PETER J. MURACCO, JR v. TOWNSHIP OF WASHINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4506-08T2

PETER J. MURACCO, JR.,

Plaintiff-Appellant,

v.

TOWNSHIP OF WASHINGTON GLOUCESTER COUNTY,

Defendant-Respondent.

________________________________

November 16, 2010

 

Submitted: July 13, 2010 Decided:

 

Before Judges R.B. Coleman and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1277-07.

 

Timothy J. Higgins, attorney for appellant.

 

Brown& Connery,LLP, attorneys for respon dent (William M. Tambussi and Christopher A. Orlando, on the brief).

PER CURIAM

Plaintiff Peter J. Muracco, Jr., appeals from an April 17, 2009, grant of summary judgment in favor of defendant Township of Wash ington dismissing plaintiff's complaint with prejudice. We now affirm.

Plaintiff was employed by defendant in its public works department and was a member of the American Federation of State, County and Municipal Employees Council 71, Local 3303A (the Union). It is undisputed that plaintiff's employment was gov erned by a valid and enforceable collective negotiation agreement (CNA).

After work on March 7, 2007, at about 8:00 p.m., plaintiff was involved in a motor vehicle accident with an ambulance. Washington Township police officers charged plaintiff with reck less driving, contrary to N.J.S.A. 39:4-96; driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50; failure to maintain liability insurance, contrary to N.J.S.A. 39:6B-2; and possession of a controlled dangerous substance (Xanax), contrary to N.J.S.A. 2C:35-10a(1), a third-degree offense for which a term of imprisonment up to five years could be imposed, N.J.S.A. 2C:43-6a(3). The following day, Debra Fourre, Township Business Administrator, sent a formal notice of disciplinary charges to plaintiff charging him with:

1. Article 14, Discipline and Discharge, G.6. A crime more serious than a misde meanor punishable by one (1) year or more in prison for the possession, sale, purchase or use of illegal drugs.

 

2. Township of Washington Policy and Pro cedure Manual, 7-01 Employee Conduct and Work Rules. Other sufficient cause[.]

 

The notice informed plaintiff that a hearing would be conducted that day at 2:30 p.m. at the Business Administrator's Office to determine whether his current suspension with pay should be con verted to a suspension without pay pending a final hearing on the disciplinary charges. The charges were:

1. On March 7, 2007, you were arrested for driving while intoxicated and charged with possession of controlled dangerous substance in violation of NJS 2C:35-10a(1) which charges you with a crime punishable by more than one year in New Jersey state prison.

 

2. If convicted, the employee is subject to a two year loss of New Jersey driving privilege as well as a permanent loss of CDL license.1

 

At the time, plaintiff was hospitalized for injuries he suffered in the motor vehicle accident, and the hearing was postponed by defendant. The following day, Fourre sent another memorandum to plaintiff, which stated in part:

Please be advised that the L[o]udermill2 Hearing scheduled for this afternoon has been postponed because you were hospitalized and unable to attend. Your union represen tatives did attend on your behalf but no hearing was conducted pending your avail ability. The hearing has been postponed until such time as you are able to return to work or Monday, March 26, 2007 at 10:00 a.m., which ever occurs first. In the meantime, the charges and specifications remain as stated in my memo of yesterday.

 

Because of the extension of the hearing, your suspension with pay has been converted to suspension without pay, effective Monday, March 12, 2007. . . .

 

When you are cleared to return to work by your doctor, you will need to provide my office with written documentation of the clearance.

 

On March 22, 2007, plaintiff's attorney sought an adjourn ment of the hearing pending his receipt of discovery and any and all documents to be used by defendant at the hearing. He also suggested that it would be premature to conduct a hearing while the criminal charges were still pending with the Glouces ter County Prosecutor's Office. The hearing was not rescheduled by defendant.

