Opinion
DOCKET NO. A-2454-13T2
03-17-2015
JOHN KOZAK, Plaintiff-Appellant, v. TOWNSHIP OF CHERRY HILL, BERNARD PLATT, and MARIS KUKAINIS, Defendants-Respondents.
William C. MacMillan argued the cause for appellant (Law Offices of Igor Sturm, attorneys; Mr. MacMillan, on the brief). Joseph G. Antinori argued the cause for respondents (Brown & Connery, L.L.P., attorneys; Diane S. Kane, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi, Kennedy and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1165-11. William C. MacMillan argued the cause for appellant (Law Offices of Igor Sturm, attorneys; Mr. MacMillan, on the brief). Joseph G. Antinori argued the cause for respondents (Brown & Connery, L.L.P., attorneys; Diane S. Kane, on the brief). PER CURIAM
Plaintiff appeals from an order granting summary judgment dismissing various counts of the amended complaint in favor of defendants Township of Cherry Hill (township), Bernard Platt and Maris Kukainis, as well as an order dismissing other counts for failure to state a claim. We affirm.
I
Plaintiff was hired by the township in 1978 as a property maintenance inspector. In 1980, he was promoted to building inspector and his direct supervisor, Anthony Saccomanno, was promoted as the township's construction official. In 2008, Saccomanno announced he was retiring at the end of the year. Pursuant to a resolution adopted by the township council, plaintiff was appointed acting construction official, effective January 1, 2009, for a term of sixty days. Plaintiff contends that in early 2009, Platt, who was the mayor of Cherry Hill, and Kukainis, the township's business administrator, told him that he was going to be the next construction official.
In March 2009, Saccomanno was charged with accepting bribes from Building Inspection Underwriters, Inc., a third party inspection service used by the township, and eventually pled guilty to bribery. By letter dated March 11, 2009, Platt advised plaintiff that
due to the ongoing criminal investigation by the United States Attorney's Office, the Township has determined it would be appropriate to suspend your employment with pay effective immediately. Your employment as a building inspector will be re-evaluated during the course of this criminal investigation.During his deposition, Platt clarified plaintiff was suspended because they "didn't know how far the [criminal] investigation [into Saccomanno] would go."
Plaintiff met with various law enforcement officials during March 2009 but was advised he was not a target of the investigation. Plaintiff was not charged with any offense and there is no evidence he engaged in any wrongdoing. On March 30, 2009, plaintiff's attorney sent a letter to Platt requesting plaintiff be reinstated in light of the determination he had not engaged in any criminal conduct.
Plaintiff was never reinstated. By letter dated June 9, 2009, Kukainis advised plaintiff that his employment with the township was terminated "effective immediately due to layoffs" made necessary by "significant financial challenges that have left no other options." In addition to plaintiff, thirteen other township employees were laid off at that time.
Debra Campbell, the township's chief financial officer in 2009, testified at her deposition that, before the lay-offs, there were meetings held over the course of three months to determine how the township should reduce its budget. A decision was made to lay-off personnel. In determining which personnel were to be retained, consideration was given to those who had the capacity to perform additional tasks and absorb some of the work of another employee as the workforce was reduced. Consistent with this approach, those employees in the construction department who held the most number of licenses in the areas of expertise needed by the township were deemed more valuable and given a preference. After examining a document provided by the construction department setting forth the licenses held by each employee, plaintiff and another were laid off because they did not have as many licenses as others in the areas of specialty needed.
On March 4, 2011, plaintiff filed a complaint, subsequently amended, alleging he had been wrongfully discharged. On March 3, 2012, the trial court dismissed two counts of the amended complaint for failure to state a claim, see Rule 4:6-2(e). On July 12, 2013, the court granted defendants' motion for summary judgment on all but one of the remaining counts. The parties settled the last count on December 20, 2013. Plaintiff appeals the dismissal of the following claims: wrongful termination; breach of contract; equitable estoppel; tortious interference; and prima facie tort.
Plaintiff contends he was wrongfully terminated because he had previously worked closely with Saccomanno and was believed to have engaged in criminal conduct. He asserts defendants' claim that he was laid-off for the failure to have as many licenses as other employees was merely a pretext, and that it was a violation of a clear mandate of public policy, see Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980), to discharge an employee out of a belief he committed an offense merely because he worked with one who did.
Plaintiff also contends the township's Personnel Policies and Procedures Manual (manual) created an implied employment contract between the township and its employees, see Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 392-93 (1994), and that this contract protects employees from being discharged except for cause. Although plaintiff concedes there was a workforce reduction policy in the manual permitting lay-offs due to budget constraints, he argues that the township wrongfully failed to consider his seniority even if he were laid-off for financial reasons. He further asserts he had as many licenses as others who were not laid off.
Plaintiff also claims defendants breached an oral contract to appoint him construction official and, because he detrimentally relied upon that contract, defendants are equitably estopped from discharging him. Finally, plaintiff asserts Platt and Kukainis tortiously interfered with a prospective economic advantage, and that the township committed a prima facie tort.
II
A court may grant summary judgment when the record reveals "no genuine issue as to any material fact" and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In deciding whether summary judgment was either properly granted or denied, "we apply the same standard governing the trial court—we view the evidence in the light most favorable to the non-moving party." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).
In reviewing a decision on a motion to dismiss for failure to state a claim under Rule 4:6-2(e), this court applies a plenary standard of review. "The court examines the legal sufficiency of the facts alleged on the face of the complaint, doing so with liberality, and accords every reasonable inference to the plaintiffs." Borough of Seaside Park v. Comm'r of N.J. Dep't of Educ., 432 N.J. Super. 167, 200 (App. Div.) (citing Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739 (1989)), certif. denied, 216 N.J. 367 (2013).
Turning to plaintiff's specific arguments, we reject the premise an employer violates public policy if it discharges an employee because of a belief the employee was too closely associated with a convicted co-worker. In New Jersey, an employee has a cause of action for wrongful discharge when he has been terminated contrary to a clear mandate of public policy. Pierce, supra, 84 N.J. at 72. Sources of public policy include legislation; judicial decisions; and administrative rules, regulations, and decisions, although "regulation[s] concerned with technical matters probably would not be sufficient." Ibid.
The public policy mandate "must be clearly identified and firmly grounded." MacDougall v. Weichert, 144 N.J. 380, 391 (1996). A public policy that is "vague, controversial, unsettled, and otherwise problematic . . . does not constitute a clear mandate, [and] [i]ts alleged violation will not sustain a wrongful discharge cause of action." Id. at 392. Additionally, the "'clear mandate of public policy' must be one that on balance is beneficial to the public." Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 100 (1992); see also D'Agostino v. Johnson & Johnson, 133 N.J. 516, 531 (1993). Here, plaintiff failed to identify any clearly defined mandate of public policy that prohibits discharging an employee out of a perception his trustworthiness may be compromised by virtue of his association with a former supervisor convicted of taking bribes.
As for plaintiff's breach of contract claims, even if the employee manual created an implied contract that governed the parties' relationship and provided protection from termination except for cause, the manual also reserved the right to lay-off employees for "economy, efficiency, or other related reasons." The manual states in relevant part:
Cherry Hill Township may institute layoff actions for economy, efficiency or other related reasons, but will first consider voluntary alternatives. (Seniority, lateral or other re-employment rights for employees will be determined by the Mayor).
There is unrefuted evidence that for three months before the lay-offs, the township considered how best to cut costs and manage its budget, and ultimately determined to lay-off personnel. While plaintiff makes the claim he should have been the last to have been laid off because of his seniority, there is no evidence he had any rights because of his many years with the township. While the above provision gives the mayor the authority to determine what seniority rights exist, that does not mean such rights do exist or vest any employee with these rights.
Further, although plaintiff maintained he had as many licenses as those who were retained, the documentary evidence produced by the construction department does not bear out this contention. The record before us is devoid of any evidence that plaintiff had more licenses than reflected in the construction department's documents, other than his own self-serving assertion, which is insufficient to create a question of material fact for purposes of a summary judgment motion. Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995)). In addition, plaintiff did not address the township's need to retain those who held only certain kinds of licenses. In the final analysis, there is no evidence establishing that defendants violated the terms of any contract that may have existed between plaintiff and the township by laying him off.
Plaintiff claims Pratt and Kukainis told him that he was going to become a construction official. Even if true, their promises did not bind the township. N.J.S.A. 52:27D-126 provides that "[t]he appointing authority of any municipality shall appoint a construction official . . . to administer and enforce the code." The township's municipal code in effect at the time states that:
[t]he head of the Department of Construction Code Enforcement and Inspections shall be the Building Construction Official, who shall be appointed by the Mayor, with the advice and consent of the Township Council, for a four (4) year term, pursuant to the provisions of N.J.S.A. 52:27D-126.
Thus, only Platt, "with the advice and consent of the Township Council," had the authority to make the alleged promise and bind the township. There is no evidence the township council consented to appointing plaintiff as construction official and, thus, Platt did not have the authority to appoint or make any promises to appoint plaintiff until after the council voted on and approved plaintiff as the construction official.
Moreover, "the relationship between . . . public officials and the agencies appointing them[] 'is not ipso facto contractual in character,' but is instead controlled by the statutes pursuant to which the public official has been appointed." Walsh v. State, 290 N.J. Super. 1, 15 (App. Div. 1996) (Skillman, J.A.D., dissenting) (quoting Espinos v. Twp. of Monroe, 81 N.J. Super. 283, 288 (App. Div. 1963)), rev'd on dissent, 147 N.J. 595 (1997). One who accepts a public office or position does so "with full knowledge of the law and . . . that all limitations prescribed must be strictly observed." Ibid. (citations omitted). Accordingly, any promise made by either Platt or Kukainis did not bind or obligate the township to appoint plaintiff as construction official.
After carefully considering the record and the briefs, we conclude plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION