliation could be gleaned from the pleadings.

One year later, defendants moved for summary judgment dismissing the LAD claims. Viewing the facts in the light most favorable to plaintiff, the court observed that plaintiff conceded there were no facts in the record to suggest defendants were aware that he suffered from bipolar disorder prior to January 3, 2005, and that plaintiff admitted in his deposition that he never requested an accommodation for his bipolar disorder. The court also found that plaintiff failed to establish a causal connection between the adverse employment action and plaintiff's disability.

Pursuant to the "sham affidavit" doctrine, Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002), the court rejected that portion of plaintiff's certification submitted in opposition to defendants' summary judgment motion in which plaintiff stated that following his deposition testimony, where he admitted to never requesting an accommodation for his bipolar disorder, he recalled that in 2004 he told his father, and then at his father's direction, defendant Garbutt, the Township Personnel Director, that he suffered from bipolar disorder. The court found that that this statement "directly opposes the testimony provided by [p]laintiff in his deposition."

Next, the court found that plaintiff's additional claim of disability discrimination premised upon his hypertension could not withstand summary judgment for a number of reasons. First, the court noted that plaintiff failed to demonstrate through expert medical opinion that his hypertension is a disability. Second, plaintiff relied upon his April 2002 grievance as the basis for establishing his request for an accommodation related to his hypertension. Because plaintiff's complaint was not filed until 2006, the court determined that any claim of disability discrimination based upon his hypertension was time-barred.

Turning to plaintiff's LAD claims based upon hostile work environment sexual harassment, the court concluded that the name-calling to which plaintiff pointed as supporting his claim was insufficient to withstand summary judgment. Addressing plaintiff's retaliation claim, the court reasoned that this claim could not survive summary judgment, since plaintiff admitted in his deposition that he had no reason to believe that anyone in the Township did anything to retaliate against him because he sought workers' compensation benefits.

Thereafter, plaintiff sought reinstatement of his CRA claim. The court treated the matter as a motion for reconsideration pursuant to Rule 4:49-2, and found that plaintiff failed to meet the requirements for relief, but nonetheless addressed the merits of the motion. The court explained that the mere allegation of a constitutional issue in a complaint will not relieve a litigant from the obligation to exhaust applicable administrative remedies. Further, the court found that plaintiff failed to demonstrate irreparable harm that would result from an administrative resolution of his disciplinary charges. The present appeal followed.

I.

On appeal, plaintiff first contends that the court erroneously dismissed his LAD-based claims arising out of disability discrimination, sexual harassment hostile work environment, and retaliation. We disagree.

As an appellate court, we review the grant or denial of a summary judgment motion de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In doing so, we employ the same standard of review as the trial court in determining whether summary judgment was properly granted. Ibid. 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). We consider "whether 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).

A.

The Legislature has declared:

practices of discrimination against any of [the State's] inhabitants, because [of] . . . disability . . . are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State[.]

[N.J.S.A. 10:5-3.]

In order to survive a motion for summary judgment arising out of a claim of disability discrimination, a plaintiff must establish a prima facie case of discrimination with proof, in the first instance, of a disability. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988). Failure to establish the existence of a disability is fatal to a claim of disability discrimination irrespective of proof of the remaining elements of a disability discrimination claim. See Viscik v. Fowler Equip. Co., 173 N.J. 1, 15 (2002) (noting "the threshold inquiry in a handicapped discrimination discharge case is whether the plaintiff in question fits the statutory definition of 'handicapped'"). Under N.J.S.A. 10:5-5(q) "disability" is defined as:

[S]uffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. [Handicapped] shall also mean AIDS or HIV infection.

Where the existence of the handicap is not readily apparent, such as here where bipolar disorder and hypertension is alleged, expert medical evidence is required. Clowes, supra, 109 N.J. at 597-98. The term "handicapped' under the LAD is not restricted to "severe" or "immutable" conditions as is required under the LAD's federal counterpart, 42 U.S.C.A. 12102(1)(A). Viscik, supra, 173 N.J. at 16. Rather, disabilities under the LAD have been interpreted as significantly broader. Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998) (noting the LAD definition of "handicapped" does not incorporate the requirement that the disability result in a substantial limitation on a major life activity). Nonetheless, the disability must, at the very least, "prevent[] the normal exercise of any bodily or mental functions" or be verifiable "medically or psychologically, by accepted clinical or laboratory diagnostic techniques." N.J.S.A. 10:5-5(q).

Here, plaintiff presented no expert testimony or report demonstrating that his hypertension prevented him from the normal exercise of his bodily or mental functions. Medical records plaintiff presented in discovery reported that his blood pressure was normal, provided he took his medication. Nor was there evidence in the record, beyond plaintiff's own characterization of the effects of his bipolar condition, which was provided to the Township indicating whether and how his bipolar disorder prevented him from the normal exercise of his bodily or mental functions.

As for plaintiff's contention that defendants failed to reasonably accommodate his hypertension and bipolar disorders, under the LAD, an employer has an obligation to attempt to reasonably accommodate an employee's physical or mental disability. Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323, 339 (2007). This obligation is only triggered when the employer is made aware of the handicap and the employee requests an accommodation. Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385, 400-01 (App. Div. 2002). The request need not be in writing and the employee is not required to utter the words "reasonable accommodation." Id. at 400. The employee must, however, "'make clear that . . . assistance [is desired] for his or her disability.'" Ibid. (quoting Taylor v. Phoenixville Dist., 184 F.3d 296, 313 (1999)). Once the employee has conveyed the accommodation request to the employer, "'both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.'" Ibid.

It is undisputed that plaintiff, in his deposition testimony, admitted that he never requested an accommodation regarding his bipolar condition. In his certification submitted in opposition to defendant's summary judgment motion, plaintiff indicated that he recalled discussing his bipolar condition with his father, who was also employed by the Township and who was one of plaintiff's supervisors. At his father's direction, plaintiff then spoke to Garbutt about his condition. According to plaintiff's certification these discussions occurred sometime in the fall of 2004. Specifically, plaintiff claims he told Garbutt that "he suffered from [b]i[]polar disorder, and that she would 'take care of it.' I never received any accommodation for my [b]i[]polar disorder." The court, however, rejected this certification under the "sham affidavit" doctrine. Shelcusky, supra, 172 N.J. at 201-02.

The Court in Shelcusky explained that the "sham affidavit doctrine" refers to:

the trial court practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony. . . . and the contradiction is unexplained and unqualified by the affiant[;] [i]n such circumstances, the alleged factual issue in dispute can be perceived as a sham, and as such it is not an impediment to a grant of summary judgment.

[Id. at 194.]

We disagree that plaintiff's certification is inconsistent with his deposition testimony. When deposed, plaintiff testified that he did not request an accommodation for his disability. His certification, read most indulgently towards him, does not state that he requested an accommodation for his disability.

As noted earlier, an employee's request for an accommodation does not have to be in writing or even include the words "reasonable accommodation." Tynan, supra, 351 N.J. Super. at 400. The request must nonetheless be sufficiently clear that it conveys to the employer the employee's request that an accommodation be attempted to address the employee's disability. Ibid. Viewing the statement plaintiff made to Garbutt most favorably toward plaintiff, it simply conveyed to Garbutt that plaintiff suffered from bipolar disorder and nothing more. Further, the statement plaintiff attributes to Garbutt, "she would take care of it," standing alone, says nothing and therefore cannot be viewed as prima facie evidence of the Township's lack of good faith in attempting to accommodate his disorder. "Tak[ing] care of it" could mean anything, including, for example, completing the Township's part of plaintiff's disability application. Plaintiff filed his application for temporary disability based upon his bipolar condition in the fall of 2004 and Garbutt completed the employer's part of the application on behalf of the Township. Hence the court did not err in dismissing plaintiff's reasonable accommodation claim based upon his bipolar disorder.

Likewise, the same claim, based upon plaintiff's hypertension, was equally lacking in merit. Judge Visalli, in his November 16, 2007 written opinion, noted:

Plaintiff conceded at [his] deposition that his only communication with Defendant Township was his grievance proceeding in which he sought workers' compensation for stress leave, alleging the stress was work-related.

Plaintiff cited this grievance proceeding as the sole 'request for [an] accommodation' of hypertension.

In the spring of 2002, plaintiff filed a claim for workers' compensation benefits, arising out of his claim of work-related stress. Plaintiff was denied benefits based upon a determination that there was no conclusive evidence of a causal connection between plaintiff's claimed stress and his job duties with the Township. He thereafter filed a grievance claiming he was entitled to a credit for seven and one-half days of sick leave he utilized in connection with his work-related stress. Plaintiff did not prevail on this claim.

In December 2002, plaintiff filed a petition for temporary disability benefits. The claimed disability set forth in the petition was malignant hypertension. The petition sought to recover benefits for the period of November 18, 2001 to November 16, 2002. This petition was denied. Plaintiff contends that these proceedings establish defendants' knowledge of his hypertension disability. While this evidence is sufficient to withstand a summary judgment motion on the question of defendants' knowledge that defendant suffers from hypertension, none of these documents provide evidence that plaintiff requested an accommodation for this condition. Further, what plaintiff sought, in his disability and grievance petitions, were not accommodations to assist him in performing his day-to- day duties as a truck driver, but benefits. Reasonable accommodation under the LAD is intended to impose upon an employer the obligation, upon request, to assist the handicapped employee in performing essential functions of the job, not the employer's obligation or role in connection with an employee's efforts to obtain benefits. See Raspa, supra, 191 N.J. at 339 (holding there is no duty imposed upon an employer to acquiesce to the disabled employee's requests for certain benefits or remuneration). The December 2002 temporary disability application can hardly be viewed as a request for a reasonable accommodation.

Finally, as Judge Visalli noted, even if such an inference could be drawn from the temporary disability petition, summary judgment was proper for yet another reason. Plaintiff's claim that his December 2002 temporary disability petition placed defendants on notice of his temporary disability and his request for an accommodation is time barred. Plaintiff's complaint was not filed until 2006, more than three years after the temporary disability petition was filed and defendants' alleged failure to reasonably accommodate his claimed disability. See Montells v. Haynes, 133 N.J. 282, 286 (1993) (holding applicable statute of limitations for LAD claims is two years as in personal injury claims "rather than general six-year statute of limitations"). Therefore plaintiff's claim that defendants failed to reasonably accommodate his hypertension was properly dismissed.

B.

Addressing plaintiff's claim of hostile work environment sexual harassment, to defeat summary judgment plaintiff was required to present sufficient evidence demonstrating that the conduct about which he complains "'(1) would not have occurred but for his protected status [as a male,] and was (2) severe or pervasive enough to make a (3) reasonable man believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.'" Lehmann v. Toys R Us, Inc., 132 N.J. 587, 612 (1993); see also Toto v. Princeton Twp., 404 N.J. Super. 604, 614 (App. Div. 2009).

To determine whether plaintiff's work environment was hostile or abusive due to sexual harassment, the trial court was required to look at the totality of the circumstances rather than viewing each incident of alleged harassment in isolation, "bearing in mind that each successive episode has its predecessors[.]" Lehmann, supra, 132 N.J. at 604. The court's analysis includes consideration of the frequency or severity of the conduct, whether the conduct was physically threatening or humiliating, or merely an offensive utterance and whether the conduct unreasonably interfered with plaintiff's work performance. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008). The court focuses on the harassing conduct itself, "not its effect on the plaintiff or the work environment; that is because neither a plaintiff's subjective response to the harassment nor a defendant's subjective intent when perpetrating the harassment is controlling of whether an actionable hostile environment claim exists." Cutler v. Dorn, 196 N.J. 419, 431 (2008) (internal citations and quotation marks omitted). Nonetheless, a sexual harassment hostile work environment discrimination claim cannot be established by epithets or comments which are "merely offensive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302 (1993). Consistent with federal law, we too have held that the LAD is not intended to be a "general civility code" for conduct in the workplace. See Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55 (App. Div. 2004; see also Herman v. Coastal Corp., 348 N.J. Super. 1, 21 (App. Div.), certif. denied, 174 N.J. 363 (2002).

Plaintiff alleges he suffered a hostile work environment as a result of four specific incidents that occurred between July 1999 and May 2005. These incidents included co-worker Mike Jones calling him a "faggot" and telling plaintiff he would kick his "ass"; Township Committeeman Andrew McCrosson telling plaintiff to "kiss his ass" during a grievance hearing; Garbutt calling plaintiff an "asshole"; and defendant Dietrich, the roads superintendent, threatening him both verbally and physically.

Plaintiff acknowledged in his deposition testimony that it was fairly common to refer to co-workers by the terms "asshole" and "dickhead," and that he had called co-workers by these names in the past. There is no indication in the record that any of the offensive comments would not have been made "but for" plaintiff's status as a male, the first element of a gender-specific hostile work environment claim. Lehmann, supra, 132 N.J. at 604. Indeed, the term "asshole" is gender-neutral and is generally intended to refer to a "stupid, incompetent, or detestable person." Merriam-Webster's Online Dictionary, http://www.merriam-webster.com/dictionary. "Dickhead," although gender-specific because it refers to the male genitalia, is typically a term associated with someone who is viewed as "stupid or contemptible" rather than focusing upon the gender or orientation of the individual. Ibid. The term "faggot" uttered by plaintiff's co-worker is, however, gender-specific in that it refers to sexual orientation, a protected status under the LAD. Plaintiff denies that he is homosexual and has not alleged that the comment was directed at him because he was perceived to be homosexual. L.W. ex rel. L.G. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381, 402 (2007) (recognizing the LAD permits a cause of action for peer-to-peer sexual harassment in a school district based upon perceived sexual orientation). Hence, although vulgar epithets may have been severe or pervasive in plaintiff's workplace and even altered the conditions of his employment, nothing in the record supports a finding that these offending comments would not have been made "but for" plaintiff's protected status as a male, Toto, supra, 404 N.J. Super. at 614, or any perceived status as homosexual. L.W., supra, 189 N.J. at 402. Moreover, while recognizing that in some rare circumstances a single incident may be sufficient to sustain a hostile work environment claim, Taylor v. Metzger, 152 N.J. 490, 499 (1998), four comments over a six year period, and which comments were not all gender-specific, does not, in our view, establish any of the elements of a gender-specific hostile work environment claim.

C.

Plaintiff also contends the disciplinary charges lodged against him were in retaliation for a complaint he filed in 1999 alleging hostile work environment, the petition he filed in 2002 for workers' compensation benefits, and the 2003 complaint he lodged alleging that his co-workers had engaged in misconduct. As a result of his engaging in these protected activities, plaintiff claims defendants singled him out for disciplinary charges, denied him a promotion and eventually terminated him.

Under the LAD it is an unlawful employment practice "to take reprisals against any person because that person has opposed any practices or acts forbidden under [the LAD]." N.J.S.A. 10:5-12(d). In order to survive summary judgment seeking dismissal of his retaliatory discharge claim plaintiff was required to present prima facie proof that he was (1) engaged in a protected activity known by the Township; (2) thereafter the Township unlawfully retaliated against him; and (3) his participation in the protected activity caused the retaliation. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30, (1995). See also Quinlan v. Curtiss-Wright Corp., 409 N.J. Super. 193, 204 (App. Div. 2009).

Based upon our thorough review of the record, we are satisfied plaintiff's retaliatory discharge claim was properly dismissed. All of the alleged triggering events occurred at least two years before the disciplinary charges were instituted seeking his removal. We recognize that neither temporal proximity nor the absence of temporal proximity is dispositive on the question of a causal connection between the protected activity and the adverse action. See Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995) (finding that plaintiff had established a causal connection between the protected activity and adverse action despite the passage of ten years). Nonetheless, the absence of temporal proximity is a factor to consider. Young v. Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005). Therefore, where there is no temporal proximity between an employee's discharge and the alleged protected activity, the employee "must set forth other evidence to establish the causal link." Ibid. (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000)). That has not been done here. Beyond engaging in these protected activities, plaintiff is unable to point to any fact from which it could be inferred that the disciplinary charges were instituted because he had previously engaged in these protected activities.

