Opinion
DOCKET NO. A-4821-13T3
04-06-2015
PATRICIA PEZZA, Plaintiff-Appellant, v. JACKSON BOARD OF EDUCATION, ATLANTIC and CAPE MAY COUNTIES ASSOCIATION OF SCHOOL BUSINESS OFFICIALS JOINT INSURANCE FUND, SCIBAL ASSOCIATES, INC. and EXCEPTIONAL CASE SERVICES, INC. Defendants, and INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 97, Defendant-Respondent.
Biebelberg & Martin, attorneys for appellant (Gerald J. Martin, on the brief). Mets Schiro & McGovern, L.L.P., attorneys for respondent (Kevin P. McGovern, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1226-12. Biebelberg & Martin, attorneys for appellant (Gerald J. Martin, on the brief). Mets Schiro & McGovern, L.L.P., attorneys for respondent (Kevin P. McGovern, of counsel and on the brief). PER CURIAM
Plaintiff appeals from an April 30, 2014 order granting summary judgment to defendant International Brotherhood of Teamsters, Local 97 (the "union"), and a June 6, 2014 order denying reconsideration. We reverse.
The Jackson Board of Education (the "JBOE") employed plaintiff as a food truck driver. Plaintiff alleged that in October 2010, she sustained serious injuries to her neck and back when a JBOE truck she was operating was struck from behind. Plaintiff sought medical treatment for her injuries in Florida, where she and her husband had been staying.
On September 6, 2011, Dr. John S. Sarzier, a workers' compensation neurosurgeon, cleared plaintiff to return to work on light duty (the "clearance"). In a September 19, 2011 letter (the "September 19 letter"), JBOE Assistant Superintendent, Dr. Stephen Genco informed plaintiff that the JBOE would accommodate her work restrictions and instructed her to return to work on September 26, 2011.
Dr. Sarzier cleared plaintiff for work involving sedentary activity, no lifting over twenty pounds, no above-head, over-head lifting, and no ground-to-waist lifting.
Plaintiff did not return to work on September 26, 2011, because she had an appointment with Dr. Sarzier on that day. Dr. Genco testified at his deposition that he told plaintiff to "[g]o to the doctor's appointment" instead of returning to work and after the appointment, the JBOE would "make a determination at that point."
In an October 4, 2011 letter (the "October 4 letter"), Dr. Genco directed plaintiff to return to work on October 11, 2011, or be deemed to have abandoned her employment with the JBOE. At this time, plaintiff had been attempting to schedule lumbar surgery due to the injuries that she had sustained in the accident. Dr. Genco testified at his deposition that he could not recall if he was aware of plaintiff's lumbar surgery plans when he drafted the October 4 letter. In light of her efforts to schedule surgery, plaintiff did not return to work on October 11, 2011.
The record contains emails, dated October 6 and 7, 2011, addressed to Dr. Genco that reference plaintiff's lumbar surgery plans.
In an October 12, 2011 letter, the JBOE informed plaintiff that it would be discussing her employment status at an upcoming meeting. Plaintiff then contacted her union representative, Jill Pittman. On October 18, 2011, Pittman faxed a letter to the JBOE stating that plaintiff "has not abandoned her job" and that she was still in need of medical treatment. The JBOE nevertheless terminated plaintiff's employment effective October 19, 2011.
In an October 20, 2011 email, Pittman informed plaintiff that she would be filing a grievance on her behalf, but she never filed one. Pittman discussed plaintiff's case with union president John Gerow and they agreed not to file a grievance because they did not think that plaintiff would be able to prevail. On November 9, 2011, Pittman sent plaintiff the following email:
I have talked to [Gerow] about what is the correct way to hand your situation.On November 21, 2011, Dr. Mark Gerber, performed surgery on plaintiff's back. On November 28, 2011, plaintiff's husband replied to Pittman's email indicating that plaintiff had just undergone lumbar surgery. He instructed Pittman to "set up a doctor[']s appointment any time after Dec[ember 15]." Pittman did not schedule the appointment as requested by plaintiff's husband.
He told me that he thinks what we should do is write a letter to the [JBOE] telling them that you would be okay to see a doctor of their choosing so that way they know that you are not able to return to work. That doctor's prognosis would then overturn their decision to terminate you.
However, [Gerow] said they may make you come to Jersey for the appointment.
So I didn't want to write the letter until I got your ok.
So would that be alright? Let me know.
On January 5, 2012, plaintiff emailed Pittman that she retained an attorney to handle her workers' compensation claims and "want[ed Pittman] to file a grievance for wrong[ful] termination" and to schedule a hearing with the JBOE. Pittman replied that she would schedule a hearing "straight away." On January 10, 2012, Pittman emailed the JBOE requesting a meeting to discuss plaintiff's case. In response to plaintiff's request for the hearing date and a copy of her grievance, Pittman emailed plaintiff stating that she considered the January 10, 2012 email to be the grievance notice to the JBOE.
Pittman admitted at her deposition, however, that no grievance was ever filed.