On June 13, 2007, plaintiff sought and was granted a condi tional discharge for a term of one year in connection with a disorderly persons offense under N.J.S.A. 2C:35-10c. Plaintiff also pled guilty to the DWI charge and had his driver's license suspended for two years. Various fines and penalties were imposed in connection with both offenses, and the charges under N.J.S.A. 39:4-96 and 39:6B-2 were dismissed.

On August 6, 2007, plaintiff filed a Verified Complaint instituting this action. He alleged the facts we have outlined above and noted that he was required to use all of his accrued vacation time and personal days during the suspension. He alleged that the charge remanded by the prosecutor to the municipal court, a violation of N.J.S.A. 2C:35-10c, was a disor derly persons offense subject to no more than six months in jail. Plaintiff contended that he had been constructively dis charged and that defendant had prematurely suspended him without pay and without a proper hearing. He also alleged that defen dant's conduct had deprived him of due process by its refusal to reschedule a hearing.

On October 4, 2007, defendant's counsel wrote to plain tiff's counsel confirming the adjournment of the hearing until October 11, 2007, and requested his consent to a Stipulation to Extend Time to Answer the complaint.

On October 11, 2007, defendant conducted a "Public Hearing in the Peter Muracco, Jr. vs. Washington Township matter." Both parties' counsel attended the hearing, and the hearing officer, Jack Lipsett, Business Administrator, reserved decision. On October 15, 2007, defendant answered the complaint and asserted various affirmative defenses, including failure to exhaust administrative remedies. Defendant did not assert that plain tiff was required to arbitrate the dispute. On October 18, 2007, Lipsett released his decision in which he ruled in favor of defendant for several reasons:

The Township of Washington's Policy and Pro cedures Manual clearly states in section 5-08 that any employee whose work requires the operation of Washington Township vehicles must hold a valid Driver's License.

 

Additionally, the township job description for Laborer states that one of the require ments is to possess a Class B CDL driver's license.

 

Furthermore, [plaintiff] was in receipt of the directive from 2000 that all Municipal Service Department employees must have a CDL license.

 

It is an essential job requirement for a Laborer working for Washington Township to have a license to do his job effectively. Mr. Muracco will not have a license for the foreseeable future.

 

Accordingly, he should be terminated from employment effective immediately.

 

On February 24, 2009, defendant, for the second time, moved for summary judgment, asserting in its statement of material facts that a CNA applied to plaintiff's employment and that Article 14(B) gave defendant the right to suspend or discharge an employee "immediately prior to an appeal or grievance hearing where it is determined by the township personnel that the employee is unfit for duty or is a hazard to any person if permitted to remain on the job." Addi tionally, defendant alleged that the CNA in Articles 13 and 14 "sets forth the procedure in which an employee can challenge disciplinary decision[s] up to and including termination."

The Statement asserted the facts of defendant's accident and arrest and the nature of the charges. It set forth the facts of defendant's disciplinary action and the hearing sched uled and then postponed at plaintiff's request. It stated its decision to suspend without pay effective March 12, 2007, and acknowledged plaintiff's counsel's letter of representation and request to adjourn the March 26, 2007, hearing and suspend all disciplinary action pending action by the Gloucester County Prosecutor's Office, which defendant granted. Defendant then described the outcome of the criminal charges, plaintiff's plea to DWI and a violation of N.J.S.A. 2C:35-10c, and the sentences imposed.

The Statement also asserted that plaintiff's disciplinary hear ing was scheduled for October 4, 2007, and adjourned at plaintiff's request. When it was conducted on October 11, 2007, the Township Business Administrator, Jack Lipsett, served as the hearing officer in accordance with the CNA. On October 18, 2007, Lipsett ruled in favor of defendant and formally termi nated plaintiff's employment. Finally, the Statement asserted that pursuant to Article 13 of the CNA, plaintiff had thirty working days to request arbitration to challenge the decision but failed to do so, which barred further challenge to the decision to terminate.

Defendant argued that it was entitled to summary judgment because the court lacked jurisdiction over the dispute by virtue of Articles 13 and 14 of the CNA because the parties had agreed to arbitrate disciplinary disputes. Even if that were not so, defendant argued that the only issue properly before the court was whether defendant had the authority to suspend plaintiff without pay before a Loudermill hearing was conducted.

In plaintiff's responding Statement of Material Facts, he denied that the CNA could waive the requirements of Loudermill for a hearing prior to suspension without pay and that he never waived these rights at any time after his arrest. He stated that he had been constructively terminated on March 8, 2007, in contravention of his rights and that Lipsett's action was not done pursuant to the terms and conditions of the CNA. Further, the notice of termination made no reference to any rights of appeal.

Plaintiff filed a cross-motion for summary judgment, which he supported with his own certification, and in his Statement of Material Facts explained that he requested an adjournment of the hearing because he expected that the criminal charge would be downgraded to a disorderly persons offense, which would not be a ground for termination of his employment. He stated that he had been granted a conditional discharge in the Washington Township Municipal Court, came under the supervision of probation, and successfully completed the program. He further stated that when he was hired in 1998, "there was no requirement that a laborer have a New Jersey driver's or CDL license" and that no such requirement had been incorporated into the Employee Manual or Policy and Procedures Manual nor imposed by resolution of the governing body. He asserted that there was very little driving involved in his duties as a laborer and that janitorial positions did not require driving at all.

Plaintiff argued that defendant failed to comply with Rule 1:6-6 because the supporting certification to defendant's sum mary judgment motion was signed by defendant's counsel, not an employee or elected official of defendant. He also argued under Loudermill that he was entitled to reinstatement, full back pay, and benefits due to defendant's failure to provide due process, notice, and opportunity to be heard prior to discipline and ter mination. Last, he contended that the termination of his employment was arbitrary, capricious, and contrary to the facts and evidence.

On April 17, 2009, the motion judge denied plaintiff's motion and granted defendant's motion, dismissing plaintiff's complaint with prejudice. She found that the CNA stated "that an employee may be suspended or discharged immediately prior to an appeal or grievance hearing where it is determined by the Township personnel that the employee is unfit for duty or is a hazard to any person if permitted to remain on the job." She found that Articles 13 and 14 "set[] forth the manner in which an employee can challenge a disciplinary decision up to and including termination." She found the facts we have discussed above and observed that defendant characterized the October 11, 2007, hearing as one conducted pursuant to Article 14 of the CNA whereas plaintiff said that the hearing was for a violation of policies and procedures and not part of the CNA. She found that Lipsett noted that one of the violations charged was of CNA Article 14, G(6). This led her to conclude "that the proper next step following the hearing officer's determination would be to request arbitration pursuant to the agreement. That request was not made," and she granted summary judgment to defendant.

This appeal followed. Plaintiff contends first that he was not given notice and opportunity to be heard in a Loudermill hearing, which requires his reinstatement with full back pay and benefits. Second, he argues that the termination of his employ ment was contrary to the facts and evidence and was arbitrary and capricious. Third, even if the termination on October 18, 2007, is sustainable, plaintiff urges that he is still entitled to back pay and benefits for the period prior to that date because he was not afforded a Loudermill hearing. Fourth, he urges that the supporting documentation for defendant's summary judgment motion failed to meet the requirements of Rules 1:6-2, 1:6-6, and 4:46-2. We will begin with the last issue and then address the Loudermill issues before considering the second issue.

The CNA was attached as an exhibit to defendant's brief in support of summary judgment, but no one with personal knowledge of the facts certified that the attached copy of the CNA was kept in the ordinary course of defendant's business and was a true and complete copy of the CNA in effect at the time of defendant's arrest. Rather, an attorney from the defense law firm certified that he attached "a true copy" of the CNA effective January 1, 2006, through December 31, 2009.

This certainly violates Rule 1:6-6.3 The affidavit of defen dant's counsel does not meet the requirements of this rule. Claypotch v. Heller, Inc., 360 N.J. Super. 472, 489 (App. Div. 2003); F.B. v. A.L.G., 350 N.J. Super. 389, 393 (App. Div. 2002), rev'd on other grounds, 176 N.J. 201 (2003). However, plaintiff's complaint alleged the existence of a CNA and spe cifically referenced Article 14 as applicable, and defendant admitted same in its answer. In raising this objection, plain tiff did not dispute that the CNA attached to defendant's moving papers was a true copy of the CNA in existence at the time of his arrest. Indeed, plaintiff discussed the terms of the CNA in opposing defendant's motion. As a consequence, we are satisfied that the motion judge properly considered the CNA presented to her.

The same problem infuses the police reports attached to defendant's moving papers. Defendant's counsel did not certify that he obtained the same from the police department, and we do not know how he could attest to the fact that he was attaching a true copy of same. However, the police reports were relevant only with respect to the defendant's arrest for DWI, an arrest that he admitted in his Verified Complaint. Plaintiff was not prejudiced by the judge's consideration of these documents.

The memoranda from Fourre dated March 8 and 9, 2007, which also suffer from the same defect as the police reports, were addressed to plaintiff, and he alleged in his Verified Complaint that these notices were given to him. He did not assert in his opposition to summary judgment that these were not true copies of the document addressed to him. The judge did not err in considering these documents.

The correspondence between plaintiff's attorney and defense counsel was certainly well within the knowledge of the attesting defense attorney and was properly before the judge pursuant to Rule 1:6-6. Additionally, the letter from Charles W. Wigginton, Esquire, was addressed to plaintiff's counsel and discussed the outcome of the criminal proceedings. From the tenor of the let ter, Wigginton was plaintiff's criminal defense counsel who was informing plaintiff's attorney in this action of the results of the municipal court proceedings. It could hardly have come into the hands of defense counsel if it was not supplied by plain tiff's counsel. As a result, we infer that defendant's counsel was in a position to attest to the document.

The last document was Lipsett's October 18, 2007, written decision. It was sent to plaintiff by Lipsett, and copies were provided to the attorneys who represented plaintiff and defen dant at the hearing. As such, defendant's counsel could cer tainly attest to this document. As a result, we find that the procedural irregularities in defendant's summary judgment were not an impediment to the determination of the motion. We turn to the Loudermill issues.

The Supreme Court in Loudermill "consider[ed] what preter mination process must be accorded a public employee who can be discharged only for cause." Loudermill, supra, 470 U.S. at 535, 105 S. Ct. at 1489, 84 L. Ed. 2d at 499. Loudermill was charged with dishonesty in filling out his employment application because he failed to disclose a conviction for grand larceny. Ibid. He was dismissed without having an opportunity to chal lenge his dismissal. Id. at 535, 105 S. Ct. at 1489-90, 84 L. Ed. 2d at 499.

Loudermill was classified as a civil servant and exercised his right to administrative review under Ohio law. Id. at 535, 105 S. Ct. at 1490, 84 L. Ed. 2d at 499. The appointed referee recommended reinstatement; the Civil Service Commission upheld the dismissal. Id. at 535-36, 105 S. Ct. at 1490, 84 L. Ed. 2d at 499. Although Loudermill was entitled to state-court review, he instituted an action in the federal district court alleging that the Ohio statute providing administrative review of adverse employment action "was unconstitutional on its face because it did not provide the employee an opportunity to respond to the charges against him prior to removal." Id. at 536, 105 S. Ct. at 1490, 84 L. Ed. 2d at 500. As a result, he alleged that he was deprived of liberty and property without due process. Ibid.

The district court dismissed for failure to state a claim because the statute at issue afforded Loudermill procedures for discharge that were followed. Ibid. As a consequence, he received all the process he was due. Ibid. A parallel case instituted by Donnelly was consolidated with that of Loudermill for purposes of appeal. Id. at 536-37, 105 S. Ct. at 1490-91, 84 L. Ed. 2d at 500. A divided panel of the Sixth Circuit reversed and remanded. Id. at 537, 105 S. Ct. at 1491, 84 L. Ed. 2d at 500. It "concluded that the compelling private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing." Id. at 537, 105 S. Ct. at 1491, 84 L. Ed. 2d at 501 (citation omitted).

The Court first observed that Loudermill and Donnelly's "federal constitutional claim depends on their having had a property right in continued employment. If they did, the State could not deprive them of this property without due process." Id. at 538, 105 S. Ct. at 1491, 84 L. Ed. 2d at 501 (footnote and citations omitted). The Court found that the Ohio statute "plainly supports the conclusion, reached by both lower courts, that [Loudermill and Donnelly] possessed property rights in continued employment." Id. at 539, 105 S. Ct. at 1491, 84 L. Ed. 2d at 501.

The Court rejected one employer's argument that because the statute creating the property right also specified the proce dures by which that right could be terminated, the right itself was a limited one. Id. at 539-41, 105 S. Ct. at 1492-93, 84 L. Ed. 2d at 502-03.

In Vitek v. Jones, 445 U.S. 480, 491[, 100 S. Ct. 1254, 1263, 63 L. Ed. 2d 552, 563] (1980), we pointed out that "minimum [proce dural] requirements [are] a matter of fed eral law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." This conclusion was reit erated in Logan v. Zimmerman Brush Co., 455 U.S. 422, 432[, 102 S. Ct. 1148, 1155-56, 71 L. Ed. 2d 265, 275] (1982), where we reversed the lower court's holding that because the entitlement arose from a state statute, the legislature had the prerogative to define the procedures to be followed to protect that entitlement.

 

[Id. at 541, 105 S. Ct. at 1492-93, 84 L. Ed. 2d at 503.]

 

The Court found that the Due Process Clause applied, leaving only the question of "'what process is due,'" a question that was not answered by the state statute. Id. at 541, 105 S. Ct. at 1493, 84 L. Ed. 2d at 503 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). It described "'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.'" Id. at 542, 105 S. Ct. at 1493, 84 L. Ed. 2d at 503-04 (quoting Boddie v. Connecticut, 401 U.S. 371, 379[, 91 S. Ct. 780, 786, 28 L. Ed. 2d 113, 119] (1971)) (footnote omitted). The Court found that this required some type of a hearing before discharge. Id. at 542, 105 S. Ct. at 1493, 84 L. Ed. 2d at 504. In reaching this conclusion the Court balanced the competing interests of the state employer and the employee. Id. at 542-45, 105 S. Ct. at 1493-95, 84 L. Ed. 2d at 504-06.

The essential requirements of due proc ess, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process require ment. The tenured public employee is enti tled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the gov ernment's interest in quickly removing an unsatisfactory employee.

 

[Id. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506 (citations omitted); see also Caldwell v. N.J. Dep't of Corr., 250 N.J. Super. 592, 613 (App. Div.), certif. denied, 127 N.J. 555 (1991).]

 

Plaintiff's claim that an actual hearing is required by the Due Process Clause is simply not supported by Loudermill, as the above-quoted material demonstrates. It is clear from the memo randa from Fourre that defendant was specifically acting pursu ant to Loudermill in giving notice of the disciplinary action to be taken and the factual basis for that action. Because plain tiff was hospitalized as a result of the accident, defendant rescheduled his March 8, 2007, Loudermill hearing to March 26, 2007, or earlier if he was able to return to work.

Despite recognizing the necessity of providing plaintiff with an opportunity to present his version of the facts under Loudermill, which must occur before adverse action is taken, Loudermill, supra, 470 U.S. at 542, 105 S. Ct. at 1493, 84 L. Ed. 2d at 503-04, the defendant con verted plaintiff's suspension with pay to a suspension without pay. This action was clearly prohibited by Loudermill, entitling defendant to back pay from March 9 to October 18, 2007. However, defendant urges that plaintiff must vindicate his due process rights under the terms of the CNA.

That contract provides in Article 14, B that "[a]n employee may be suspended or discharged immediately prior to an appeal or grievance hearing where it is determined by the town ship personnel that the employee is unfit for duty or is a haz ard to any person if permitted to remain on the job."4 The Union agreed to this exception to Loudermill when it signed the CNA. However, Fourre did not find that plaintiff was unfit for duty nor did she find that he was a hazard to any person as a justi fication for his suspension without pay prior to the Loudermill hearing and prior to an appeal or grievance hearing.

Article 14, D of the CNA requires the employer to "pro vide a copy of disciplinary charges to the employee and a copy of the notice . . . to the local Union representative and Dis trict Council representative." Presumably that was done because the Union representatives appeared at the March 8, 2007, Loudermill hearing, which was continued to March 26, 2007. That paragraph goes on to provide that "[a]n employee may appeal a disciplinary finding beginning at the third step of the griev ance procedure and within 10 working days of its occurrence." Article 13, A describes the third step of the grievance procedure as follows:

If the grievance remains unsettled, the representative may within twenty (20) work ing days after the reply of the Business Administrator is due, give written notice to the Mayor or her designee requesting a hear ing of the aggrieved employee, his/her Shop Steward, the Mayor or her designee and the business representative of the Union. The hearing will be held in no less than twenty (20) working days.

 

There is no provision in the CNA for a hearing prior to the imposition of discipline nor is a Loudermill hearing prohibited. Article 14 speaks only of notice of disciplinary charges and then speaks of an appeal from a disciplinary finding. Thus, the CNA does not purport to waive Loudermill hearings.

Certainly, the hearing that was conducted on October 11, 2007, was sufficient to satisfy the due process requirement for a hearing under Loudermill. It was attended by the Township Solicitor, John Eastlack, Jr., and plaintiff's counsel, Edward Brennan. Plaintiff was given an opportunity to speak, and both attorneys presented closing arguments. This hearing in fact qualified as a Step Two grievance procedure under the CNA, which provides in Article 13, A that a Step Two grievance is to be presented to the Business Administrator, who in this case was Lipsett. The resulting consequence is that plaintiff was obli gated by the terms of the CNA to request a hearing by the Mayor or her designee within twenty working days of the October 18, 2007, decision. If the dispute was not resolved before the Mayor, plaintiff was obligated to arbitrate the dispute pursuant to Article 13, A, Step Four.

The CNA is governed by N.J.S.A. 2A:24-1 to -11, which apply to collective bargaining agreements or collectively negotiated agreements. N.J.S.A. 2A:24-1.

A provision in a written contract to settle by arbitration a controversy that may arise therefrom or a refusal to perform the whole or a part thereof or a written agree ment to submit, pursuant to section 2A:24-2 of this title, any existing controversy to arbitration, whether the controversy arise out of contract or otherwise, shall be valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of a contract.

 

[N.J.S.A. 2A:24-1.]

 

New Jersey's public policy strongly favors arbitration to settle labor-management disputes. Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 390 (1985). "Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Jansen v. Salomon Smith Barney, Inc., 342 N.J. Super. 254, 258 (App. Div.) (citations omitted), certif. denied, 170 N.J. 205 (2001).

Given this public policy, it was incumbent on plaintiff to grieve the suspension without pay and then the termination of his employment through the grievance procedures in the CNA to binding arbitration. His resort to the courts was inconsistent with his duty to grieve and then arbitrate the dispute, present ing his claim that he was deprived of due process under Loudermill for determination by the arbitrator.

This conclusion makes any further consideration of plain tiff's second point on appeal unnecessary as the issue was one for resolution through the grievance and arbitration procedure of the CNA.

Affirmed.

 

 

1 CDL is a commercial driver's license.

2 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).

3 Rule 1:6-6 provides:

If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

4 The corollary of this proposition would seem to be that employees may not be suspended or discharged prior to an appeal or grievance hearing.