CURT BRICKELL v. CABLEVISION

NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5232-16T1

CURT BRICKELL,

          Plaintiff-Appellant,

v.

CABLEVISION, a/k/a
CSC TKR, LLC, MARK LIME,
and ROBERT KNAPP,

     Defendants-Respondents.
____________________________

                   Argued February 6, 2019 – Decided June 22, 2020

                   Before Judges Fuentes, Accurso, and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-0971-15.

                   Eric V. Kleiner argued the cause for appellant (Eric V.
                   Kleiner and Rudie O. Weatherman, on the briefs).

                   Barbara E. Hoey (Kelley Drye & Warren LLP) of the
                   New York bar, admitted pro hac vice, argued the cause
                   for respondents (Kelley Drye & Warren, LLP,
                   attorneys; Barbara E. Hoey and John P.J. Mattiace, on
                   the brief).
       The opinion of the court was delivered by

FUENTES, P.J.A.D.

       Plaintiff Curt Brickell worked at Cablevision a/k/a CSC TKR, LLC

(Cablevision) from December 1996 until he was terminated for cause on

February 26, 2014. On January 23, 2015,1 nearly a year after his termination,

plaintiff filed a six-count civil action against his former employer predicated on

violations of the Law Against Discrimination (LAD),  N.J.S.A. 10:5-1 to -42.

Plaintiff also named as defendants Mark Lime and Robert Knapp, two of his

former supervisors. In Counts I through III of the complaint plaintiff alleged he

was subject to a hostile work environment, discrimination, and retaliation.

According to plaintiff, his supervisors and coworkers incessantly harassed and

taunted him based on his alleged cognitive deficits and/or developmental

disabilities. Count IV alleged violations of his right to due process and equal

protection under our State and federal constitutions; Count V alleged intentional

infliction of emotional distress; and Count VI alleged negligent management or

retention by Cablevision.

       Plaintiff appeals from: (1) the court's decision to strike his expert's report

as a sanction for his attorney's failure to adhere to a court-ordered discovery


1
    Plaintiff filed an amended complaint on March 10, 2015.
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schedule; and (2) the court's subsequent decision to grant defendants' motion for

summary judgment which resulted in the dismissal of his complaint with

prejudice. After reviewing the record developed before the trial court, we

affirm.

      Plaintiff worked for Cablevision as a field service technician. In this role,

he traveled to customers' homes in response to reports of technical problems

with their cable service. Plaintiff's fellow service technicians made numerous

complaints to management about plaintiff's technical proficiency and work

ethic. They alleged that work assigned to plaintiff was not performed correctly

or left incomplete requiring other technicians to return to the worksite to finish

the job. From August 2000 until he was terminated on February 26, 2014,

Cablevision formally disciplined plaintiff sixteen times for dereliction of duty,

failure to complete work assignments, and other employment-related

misconduct.     Plaintiff's employment file contained a myriad of poor

performance evaluations, customer complaints, documented oral warnings about

substandard work, and written disciplinary warnings.

      For example, a written performance review dated January 19, 2001 shows

a supervisor personally met with plaintiff to discuss numerous complaints made

by his fellow field technicians about his consistent failure to finish work


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assignments. This form of misconduct is known as "kicking back" work and

caused "a lot of dissention in the crew." A "performance improvement" memo

sent to plaintiff by his supervisors dated January 22, 2001 warned plaintiff that

"[n]o work that is kicked back by you should be rescheduled to another

technician."

      However, substandard job performance and dereliction of duty were not

the only reasons that caused Cablevision to terminate plaintiff's employment.

Cablevision claims that the complaint made by a customer on February 4, 2014

was the event that tipped the scales in favor of termination. On that date, a

female customer called to complain that plaintiff arrived at her home on a

service call and began to work on her property without identifying himself as a

Cablevision service technician. The customer specifically stated that plaintiff's

surreptitious presence made her uncomfortable.

      The record of this incident also shows that plaintiff made a number of

personal phone calls while inside the customer's home. He asked the customer

to use her bathroom and remained inside the bathroom for an unusually long

period of time.    The customer claimed she heard plaintiff talking on his

cellphone while inside her bathroom.        Finally, plaintiff walked into the

customer's bedroom and closed the door to respond to a personal phone call.


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      Plaintiff's theory of liability against Cablevision is based on how he was

treated by his supervisors and coworkers. He alleges he was harassed and

ridiculed by supervisors Lime and Knapp "on a daily basis." He claims these

two men disparaged him "in the presence of his fellow service technicians" and

called him "retarded, stupid, slow, dumb" and other similar insults based on his

alleged intellectual disability and/or cognitive deficits. Other than a former

coworker from 2002, plaintiff did not identify anyone else he told about his

alleged cognitive disabilities. The coworker claimed plaintiff told her he was

dyslexic. However, plaintiff has never been diagnosed with dyslexia. Plaintiff

also acknowledged at his deposition that his alleged learning disability did not

hamper his ability to perform his work-related responsibilities.       Moreover,

plaintiff did not produce any medical evidence that he was diagnosed with a

learning disability during the time he was employed by Cablevision.

      Discovery began in March 2015. On August 22, 2016, the judge entered

a case management order (CMO): (1) extending discovery until December 21,

2016; (2) requiring plaintiff to complete defendants' depositions by no later than

October 28, 2016; and (3) requiring the parties to complete all fact-witnesses

depositions by no later than December 21, 2016. The CMO also set deadlines

for serving expert reports and the completion of the experts' depositions.


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Plaintiff was required to serve his expert's report by no later than September 30,

2016. The attorneys retained the right to modify any part of the court-imposed

deadlines by consent provided the modification did not change the CMO's

discovery end date

      On September 30, 2016, plaintiff's counsel served defendants with a

preliminary psychological report authored by Dr. Myra J. Marshall, plaintiff's

expert. In his transmittal letter, plaintiff's counsel noted that "this report will be

supplemented in the very near future." On October 11, 2016, defendants moved

to strike Dr. Marshall's September 30, 2016 preliminary report and to preclude

plaintiff from submitting any additional expert reports.         In an order dated

December 12, 2016, the trial judge granted defendants' motion. The judge found

Dr. Marshall's September 30, 2016 preliminary report was incomplete and did

not justify an extension of the discovery end date. The judge concluded that

acceptance of this incomplete report would violate the CMO's unambiguous

deadlines. The judge also denied plaintiff's motion for reconsideration.

      Defendants moved for summary judgment thereafter arguing plaintiff was

unable to prove any of the allegations in his complaint against Cablevision and

the two named supervisors as a matter of law. The motion came for oral

argument before the trial judge on April 21, 2017. Before hearing from counsel,


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the judge noted for the record that the case was scheduled for trial on May 2,

2017 and the parties had waived the ten-day requirement "with respect to the

summary judgment rules."2 After considering the arguments of counsel, the

judge granted defendants' motion and dismissed the complaint with prejudice as

a matter of law.

       Plaintiff's argument challenging the trial judge's decision to preclude him

from presenting expert testimony is without merit. Rule 4:17-4(e) authorizes a

trial court to set a date certain for the production of expert reports. The record

shows plaintiff's counsel was well aware of the discovery schedule established

by the trial court in its CMO dated August 22, 2016. The trial judge has the

discretion to sanction a party who violates such an order. Maurio v. Mereck

Constr. Co.,  162 N.J. Super. 566, 569 (App. Div. 1978). These sanctions may

include the preclusion of an expert's report or testimony. Ibid. In his decision

to strike Dr. Marshall's incomplete expert report, the judge found plaintiff did


 2 Rule 4:46-1 provides, in relevant part, that:

             All motions for summary judgment shall be returnable
             no later than [thirty] days before the scheduled trial
             date, unless the court otherwise orders for good cause
             shown, and if the decision is not communicated to the
             parties at least [ten] days prior to the scheduled trial
             date, an application for adjournment shall be liberally
             granted.
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not provide any reasonably justifiable basis to extend the long-established

deadlines in the CMO. To accept an incomplete expert's report in lieu of the

final document required under the CMO would undermine the court's authority

to manage civil disputes and creates an incentive for unscrupulous parties to use

these half-measures as a subterfuge to extend the discovery deadline.

         An appellate court will generally defer to a trial court's disposition of

discovery matters, unless the record shows a clear abuse of discretion. Rivers

v. LSC P'ship,  378 N.J. Super. 68, 80 (App. Div. 2005). An abuse of discretion

"arises when a decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis.'" Flagg

v. Essex Cnty. Prosecutor,  171 N.J. 561, 571 (2002) (quoting Achacoso–

Sanchez v. Immigration & Naturalization Serv.,  779 F.2d 1260, 1265 (7th Cir.

1985)). We discern no legal or factual basis to conclude the trial judge abused

his discretion when he enforced the discovery deadlines established in the

August 22, 2016 CMO.

         Independent of these discovery violations, the trial judge granted

defendants' motion for summary judgment and dismissed plaintiff's cause of

action as a matter of law. Plaintiff's arguments attacking this decision also lack

merit.


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      A trial court must grant a motion for summary judgment when "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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.

Co.,  224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). To determine whether

there is a genuine issue of material fact in dispute, the motion judge must

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 no n-

moving party." Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).

This court applies the same standards and reviews a trial court's order granting

a motion for summary judgment de novo. Globe Motor Co. v. Igdalev,  225 N.J.
 469, 479 (2016).

      Here, the trial judge concluded that plaintiff did not make out a prima

facie case of a hostile work environment based on his alleged intellectual

disabilities. To survive defendants' summary judgment motion, plaintiff must

show: (1) that he was harassed by his coworkers and supervisors; (2) this

harassment would not have occurred but for his alleged intellectual disability;


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(3) the harassment was so severe and/or pervasive that; (4) a reasonable person

with the same intellectual disability would believe that; (5) the conditions of

employment were altered and the work environment was hostile and/or abusive.

Aguas v. State,  220 N.J. 494, 509 (2015) (alleging hostile work environment

through gender-based harassment).

      The Court adopted a similar standard in Taylor v. Metzger,  152 N.J. 490

(1998), a case involving allegations of racial slurs in the workplace. The Court

in Taylor identified the elements a plaintiff must satisfy to establish a prima

facie case of hostile work environment based on racial animus: (1) the

complained of conduct would not have occurred but for plaintiff's status as a

member of a protected class; (2) the conduct was severe and/or pervasive; (3) to

make a reasonable individual who is a member of the protected class conclude

that; (4) the conditions of employment have been altered and the work

environment is hostile or abusive. Id. at 498.

      Here, the judge found plaintiff did not make out a prima facie case of a

hostile work environment based on plaintiff's actual intellectual disabilities.

Stated differently, plaintiff did not produce sufficient evidence to meet the

standard established by the Court in Aguas and Taylor as a matter of law.   The

judge found plaintiff did not prove he is a member of a protected class and did


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not produce evidence that being called "brick-head" by his coworkers and his

two supervisors as a nickname is sufficient to establish a reasonable individual

would conclude the conduct was severe and pervasive, as opposed to

sophomoric behavior and/or benign horseplay in the workplace.

      Finally, the trial judge concluded plaintiff is barred from bringing this

cause of action by the two-year statute of limitations applicable to LAD claims.

 N.J.S.A. 2A:14-2. All of the evidence plaintiff produced to support his claims

of bullying and other hostile acts in the workplace based on his alleged

intellectual disabilities and/or cognitive limitations occurred in 2000 and 2001.

Plaintiff filed this LAD complaint against Cablevision and his two supervisors

on January 23, 2015.

      It is also undisputed that plaintiff did not base his LAD cause of action on

being "perceived" as an intellectually disabled or cognitively impaired

individual. The following exchange between plaintiff's counsel and the trial

judge in the course of oral argument addressing defendants' summary judgment

motion dispels any lingering doubts about this issue:

            THE COURT: Is this a perceived disability case?

            PLAINTIFF'S COUNSEL: And the answer to your
            question, Judge, is it is not a perceived disability case.
            In the arguments made by plaintiff at the summary
            judgment stage what we're saying to the [c]ourt is

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            there's ample evidence in this particular case to indicate
            at the summary judgment stage, similar to where we are
            with many of these cases that go to trial and then we
            have these issues that come up on appeal, that there is
            ample evidence that the disability is readily apparent.

      The judge ruled that plaintiff cannot assert a cause of action based on

being intellectually disabled without expert medical or psychological evidence

to support it. We agree. Plaintiff's contrary position in this appeal is unavailing.

A party cannot raise a new cause of action in opposition to summary judgment

on appeal. Carlini v. Curtiss-Wright Corp.,  71 N.J. Super. 101, 109 (App. Div.

1961). We thus end our analysis by incorporating by reference the trial judge's

statement of reasons attached to his June 29, 2017 order granting defendants'

motion for summary judgment. Plaintiff's remaining arguments lack sufficient

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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