On January 19, 2012, plaintiff asked Pittman for an update on her case and whether they were still planning to have plaintiff see a doctor of the JBOE's choice. Pittman replied that the JBOE was in the process of arranging the meeting that plaintiff had requested. On February 16, 2012, Pittman emailed plaintiff to inform her that Dr. Genco had agreed to meet with the union to discuss plaintiff's case. This meeting never occurred.
On April 11, 2012, plaintiff filed a complaint against the JBOE, the union, Atlantic and Cape May Counties Association of School Business Officials Joint Insurance Fund, Scibal Associates, Inc., and Exceptional Care Services, Inc. ("defendants"), alleging in part that the union breached its duty of fair representation because the union's failure to file a wrongful termination grievance on her behalf was arbitrary, discriminatory, or in bad faith. The union subsequently moved for summary judgment, which the judge granted.
Plaintiff subsequently entered into a consent order dismissing with prejudice all defendants from the case except the union.
On appeal, plaintiff argues that the judge erred in concluding that no reasonable jury could find that the union breached its duty of fair representation because plaintiff presented sufficient evidence that the union failed to conduct a reasonable investigation and arbitrarily decided not to pursue a grievance on plaintiff's behalf. In other words, plaintiff contends that the judge erred by resolving disputed predicate facts.
I.
A court should 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 reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Gormley v. Wood-El, 218 N.J. 72, 86 (2014). We 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 non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We also give the non-moving party "the benefit of the most favorable evidence and most favorable inferences drawn from that evidence." Gormley, supra, 218 N.J. at 86. We review the judge's legal conclusions on issues of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The duty of fair representation requires a union "'to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 563, 110 S. Ct. 1339, 1344, 108 L. Ed. 2d 519, 527 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 910, 17 L. Ed. 2d 842, 850 (1967)). To establish a breach of the duty of fair representation, the plaintiff must show that the union's actions were "arbitrary, discriminatory, or in bad faith." Vaca, supra, 386 U.S. at 190, 87 S. Ct. at 916, 17 L. Ed. 2d at 857.
"[A]s the primary guardians of the duty of fair representation," courts are to construe complaints alleging a breach of the duty of fair representation in such a way as to avoid dismissal whenever possible. Maher v. N.J. Transit Rail Operations Inc., 125 N.J. 455, 478 (1991) (citation and internal quotation marks omitted). However, the plaintiff has the heavy burden of presenting "substantial evidence of [conduct] that is intentional, severe, and unrelated to legitimate union objectives." Ibid. (citation and internal quotation marks omitted). A union "has broad discretion in its decision whether and how to pursue an employee's grievance against an employer." Chauffers, supra, 494 U.S. at 567-68, 110 S. Ct. at 1346, 108 L. Ed. 2d at 529; accord Padovano v. Borough of E. Newark, 329 N.J. Super. 204, 212 (App. Div. 2000).
Applying this standard, we conclude that the judge improperly granted summary judgment to the union.
II.
In granting summary judgment to the union, the judge noted that the record contained disputed facts as to plaintiff's condition at the time of the return-to-work letters, plaintiff's lumbar surgery plans, and the JBOE's knowledge of such plans. Although acknowledging that the parties disputed these predicate facts, the judge deferred to the union's broad discretion in handling grievances and found that the union did not breach its duty of fair representation as a matter of law.
The judge was correct to give deference to the union's wide discretion. See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46, 119 S. Ct. 292, 300, 142 L. Ed. 2d 242, 255 (1998) (noting that a union decision that is ultimately wrong is not a breach of its fair representation duty unless that decision is so unreasonable that it "is without rational basis or explanation." (citation and internal quotation marks omitted)). And a jury may find that the union did not breach its duty to plaintiff. However, at this stage in the proceedings, the existence of disputed predicate facts precludes the entry of summary judgment to the union.
It is disputed that plaintiff "refused to return to New Jersey" because on January 19, 2012, plaintiff asked Pittman if the union still wanted her to see a doctor of the JBOE's choosing. The record suggests that plaintiff may not have been able to travel in December 2011 and perhaps months after (due to her work-related surgery), but it does not support an inference that plaintiff refused to return to New Jersey, or follow the union's advice. That is especially so because plaintiff's husband requested Pittman to set up the doctor's appointment. The judge pointed out that there was a "difference of opinion" as to plaintiff's condition at the time of the return-to-work letters. It is further disputed whether plaintiff "placed the union in a position" where its options in advocating for plaintiff were limited. Even though Pittman told plaintiff that the January 10, 2012 email constituted a "grievance," Pittman admitted that the union never filed one.
In denying plaintiff's motion for reconsideration, the judge acknowledged: "I should not have said, 'refused.' I should have said did not avail herself of the opportunity. She didn't come back."
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At his deposition, Gerow explained that he did not think plaintiff could prevail on the grievance because "nothing in the [union] contract" permitted plaintiff to not show up to work or qualified her for additional leave based on the information known to him at the time. The basis of Gerow's decision not to file a grievance, the information that he had at the time, is hotly contested by the parties. There are clearly issues of fact as to plaintiff's condition and her need for additional surgery at the time she was expected to return to work. These disputed predicate factual issues must be resolved to determine whether the union breached its duty.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION