GABRIEL VALOS v. GARFIELD BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GABRIEL VALOS,

Plaintiff-Appellant,

v.

GARFIELD BOARD OF EDUCATION,

Defendant-Respondent.

____________________________________

September 4, 2014

Submitted April 9, 2014 Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4205-12.

Fusco & Macaluso, LLC, attorneys for appellant,

(Brent DiMarco, on the briefs).

Nirenberg & Varano, LLP, attorneys for respondent (Sandra N. Varano, on the brief).

PER CURIAM

Plaintiff Gabriel Valos, a former employee of defendant Garfield Board of Education, appeals the summary judgment dismissal of his breach-of-contract complaint. The complaint alleged the Board had agreed to rehire him as a permanent full-time bus driver as part of a settlement of a discrimination claim Valos had previously filed. The complaint further alleged the Board had breached the settlement agreement by terminating his employment two months after rehiring him. Specifically, Valos alleged in the three-count complaint that the Board had breached express and implied contractual obligations, as evidenced by agreements, a handbook, employment documents, and oral representations, to pay commissions and other benefits; and had also breached the implied covenant of good faith and fair dealing.

The trial court dismissed the complaint on summary judgment, ruling that it was barred by the doctrine of collateral estoppel since two administrative agencies had determined that the Board properly and lawfully terminated Valos because his driving had endangered the lives of students. The court also concluded the uncontested facts before it established that Valos had endangered the lives of school children, and therefore the Board had reasonable grounds to terminate him; and, in any event, the terms of his employment were covered under his union's collective bargaining agreement and he had not availed himself of the grievance procedure. We affirm.

We derive the following undisputed facts from the motion record in the trial court. Valos was a school bus driver employed by the Garfield Board of Education. Following the Board's termination of Valos in 2000, he filed a complaint with the New Jersey Division on Civil Rights (the Division), claiming that the Board had discriminated against him in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. Five years later, the parties settled Valos' claim. In a consent order and decree that embodied the settlement terms, the Board agreed, among other things, to "hire [Valos] to the position of permanent Full-Time Bus Driver at the salary of [$]27,200 for the 2005-2006 school year."

The parties signed the consent order and decree on August 29, 2005. The consent order and decree had to be approved by an administrative law judge (ALJ). The hearing occurred on January 18, 2006. In the meantime, the parties implemented the settlement agreement and the Board rehired Valos. Two months later, before the settlement was approved by an ALJ, the Board terminated Valos' employment.

At a regular meeting on September 27, 2005, the Board adopted a resolution to implement the settlement agreement, approving "the following non-certified appointments, for the 2005-06 school year[:] . . . Gabriel Valos, F/T Bus Driver, flexible eight (8) hour shift TBD at annual salary of $27,200, effective September 1, 2005 thru June 30, 2006." Two months later, on November 29, 2005, the Board terminated Valos' employment due to "unsatisfactory performance."

According to the Board, it based its decision on a series of events that occurred between October 31, 2005, and November 7, 2005. In its summary judgment motion, the Board described the events in its "Statement of Undisputed Material Facts," which Valos admitted. These are the events:

On October 31, 2005, approximately two months after the plaintiff commenced his employment as a school bus driver, John Rutkowski, the Supervisor of Security, prepared a memo regarding an incident that occurred on October 28, 2005, while he was a passenger on a school bus operated by the plaintiff Gabriel Valos. In that memo, Mr. Rutkowski notes the bus was "full of students," when at approximately 3:20 p.m. Mr. Valos stopped his school bus to check "the tracks for clearance at the commuter train crossing." According to Mr. Rutkowski, when the bus proceeded south:

I heard some of the students on the bus shriek in fear and I observed that the railroad crossing gate had come down on the bus. The location of the gate in reference to the bus was the third seat up from the rear of the bus. The driver elected to stop and remain in this position with the front of the bus near the north bound lane of the commuter train track. I yelled back up as I looked out the rear window of the bus as a driver in the vehicle behind us was motioning me that the train was approaching, and he was giving the bus room to clear the track. The bus driver elected to stay put and apparently did not hear me tell him to back up. The commuter train passed at a high rate of speed on the south bound track. The bus rocked as the train passed. . . . .

Just five days later, on November 3, 2005, almost the identical incident occurred again. In a separate memo, John Rutkowski indicated that he was on a bus with the driver, plaintiff Gabe Valos at 8:05 a.m. As the plaintiff approached the same railroad crossing and the bus was completely over the north bound rail, the emergency light of train gate engaged. When Mr. Rutkowski yelled to the plaintiff that the train gate was coming down, Mr. Valos elected to "slam[. . .] on the brakes and came to a stop on the tracks." Mr. Rutkowski continued:

The train gate in the rear of us came down and the bus was trapped between the gates on the railroad tracks. I could hear the train approaching and I yelled to the bus driver to open the bus door, I bailed out of the bus, got off the tracks and headed for the rear of the bus. The driver attempted to back off the tracks but the bus was halted when the bus backed into the train gate. Somehow the driver now maneuvered the bus to face south parallel to the north bound track. The commuter train passed on the south bound rail at a high rate of speed. . . . .

Mr. Rutkowski concludes his memo by noting that this is the second such incident in five days: "For the safety of the children and myself I strongly recommend that some procedural change be made. As a former Police Officer and the present Supervisor of Security, I recommend that the route and driver be changed before a horrific tragedy occurs". . . . .

By letter dated November 5, 2005, a Garfield School District parent . . . wrote to the Business Administrator complaining about the manner in which the plaintiff was operating the school bus on which [the parent's] child was a passenger. According to [the parent], she was following the bus on November 4, 2005 and observed that it ran through a yellow light, failed to stop at a railroad crossing and cut someone off on the Garden State Parkway. She had spoken to the Business Administrator who advised her that this was not the first complaint regarding this driver and that an investigation was underway. [The parent] however, was [sic] expressed concern:

that you are risking the lives of the children that are on this bus while you are gathering this information. If an individual is suspected of molesting a child, they are immediately put on suspension while an investigation is going on. I feel this situation is just as hazardous. In this instance with the bus driver, you are placing a whole busload of children at risk, and the ultimate cost could be their lives. There is no restitution or counseling that will get their loved one lives "back to normal over time" if their children are gone!

In my opinion, this bus driver should have been removed from his position immediately after the first time someone complained about him. . . . .

In a memo to the Superintendent of Schools dated November 7, 2005, the Director of Special Services, . . . indicated that during the past two weeks he has received several phone calls from concerned parents regarding the transportation on the plaintiff's bus.

On January 18, 2006, the parties' consent order and decree settling Valos' discrimination claim came before an ALJ for approval. The ALJ approved the settlement and ordered the parties to comply with its terms. The judge also ordered that the proceedings before the Division were concluded.

A week later, Valos filed exceptions to the ALJ's decision. Valos asserted, among other things, "that the matter is not closed because [the Board] failed to give him a permanent position within its organization as required by the settlement agreement since it fired him from his position as a bus driver for the school district." The Board responded that it had offered Valos a permanent bus driver position, but he had been discharged during his probationary period due to poor work performance. The Director of the Division rejected Valos' argument. The Director determined that Valos "was indeed offered and accepted a permanent position as a bus driver in September 2005." The Director explained that "the terms and conditions of that employment are separate and distinct from the terms and conditions of the negotiated settlement agreement dated August 9, 2005." Finding no compelling reasons to negate the enforcement of the parties' settlement agreement, the Director adopted the ALJ's initial decision, ordered the parties to comply with the settlement terms, and dismissed Valos' discrimination complaint.

Valos did not appeal the Director's final determination. He did, however, file a wrongful termination discrimination claim with the Division based on sex and reprisal. In September 2006, the Division issued an order finding no probable cause and closed its file. When the Division notified Valos of its decision, it included a summary of its investigation, which included this conclusion: "The investigation established that [Valos] was discharged for a legitimate non-discriminatory business reason. [The Board] demonstrated that it discharged [Valos] for endangering the lives of school children on two separate occasions in performance of his job duties." Valos did not appeal.

Five years and eleven months after his second discharge, Valos filed a three-count complaint against the Board alleging breach of express and implied contracts, and breach of the implied covenant of good faith and fair dealing. In a section of the complaint entitled "Parties and Factual Allegations," Valos explained that the discrimination complaint he filed with the Division was settled by way of the consent order and decree on August 29, 2005, which "contractually obligated [the Board] to allow Valos to return to work as a permanent full-time bus driver." Valos further pled that he returned to work but, in breach of its contractual obligations, the Board terminated him in November 2005.

More than a year after Valos filed the complaint, the court dismissed it on the Board's motion for summary judgment. Defendant appealed from the implementing order.

We begin our analysis with our standard of review and the well-known principles that apply to summary judgment motions. When a party appeals an order granting summary judgment, our review is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. The Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Township Committee of the Township of Manalapan, 140 N.J. 366, 378 (1995).

When examining the motion record to determine whether genuine disputes as to material facts exist, we consider the procedural requirements of Rule 4:46-2. Rule 4:46-2(a) requires the moving party to include with the motion a statement of material facts that "set[s] forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." Rule 4:46-2(b) requires the opposing party to "file a responding statement either admitting or disputing each of the facts in the movant's statement." If the opposing party does not specifically dispute by citation to the motion record a sufficiently supported fact in the movant's statement, that fact will be deemed admitted. Ibid.

Significantly, "'[u]nsubstantiated inferences and feelings' are not sufficient to support or defeat a motion for summary judgment." Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011) (quoting Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App. Div. 2001)). Nor are "'[b]are conclusions in the pleadings, without factual support in tendered affidavits.'" Ibid. (quoting U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961)).

Having examined the motion record in view of those legal principles, we conclude that the trial court correctly granted the Board's summary judgment motion. The Board supported each paragraph in its statement of material facts with a proper citation to the record. Valos admitted all of the Board's statements of material fact, with one exception; he denied the Board's assertion that it hired him as a permanent bus driver. However, he provided no citation to the record to support his denial, nor did he explain in a certification the basis for his denial. In the absence of a proper citation to the record, a certification explaining the basis for his denial, and any competent evidence refuting the Board resolution hiring him, the Board's asserted fact that it hired Valos was deemed admitted. R. 4:46-2(b).

Valos contends that there are two facts from which it can be inferred that the Board did not hire him as a full-time employee as required by the settlement agreement: first, he was terminated shortly after being rehired as a school bus driver; second, the termination letter stated that his performance was unsatisfactory during his "probationary period." Neither argument is meritorious.

The timing of the Board's termination of Valos' employment is rendered immaterial by the intervening events. The Board received credible reports that, on two occasions, Valos endangered the lives of the students on his bus. As the trial court aptly stated, the Board's first responsibility was the safety and welfare of the children in its district, and the Board had reasonable grounds to question whether Valos was transporting those children safely. The trial court also noted that the Board had uncontradicted evidence of two life-endangering incidents. The Board was not required to wait until a third or fourth incident occurred before taking action. And, as previously noted, Valos did not submit a certification disputing the incidents.

The reference to a probationary period in the superintendent's letter terminating Valos is also immaterial. Valos has not provided any evidence that an employee serving a probationary period is inconsistent with full-time employment. He has made no argument about the meaning of the term "probationary period" in the context of the collective bargaining agreement between the union and the Board.

Valos contends the court erred by concluding that his claim was barred by the doctrine of collateral estoppel. Based on our de novo review of the summary judgment record, we need not reach that issue. For the reasons we have explained, the motion record presents undisputed evidence that the Board complied with the terms of the settlement agreement that concluded Valos' initial discrimination complaint. The trial court characterized that fact as uncontested, and we entirely agree.

Valos also contends that the Board's summary judgment motion should have been denied because Valos had alleged in his complaint that the Board breached contractual obligations to him "that were set forth in agreements to pay commissions, handbook and other employment documents." Those bare, conclusory assertions are insufficient to defeat a summary judgment motion. Valos did not provide a certification as to how the Board wrongfully deprived him of employment remuneration and benefits, other than by terminating his employment due to his dangerous driving. As we have already explained, there is no competent evidence the Board breached any agreement by terminating Valos under those circumstances.

In short, Valos offered no competent evidence to establish a genuinely disputed material fact as to the reason the Board terminated his employment. For that reason, the court correctly granted the Board's summary judgment motion.

Affirmed.