Likewise, although claiming that he was denied promotion opportunities in retaliation for engaging in these protected activities, plaintiff points to no facts in the record to support this contention. The sole reference in defendant's brief to the denial of promotion opportunities are the allegations contained in his verified complaint. While such allegations may be sufficient, as they were here, to defeat a motion to dismiss for failure to state a claim upon which relief may be granted, "mere assertions in the pleadings are not sufficient to defeat a motion for summary judgment." Ocean Cape Hotel Corp., v. Masefield Corp., 63 N.J. Super. 369, 383 (App. Div. 1960).

II.

In Point III, plaintiff contends the motion judge erred in dismissing his CRA and New Jersey constitutional claims brought under Article I, paragraph 5. We find no merit to this argument.

A motion to dismiss under Rule 4:6-2(e) should be "approach[ed] with great caution" and should only be granted in "the rarest of instances." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 771-72 (1989). We view the allegations in the complaint with liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint. Id. at 746. We evaluate such a motion "in light of the legal sufficiency of the facts alleged in the complaint." Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005). A plaintiff's obligation on a motion to dismiss is "not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action." Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001).

In light of this standard of review, we treat plaintiff's version of the facts as set forth in his complaint as uncontradicted and afford it all legitimate inferences. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005) ("We pass no judgment on the truth of the facts alleged; we accept them as fact only for the purpose of reviewing the motion to dismiss.").

In dismissing plaintiff's claims brought under the CRA, Judge Visalli properly found that plaintiff had no property right in continued public employment. In Nicoletta v. North Jersey District Water Supply Commission, 77 N.J. 145, 154 (1978), our Supreme Court held that termination from public employment need not be predicated on just cause, and accordingly no "property" interest is implicated, such as to invoke the due process shield. (citing Bd. of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). In the employment context, the key due process concept is "entitlement," such as involved in tenured employment, Slochower v. Bd. of Higher Educ., 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956); a contractual right to employment, Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952); or a clearly-implied promise of continued employment, Connell v. Higginbotham, 403 U.S. 207, 91 S. Ct. 1772, 29 L. Ed. 2d 418 (1971). The common element in a property interest stemming from an employment relationship that "quicken[s] the right to protection by procedural due process is a 'legitimate claim of entitlement.'" Nicoletta, supra, 77 N.J. at 154-55. Plaintiff presented no evidence of a contractual right to or implied promise of continued employment in his position with the Township. Hence, no property interest under the CRA was implicated with the initiation of disciplinary charges against him.

Likewise, there were no procedural due process violations. Plaintiff received proper notice of the charges against him, including a list of the events giving rise to his suspension. Plaintiff was also given a hearing before the Township Committee, and at his request, the matter proceeded anew before a neutral hearing officer and any claim that the hearing officer was biased and should have recused himself may be addressed through the normal administrative process.

Finally, we note that the October 20, 2006 order also dismissed plaintiff's prerogative writs action and ancestry-based LAD claim. Judge Visalli held that plaintiff failed to exhaust his administrative remedies in seeking removal of the hearing officer and defending the disciplinary charges. He also found that the LAD does not afford a cause of action based upon a parent-child relationship within a given family. On appeal, plaintiff has not challenged these rulings and we therefore consider that plaintiff has abandoned these claims. See Camden Lime Co. v. Borek, 63 N.J. Super. 174, 179-80 (App. Div. 1960).

 
Affirmed.

N.J.S.A. 10:5-5(q) no longer references the word "handicapped." It was amended in 2003 to substitute the term "disability" for "handicapped."

The record provides conflicting dates, 2001 and 2002, as to when the workers' compensation petition was filed.

(continued)

(continued)

24

A-2595-07T2

September 3, 2010