Opinion
DOCKET NO. A-0414-14T3
03-24-2016
ROBERT REPSHA, Plaintiff-Appellant, v. NEW JERSEY STATE POLICE, Defendant-Respondent.
Lourdes Lucas argued the cause for appellant (Law Offices of Peter C. Lucas, LLC, attorneys; Ms. Lucas, on the brief). Nicole Adams, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel and on the brief; Ms. Adams and Roshan D. Shah, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-694-12. Lourdes Lucas argued the cause for appellant (Law Offices of Peter C. Lucas, LLC, attorneys; Ms. Lucas, on the brief). Nicole Adams, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel and on the brief; Ms. Adams and Roshan D. Shah, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Robert Repsha — a white, now-retired, state trooper — commenced this LAD action against his former employer, alleging he was passed over for promotion — once in 2010 and twice in 2012 — because, in 2006, he filed a hostile work environment complaint with the Equal Employment Opportunity Commission against an African-American superior officer. Plaintiff also suffered a heart attack in October 2010 and claims he was not accommodated after his return to work or that he was otherwise retaliated against because he sought an accommodation.
Plaintiff was fifty-two years old at the time of his retirement in October 2013.
Law Against Discrimination, N.J.S.A. 10:5-1 to -42.
Plaintiff alleges he suffered a heart attack in October 2010 and underwent a procedure for the placement of a stent. Not long thereafter he returned to light duty, where he remained despite a determination he was eligible for full duty.
Defendant obtained summary judgment, and plaintiff appeals, arguing, among other things, that he established a prima facie case of discrimination and that the judge erred in entering judgment despite the presence of disputed questions of material fact. We find all plaintiff's arguments to be of insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Dennis R. O'Brien in his thorough and well-reasoned oral decision. We add only the following brief comments.
In his submissions, plaintiff describes at length the various circumstances surrounding the three promotions he failed to achieve that lie at the heart of his complaint. Assuming his factual assertions to be true, as we must, plaintiff has at best demonstrated that many factors were considered by the organization when promoting troopers to higher ranks. He has failed, however, to demonstrate how the final promotional decisions were discriminatory or retaliatory. In fact, plaintiff recognizes he was ineligible for one of the three potential promotions because of a pending disciplinary proceeding. And the other promotions denied him on or after 2010 were too distant in time from the 2006 EEO complaint, which allegedly triggered those adverse employment decisions. In addition, plaintiff acknowledged the 2006 EEO complaint was not based on race, thereby demonstrating the absence of a discriminatory link between it and the later adverse employment actions.
As the opponent of a summary judgment motion, plaintiff was entitled to have the trial judge assume the truth of the evidence supporting his position as well as all reasonable inferences to be drawn therefrom. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing summary judgment, we owe the trial judge no deference and apply the same standard. W.J.A. v. D.A., 210 N.J. 229, 237 (2012).
In that instance, plaintiff called in sick after playing a round of golf. Learning superior officers were at the same golf course that day, and concerned he would be disciplined for improperly taking a sick day, plaintiff changed his request to a personal leave day. Plaintiff admitted he was ineligible for promotion because of this pending disciplinary matter. He later accepted, without a contest, a written reprimand.
The mere fact that adverse employment action occurs after the alleged protected activity is not alone sufficient to present or suggest a causal link between the two events. Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). Far lesser gaps in time than presented here have been found insufficient to suggest a causal link. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509, 515 (2001) (twenty months); Weston v. Pennsylvania, 251 F.3d 420, 431-32 (3d Cir. 2004) (one year); House v. Carter-Wallace, Inc., 2 32 N.J. Super. 42, 51 (App. Div.) (three months), certif. denied, 117 N.J. 154 (1989). --------
We also find no merit in plaintiff's arguments that defendant failed to accommodate his alleged disability. Assuming plaintiff's cardiac condition constituted a disability — a question we need not decide — the record reveals that defendant accommodated him by assigning desk duty. And, as for plaintiff's contention that he should have been given a day shift — the assignment of a night shift being, in his view, retaliatory, we agree with the trial judge that there was inadequate evidence to permit that claim to survive summary judgment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION