ROBERT G. GRIEB v. BOROUGH OF SPRING LAKE HEIGHTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00867-13T4

ROBERT G. GRIEB and

ROBERT J. KELSEY,

Plaintiffs-Appellants,

v.

BOROUGH OF SPRING LAKE HEIGHTS,

a municipal entity, and

ARTHUR HERNER,

Defendants-Respondents.

_________________________________

October 6, 2014

Argued September 23, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3464-12.

Michael D. Landis argued the cause for appellant.

Tracy A. Armstrong argued the cause for respondent (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Ms. Armstrong and Melissa A. Clarke, on the brief).

PER CURIAM

Plaintiffs Robert G. Grieb and Robert J. Kelsey appeal from the September 10, 2013 dismissal on summary judgment of their ten-count complaint alleging breach of contract and employment discrimination. Plaintiffs, a current and a former Borough of Spring Lake Heights Public Works Department (PWD) employee, alleged that they did not receive their fair share of overtime work for the past six years. We affirm substantially for the reasons expressed by Judge Thomas F. Scully: that plaintiffs provided no evidence of a contract covering the distribution of overtime nor any evidence that they were members of a protected class.

Plaintiffs' August 15, 2012 complaint alleged that they were "not offered the same opportunities as other employees of the [PWD] to work overtime" between 2006 and 2011. In ten counts, plaintiffs' complaint alleged the following claims against the Borough and Arthur Herner, the Superintendent of the PWD during the relevant years: (1) and (2) breach of contract; (3) and (4) employment discrimination; (5) and (6) punitive damages; (7) and (8) costs of suit and attorney fees; (9) Kelsey's claim of breach of contract by the Borough because he worked Saturdays, which after he left employment was determined to merit overtime; and (10) costs of suit and attorney fees for Kelsey's cause of action against the Borough.

We review the record in the light most favorable to plaintiffs, the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Grieb was employed by the PWD since June 19841 and Kelsey from December 1982 to March 1, 2012. During the six relevant years, eight PWD employees were paid for overtime, ranging from a high of $28,782 to a low of $6503, earned by Kelsey. Grieb received the fifth largest overtime payment of $10,615. Herner was responsible for offering overtime to specific employees. We accept for the basis of our review that Herner offered overtime based on favoritism.

In the latter part of the 1990s, Grieb and two other employees of the PWD met with two members of the Borough Council. At this meeting, all three employees asserted their dissatisfaction with the "disproportionate manner in which Herner was offering overtime compensation to employees of the Department." As a result, the procedure was changed to offer overtime based on seniority and a resolution may have been passed to that effect. After this determination was communicated to Herner, he continued to offer overtime based on favoritism and not seniority.

In August 2011 Herner was told by the then-Mayor of the Borough, H. Frances Enright, that overtime should be offered on a rotational basis. Again, Herner ignored this communication and continued to offer overtime based on favoritism.

A Collective Bargaining Agreement (CBA) between the Borough and The Spring Lake Height Employees Association controlled during the period between January 1, 2009 and December 31, 2010. The preamble in the CBA contains the following language: "This agreement . . . represents the complete and final understanding on all bargainable issues between the Borough and the Association[.]" Article XV further provided that "[t]his Agreement shall not be modified in whole or in part by the parties except by an instrument in writing only executed by both parties." Article II of the CBA incorporates Chapter 16 of the Personnel Policies and Practices and amendments thereto of the Borough Code. Chapter 16-2.5(a) explains that "[o]vertime shall be kept to a minimum and only authorized [] on an individual basis for special and emergency reasons that serve proper operation of the department." Chapter 16 does not designate in what manner overtime will be offered to employees.

Defendants moved for dismissal under Rule 4:6-2(e). Rule 4:6-2(e) provides that a court may, in its discretion, review appended exhibits and certifications in addition to the complaint. If it does, the court reviews the motion as a Rule 4:46-2 motion for summary judgment. R. 4:6-2(e). Summary judgment obviates futile trials by allowing courts to pierce the pleadings to see whether a genuine dispute exists. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75-76, (1954) (citations omitted). However, it must not deprive deserving litigants of their right to a trial. Id. at 77. Accordingly, the court may grant summary judgment only if: (1) no genuine issue of material fact exists; and (2) the movant is entitled to judgment as a matter of law. R. 4:46-2(c).

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment must be granted if "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). Thus, we consider, as the motion judge did, 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.'" Ibid. (quoting Brill, supra, 142 N.J. at 540). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008) (citation omitted). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas, supra, 213 N.J. at 478.

Each hour of work in excess of forty hours in any week is overtime and must be compensated at a rate of one and one-half times the employee's "regular hourly wage." N.J.A.C. 34:11-56(a)(4). There is no requirement that an employee be paid overtime for hours in excess of eight hours per day, nor for work on weekends, holidays, or other days of rest, other than the overtime required for hours in excess of forty. N.J.A.C. 12:56-6.4(b).

We rely substantially on Judge Scully's August 23, 2013 oral opinion explaining why the CBA was not ambiguous and precludes plaintiffs' claim of breach of contract during the two years that it was in effect. Estate of Cohen, ex rel. Perelman v. Booth Computers, 421 N.J. Super. 134, 150 (App. Div. 2011) (stating that whether a contract provision is clear or ambiguous is a question of law). We also rely on Judge Scully's opinion with regard to plaintiffs' failure to demonstrate that they are members of a protected class and their consequent inability to demonstrate that they were unlawfully discriminated against. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988).2

We add only the following comments. During the four years that the CBA was not in effect, the plaintiffs can point to no documentary evidence supporting a requirement that overtime be offered in an equitable fashion. They maintain that overtime was never distributed on an equitable seniority or rotational basis. The plaintiffs were at-will public employees who did not have a right to overtime. As the discovery end date had expired without a request to extend it, Rule 4:24-1(c), no further discovery was appropriate.

Affirmed.

1 At oral argument plaintiffs' counsel informed us that Grieb has since retired due to a disability.

2 In any event, plaintiffs do not argue on appeal that the discrimination counts were improperly dismissed and thus we deem any such argument abandoned. "An issue not briefed on appeal is deemed waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).