Opinion
DOCKET NO. A-3151-14T4
08-16-2016
MARY BORRELLO and ALFONSO BORRELLO, JR., her husband, Plaintiffs-Appellants, v. ELIZABETH BOARD OF EDUCATION, a government entity; PABLO MUNOZ, individually and in his capacity as superintendent at the time that these events took place; KAREN A. MURRAY, individually and in her capacity as Director for Human Resources at the time that these events took place, Defendants-Respondents.
Tiana C. Gimbrone argued the cause for appellants (Rinaldo and Rinaldo Associates, LLC, attorneys; Matthew T. Rinaldo, on the briefs). Ruby Kumar-Thompson argued the cause for respondents Elizabeth Board of Education and Pablo Munoz (Adams Gutierrez & Lattiboudere, LLC, attorneys; Jerrold J. Wohlgemuth, of counsel and on the brief; Ms. Kumar-Thompson, on the brief). Stephanie L. DeLuca argued the cause for respondent Karen A. Murray (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Patrick F. Carrigg, of counsel; Ms. DeLuca, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1329-14. Tiana C. Gimbrone argued the cause for appellants (Rinaldo and Rinaldo Associates, LLC, attorneys; Matthew T. Rinaldo, on the briefs). Ruby Kumar-Thompson argued the cause for respondents Elizabeth Board of Education and Pablo Munoz (Adams Gutierrez & Lattiboudere, LLC, attorneys; Jerrold J. Wohlgemuth, of counsel and on the brief; Ms. Kumar-Thompson, on the brief). Stephanie L. DeLuca argued the cause for respondent Karen A. Murray (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Patrick F. Carrigg, of counsel; Ms. DeLuca, on the brief). PER CURIAM
Plaintiffs Mary Borrello and Alfonso Borrello, Jr., challenge the Law Division's dismissal of their complaint and subsequent denial of reconsideration. We affirm.
We will refer to Mary and Alfonso collectively as "plaintiffs." We will refer to each plaintiff individually by his or her first name.
I.
In reviewing the dismissal of a complaint under Rule 4:6-2(e), "courts must 'assume the facts as asserted by plaintiff are true and give her the benefit of all inferences that may be drawn in her favor.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005) (citation omitted). Here, plaintiffs' amended complaint alleged the following facts.
Mary worked for defendant, the Elizabeth Board of Education (Board) as a secretary beginning in 1986. Mary received numerous personnel evaluations indicating high marks in skill, punctuality, cooperation, personality, initiative, and composite ratings. The terms of Mary's employment were governed by a collective bargaining agreement (CBA) between the Board and her union, the Elizabeth Education Association (Association).
At the inception of her employment with the Board, Mary was pressured into supporting political fundraisers for supervisory and school board officials. It was common knowledge that a failure to support a certain candidate would result in job-related retaliation.
Around February 2008, Alfonso filed a petition to be a candidate for election to the Board. Almost immediately thereafter, the Board's "head investigator" called Mary into his office and accused her of "impropriety with respect to her husband's campaign for election to the school board." On March 7, 2008, Mary again was summoned to the Board office, informed that she was being placed on administrative leave with pay, and ordered to retrieve from the school all of her personal belongings and identification materials.
On March 20, 2008, Mary received a letter informing her that the Board adopted a resolution placing her on administrative leave "pending conclusion of an ongoing investigation." Mary believed that the Board was attempting to file charges for misconduct and that it would seek her termination in retaliation for her support of her husband's candidacy. The Board never informed Mary of the nature of its investigation, and it never officially charged her with misconduct.
On July 19, 2010, co-defendant Karen Murray, the Board's Human Resources Director, wrote Mary that the Board had approved a resolution withholding her increment and salary adjustment for the 2010-2011 school year. Several months later, Mary received another letter from Murray ordering her to report to work at the Mitchell Building on September 7, 2010. The Mitchell Building had a room, commonly referred to as the "rubber room," where several school board employees and teachers who had pending disciplinary actions were ordered to report for work. The "rubber room" was dirty, contained scattered materials, and had a "documented case of scabies." Mary was not allowed to leave the room, was not permitted to eat in the room without a physician's note, and could not talk on the phone. Mary was forced to report to the rubber room for the next six months, until it was disbanded. At that time, Murray ordered Mary to stay home from work. Mary continued to receive her normal salary.
On July 5, 2011, Mary received another letter from Murray stating that the Board approved a Resolution withholding her increment and salary adjustment for the 2011-2012 school year. Mary continued to stay home from work but continued being paid.
On unspecified dates, Mary did not receive her paycheck within days after being told by a Board official that the check was in the mail. Mary sent Alfonso to the school to pick up her paychecks, but school officials refused to give him the checks without Mary's written authorization. Mary provided written authorization, and Alfonso began picking up her paychecks.
In April and May 2012, Alfonso made "at least a dozen telephone calls to inquire about Mary's job status, whether she would be on a transfer list to active assignment and the outcome of the long term 'investigation.'" However, most of the time Alfonso was unable to reach anyone and left voicemails. In April and May 2012, the Board did not pass a resolution transferring Mary, and plaintiffs anticipated that Mary's increment would be withheld for the 2012-2013 school year. In the same period, Board employees refused to be "friends" with Mary on Facebook. Mary believed this was motivated by politics and other improper purposes. As a result, Mary "succumbed to the pressure and was 'forced' to retire from Board service effective July 1, 2012."
On September 12, 2012, plaintiffs filed a Notice of Claim against the Board pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 13-10. On April 14, 2014, plaintiffs filed an eight-count complaint in the Law Division. As one of the counts alleged a violation of 42 U.S.C.A. § 1983, defendants removed the case to the United States District Court for the District of New Jersey pursuant to 28 U.S.C.A. § 1441. On July 17, 2014, the District Court entered an opinion and order dismissing plaintiffs' complaint without prejudice, with leave to amend the complaint to allege specific acts of adverse treatment.
On August 15, 2014, plaintiffs filed a seventeen-count amended complaint in the District Court. Defendants filed a motion to dismiss. In its October 22, 2014 opinion and order, the District Court applied the two-year statute of limitations in N.J.S.A. 2A:14-2 to the amended complaint's allegations of retaliation under § 1983 and New Jersey law in counts one, five, six, twelve, thirteen, and fourteen. The court dismissed those counts "with prejudice, as time-barred," because "[p]laintiffs failed to allege any actionable acts of retaliation by any of the Defendants that occurred within two years of April 2014." The court also dismissed counts two, four, and seven, which alleged due process and conspiracy violations under § 1983 and New Jersey law, as being barred by the same two-year statute of limitations.
The District Court declined to exercise supplemental jurisdiction over plaintiffs' remaining state law claims, and remanded counts three, eight, nine, ten, eleven, fifteen, sixteen, and seventeen to the Law Division. There, defendants filed a motion to dismiss plaintiffs' amended complaint pursuant to Rule 4:6-2(e).
On December 19, 2014, after hearing argument, Judge Thomas J. Walsh issued an oral opinion dismissing those counts with prejudice. He found that "all of defendants arguments [were] sound and correct" and that he was not "persuaded that any of this complaint should go forward, even given the liberal standard of [Rule] 4:6-2(e)." The Law Division's order dismissing plaintiffs' amended complaint was filed December 19, 2014, and served on December 24, 2014.
On January 13, 2015, plaintiffs filed a motion for reconsideration, which the judge heard on February 6, 2015, and denied by order filed the same day. On March 12, 2015, plaintiffs filed their first notice of appeal, which sought review only of the trial court's February 6, 2015 order denying reconsideration. On March 31, 2015, plaintiffs filed another amended notice of appeal, which sought review of both the December 19, 2014 order and the February 6, 2015 order.
II.
Determining our standard of review in this case is complicated by plaintiffs' delay in appealing the December 19, 2014 order. Plaintiffs' initial notice of appeal was timely only regarding the order denying reconsideration, and appealed only that order. See R. 2:4-1(a), -3(e); Potomac Aviation, LLC v. Port Auth. of N.Y. & N.J., 413 N.J. Super. 212, 222 (App. Div. 2010). "[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
However, if a motion for reconsideration implicates "the substantive issues in the case and the basis for the motion judge's ruling on the summary judgment and reconsideration motions" is "the same," then "an appeal solely from the grant of summary judgment or from the denial of reconsideration may be sufficient for an appellate review of the merits of the case, particularly where those issues are raised in the" plaintiff's case information statement. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002). That was the situation here, so we exercised our discretion to consider the merits of the original order, and denied defendants' motion to dismiss. See Potomac, supra, 413 N.J. Super. at 222; Tara Enters., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App. Div. 2004).
"We review a grant of a motion to dismiss a complaint for failure to state a cause of action de novo, applying the same standard under Rule 4:6-2(e) that governed the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 124 (App. Div. 2014). We are "limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). The test is essentially "whether a cause of action is 'suggested' by the facts." Ibid. (citation omitted). A "reviewing court 'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid. (citation omitted). We hew to that standard of review.
III.
Count three of plaintiffs' amended complaint alleged a "violation of N.J.S.A. 18A:1-1 et seq." N.J.S.A. 18A:1-1 to 76-4 is the Education Law, also known as the "school laws." The Law Division agreed with defendants that plaintiffs failed to exhaust the administrative remedies provided under N.J.S.A. 18A:6-9. See N.J.A.C. 6A:3-1.1 to -13.1. N.J.S.A. 18A:6-9 provides that "[t]he commissioner shall have jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws." Plaintiffs do not dispute that count three "should have been dismissed because the Commissioner of Education has primary jurisdiction to hear and determine all controversies arising under the school laws." Bower v. Bd. of Educ., 149 N.J. 416, 420 (1997).
Plaintiffs also do not contest the dismissal of Alfonso's per quod claim in count sixteen, or plaintiffs' punitive damages claim in count seventeen.
Instead, plaintiffs argue that the Law Division applied N.J.S.A. 18A:6-9 to their contractual claims under the collective bargaining agreement. In fact, the Law Division dismissed those counts on other grounds, as set forth below.
IV.
The Law Division applied N.J.S.A. 34:13A-5.3 to dismiss plaintiffs' contractual claims arising under the CBA. Count eight alleged breach of the CBA by constructive wrongful termination. Count nine alleged breach of express terms of the CBA pertaining to unused sick-time benefits upon retirement. Count ten alleged breach of the covenant of good faith and fair dealing inherent in the CBA. Count eleven alleged breach of contract for hostile work environment and wrongful constructive discharge, invoking the CBA's requirements of "respect" and "dignity."
N.J.S.A. 34:13A-5.3 is part of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21. N.J.S.A. 34:13A-5.3 governs the negotiation of CBAs covering public employees, and provides that "grievance and disciplinary review procedures shall be included in any agreement entered into between the public employer and the representative organization."
N.J.S.A. 34:13A-5.3 "provides that '[g]rievance and disciplinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement.'" Snitow v. Rutgers Univ., 103 N.J. 116, 124 (1986) (quoting N.J.S.A. 34:13A-5.3). N.J.S.A. 34:13A-5.3 "mandates the use of the grievance procedures established by the collective negotiation agreement 'for any dispute covered by the terms of such agreement' and governs all disputes arising out of the rights and duties created by the contract." Saginario v. Attorney Gen., 87 N.J. 480, 491 (1981) (quoting N.J.S.A. 34:13A-5.3).
Here, all of plaintiffs' breach of contract claims arise out of the rights and duties created by the CBA. So does their claim of breach of the covenant of good faith and fair dealing. See Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 149-50 (App. Div. 2008) (requiring arbitration of a claim of breach of the duty of good faith and fair dealing because it arises from and relates to the contract).
For such disputes, the CBA contained a comprehensive grievance procedure. Under the CBA, a "'grievance' shall mean a complaint by an employee(s) or by the Association that there has been an inequitable, improper, or unjust application, interpretation or violation of Board Policy, this Agreement, or an administrative decision[.]" Moreover, the CBA specifically provides that discipline, reductions in compensation, and discharge without just cause "shall be subject to the grievance procedure." Thus, all of Mary's contractual claims, including her allegations of unfair treatment, denied compensation, and wrongful discharge, are subject to the CBA's grievance procedure.
It is undisputed that Mary failed to avail herself of this grievance procedure before filing this lawsuit. Plaintiffs show no reason they should be "relieved of a contractual agreement to grieve a dispute over the terms and conditions of public employment and [allowed to] pursue a claim for relief in a court of law." Snitow, supra, 103 N.J. at 117. Thus, they are "barred from seeking judicial review . . . due to a failure to exhaust administrative remedies." Id. at 124.
Plaintiffs argue that the grievance procedure in the CBA was not really available for Mary's use, because an Association representative said the Association would not provide support, assistance, or an attorney until Mary was "officially charged." However, the CBA provided that a grievance could be filed "by an employee(s) or by the Association," so Mary could have filed a grievance herself regardless of the position taken by the Association. Moreover, the CBA provides that "[a]n aggrieved employee may be represented at all stages of the grievance procedure by himself/herself or, at his/her option, by the Association or by a representative selected or approved by the Association." Thus, we reject Mary's arguments that she could not and thus need not file a grievance. See Snitow, supra, 103 N.J. at 125 (rejecting the plaintiff's claim that resorting to the grievance process would be futile).
The CBA also contained an arbitration provision that the Association could invoke if a grievance was rejected. Plaintiffs complain that the CBA states "[t]he recommendations of the arbitrator shall be advisory, except in the case of an alleged violation of this Agreement wherein the arbitrator's decision shall be final and binding on both parties." However, all of plaintiff's contractual claims alleged a violation of the CBA. In any event, plaintiffs cannot excuse Mary's failure to initiate the grievance procedure based on complaints about the subsequent arbitration option.
"Exhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle." Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979). However, plaintiffs argue that, in the interest of justice, the policy of exhaustion of administrative remedies should not apply to them. We recognize that "[t]he exhaustion doctrine is not an absolute." Id. at 561. "Exceptions exist when only a question of law need be resolved; when the administrative remedies would be futile; when irreparable harm would result; when jurisdiction of the agency is doubtful; or when an overriding public interest calls for a prompt judicial decision." Ibid. (citations omitted). However, plaintiffs' claims do not fall into any of those exceptions. Thus, we reject plaintiffs' arguments that they did not need to exhaust their administrative remedies as required by N.J.S.A. 34:13A-5.3.
Accordingly, we need not address defendants' argument that plaintiffs alleged unfair practices within the exclusive jurisdiction of PERC, see N.J.S.A. 34:13A-5.4(c), or plaintiffs' argument that PERC lacks expertise over contractual claims.
Because of Mary's failure to exhaust her grievance remedy, it was appropriate to dismiss Mary's contractual claims under the CBA against the Board. It was also appropriate to dismiss Mary's contractual claims under the CBA against the individual defendants because they, unlike the Board, were not parties to that contract. "'The obligation of contracts is, in general, limited to the parties making them.'" Aronsohn v. Mandara, 98 N.J. 92, 101 (1984) (citation omitted). Thus, "[a]n action on a contract cannot be maintained against a person who is not a party to it." Comly v. First Camden Nat'l Bank & Tr. Co., 22 N.J. Misc. 123, 127 (Sup. Ct. 1944) (citing 17 C. J. S., Contracts, 1143, § 520); accord Figueroa v. City of Camden, 580 F. Supp. 2d 390, 408 (D.N.J. 2008); see F.D.I.C. v. Bathgate, 27 F.3d 850, 876 (3d Cir. 1994) (applying the same rule to a claim of breach of the duty of good faith and fair dealing). Accordingly, we affirm the Law Division's dismissal of counts eight, nine, ten, and eleven against all defendants.
V.
Plaintiffs argue that the Law Division incorrectly dismissed count fifteen, which alleged the tort of intentional infliction of emotional distress (IIED). The Law Division agreed with defendants that plaintiffs failed to file a timely notice of claim as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10. The TCA provides that plaintiffs are "forever barred from recovering against a public entity or public employee if: (a) [they] failed to file the claim with the public entity within 90 days of accrual of the claim . . . ; or (b) [t]wo years have elapsed since accrual of the claim." N.J.S.A. 59:8-8(a) & (b).
Here, Mary filed a TCA notice of claim dated September 24, 2012. In its July 17, 2014 order dismissing plaintiffs' initial complaint, the District Court found that plaintiffs failed to allege any wrongful acts occurred after July 5, 2011. As a result, the District Court dismissed plaintiffs' IIED claim without prejudice, stating that plaintiffs could amend that claim "only if they can allege facts suggesting that Defendants acted outrageously within ninety days of filing their Tort Claim Notice with the Board or a legally valid reason why the ninety day limit should be tolled or is not otherwise applicable." Plaintiffs' amended complaint re-alleged the IIED count without change, and added factual allegations that were not explicitly within ninety days of September 24, 2012.
Alfonso never filed a notice of claim.
Even assuming plaintiffs' allegations about delayed paychecks, unanswered phone calls, and denied "friend" requests on Facebook relate to the period after June 26, 2012, plaintiffs' claim still fails. "In order for plaintiff to prevail on an intentional infliction of emotional distress claim, he must show: (1) intentional conduct; (2) the conduct was extreme and outrageous; (3) the conduct proximately caused plaintiff's emotional distress; and (4) the emotional distress was severe." DeAngelis v. Hill, 180 N.J. 1, 20 (2004). "The conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of Torts, § 46 comment d (1965)). Under the Buckley standard, "'it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.'" Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001) (citation omitted).
We have considered plaintiffs' allegations of defendants' conduct occurring within ninety days of Mary's filing of her notice of claim, and indeed within two years of plaintiffs' filing of their complaint. We conclude "as a matter of law that the conduct referenced here does not meet the enhanced standard of outrage required by Buckley." Young v. Hobart W. Grp., 385 N.J. Super. 448, 468 (App. Div. 2005). Even if that conduct compelled Mary's retirement, the retirement would not satisfy the Buckley standard. In any event, "'"[w]hile loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event" and cannot provide a basis for recovery for infliction of emotional distress.'" Griffin, supra, 337 N.J. Super. at 24 (citations omitted). Accordingly, we affirm the Law Division's dismissal of count fifteen.
Thus, "even applying the generous standard used in addressing a motion to dismiss for failure to state a claim upon which relief can be granted, this pleading fails." Nostrame v. Santiago, 213 N.J. 109, 126-27 (2013) (citing R. 4:6-2(e)). Moreover, plaintiffs have already had an opportunity to correct this problem, but their amended complaint failed to do so. Further, their remaining counts are barred by impediments that cannot be cured by amendment, namely Mary's failure to exhaust administrative remedies and her attempting to bring contractual claims against non-parties to the contract.
Plaintiffs have not offered to cure the failure to exhaust. Moreover, the CBA provided that a grievance "must be initiated by the grievant . . . within twenty workdays from the time the grievant knew or should have known of its occurrence." More than four years have passed since the last alleged occurrence. --------
Accordingly, the Law Division properly dismissed plaintiffs' complaint with prejudice. See id. at 127 (dismissal may be with prejudice if there is an "impediment such as a statute of limitations"); see also Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113-14 (App. Div.), certif. denied, 208 N.J. 368 (2011). Plaintiffs also cannot show the Law Division clearly abused its discretion in denying reconsideration.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION