Opinion
DOCKET NO. A-3776-14T4
11-04-2016
WILLIAM HALPERN, Plaintiff-Appellant, v. TOWNSHIP OF IRVINGTON, IRVINGTON POLICE DEPARTMENT, MICHAEL CHASE, in his professional and individual capacity, and [JAIME] OLIVEIRA, Defendants-Respondents.
Eldridge Hawkins, attorney for appellant (Cecile D. Portilla, on the brief). Eric M. Bernstein & Associates, L.L.C., attorneys for respondents Township of Irvington and Irvington Police Department (Dominic P. DiYanni, of counsel and on the brief). Benedict & Altman, attorneys for respondent Michael Chase, join in the brief of respondents Township of Irvington and Irvington Police Department. Caruso Smith Picini P.C., attorneys for respondent Oliveira, join in the brief of respondents Township of Irvington and Irvington Police Department.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Yannotti and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2233-13. Eldridge Hawkins, attorney for appellant (Cecile D. Portilla, on the brief). Eric M. Bernstein & Associates, L.L.C., attorneys for respondents Township of Irvington and Irvington Police Department (Dominic P. DiYanni, of counsel and on the brief). Benedict & Altman, attorneys for respondent Michael Chase, join in the brief of respondents Township of Irvington and Irvington Police Department. Caruso Smith Picini P.C., attorneys for respondent Oliveira, join in the brief of respondents Township of Irvington and Irvington Police Department. PER CURIAM
Plaintiff William Halpern was a police officer in Irvington for twenty-four years. After he retired in May 2011, he sued the Township of Irvington (Township), the Irvington Police Department (IPD), and two senior members of IPD, Chief Michael Chase and Captain Jaime Oliveira. Plaintiff appeals from the April 10, 2015 order granting summary judgment to defendants and dismissing all of his claims with prejudice. We affirm.
I.
Plaintiff was hired as a police officer in Irvington in 1987. He is a white, Jewish male and he claims that he was subject to ongoing and continuing discrimination and harassment based on his religion and ethnicity. In his amended complaint and certifications, plaintiff has identified the alleged discrimination as occurring at various periods of time during his career. Thus, viewing those allegations in the light most favorable to plaintiff, we summarize plaintiff's allegations as he has organized them based on when they occurred.
Plaintiff asserts that between 1992 and 1995, he was subject to a series of bias acts and slurs by defendant Oliveira. Specifically, plaintiff certifies that Oliveira called him "Jew boy," "Bagel boy," "Hebe," and told him "here's a penny" and "save your penny." Plaintiff complained of these harassments and contends that Oliveira retaliated against him in 1995 by denying him overtime and changing his work assignments.
In November 1995, plaintiff sued the Township, IPD, and then Lieutenant Oliveira for malicious interference with an advantageous business relationship, intentional inflection of emotional distress, and harassment. On August 19, 1996, the trial court dismissed the complaint with prejudice against the Township and IPD for failure to state a claim upon which relief could be granted. The court also dismissed the complaint without prejudice against Oliveira with leave to file a motion to amend the complaint. Plaintiff did not amend the complaint, instead he appealed the trial court's decision. We affirmed. Halpern v. Township of Irvington, No. A-0954-96 (App. Div. June 27, 1997).
Plaintiff also asserts that "another series of harassments" occurred in 2000. He claims that Sergeant J.M. called him "Jew boy," "Jew bagel," and "Hebe." J.M. also allegedly threw a penny at plaintiff and stated, "here's your penny." Plaintiff reported these harassments to senior members of the police department.
We use initials to protect the privacy interest of non-party.
Plaintiff next focuses on the period from 2009 to 2011. In 2009, plaintiff was assigned to work in fleet management, where he was responsible for maintaining and servicing police vehicles. He contends that between August 2010 and December 2010, Chase and Oliveira took a series of actions concerning his work duties that were harassing. In August 2010, Chase and Oliveira reassigned a co-worker out of fleet management and, thereby, left plaintiff solely responsible for duties that required two people. In September 2010, Oliveira changed plaintiff's work hours from 7 a.m. to 5 p.m. to 8 a.m. to 6 p.m., thereby making it difficult for plaintiff to perform his duties, particularly because the town's garage had different hours. In December 2010, Oliveira and Chase initiated an investigation into a fire that occurred in plaintiff's private vehicle, which Oliveira and Chase suspected plaintiff had been using improperly during work hours. According to plaintiff, ultimately no charges were filed as a result of that investigation and he was cleared of any wrongdoing.
In December 2010, plaintiff requested to take off certain Jewish holidays, but he contends that Chase denied that request. Plaintiff then informed Chase that he would seek legal advice concerning that denial. Plaintiff goes on to allege that after he said he was seeking legal advice, Chase and Oliveira issued a series of orders in January, February, and March 2011 that adversely affected plaintiff's job responsibilities. Two of the orders addressed how to prepare for snow storm weather emergencies; another order prescribed the time for plaintiff's lunch break and when he needed to report for record section duty; and the other orders addressed police vehicle inspection, maintenance, and vehicle status reports. Plaintiff contends that the orders required him to do more maintenance and reports than were physically possible and also required him to install items and equipment in police vehicles without providing the needed items or equipment. Moreover, one of the maintenance orders directed plaintiff to inspect tire tread depth using a penny to measure the tread depth. Plaintiff felt the requirement to use a penny was derogatory.
Finally, plaintiff focused on his reassignment in March 2011, his ensuing sick leave, and his resignation on May 6, 2011. On March 11, 2011, Chase issued a notice reassigning plaintiff to parole duty effective March 21, 2011. In that new position, plaintiff would come under the supervision of Oliveira. Plaintiff wrote to Chase to remind him that Oliveira had previously harassed plaintiff and plaintiff expressed the view that his reassignment was related to his objection to Chase's denial of his request for Jewish holidays.
On March 21, 2011, plaintiff reported to his new assignment and Oliveira was waiting for plaintiff. Plaintiff contends that Oliveira told him, "who's got the power now?" and "now you are back under me." Plaintiff also claimed that during the morning roll call, Oliveira stared at plaintiff.
Plaintiff made these assertions in a certification that he filed in response to defendant's motion for summary judgment. At his prior deposition, however, plaintiff testified that Oliveira never said a word to him on March 21, 2011.
Plaintiff worked for approximately four hours on March 21, 2011, and then he took sick leave because he felt dizzy with headaches and diarrhea. Plaintiff was out on sick leave from March 21, 2011 until May 6, 2011. During that time, he provided IPD with weekly reports concerning his health, including a note in which his doctor directed him to remain on bed rest until May 30, 2015.
On May 6, 2011, plaintiff was directed to report for a fitness-for-duty exam. Plaintiff objected to the exam, and he was advised that he could be subject to discipline, including suspension or termination for insubordination. That same day, plaintiff submitted a letter stating he was retiring.
Plaintiff initiated this lawsuit on March 20, 2013, and in his amended complaint he asserted seven causes of action against defendants. Plaintiff claimed four violations of LAD for disparate treatment, retaliation, hostile work environment, and constructive discharge. Plaintiff also claimed that defendants violated the CRA, breached the implied covenant of good faith and fair dealing, and cast him in a false light.
Oliveira filed a motion to dismiss all claims against him in October 2013. In January 2014, the trial court granted that motion in part and dismissed certain of the claims against Oliveira, holding that plaintiff had failed to plead sufficient facts to support those claims. Thereafter, the parties engaged in and completed discovery and, in January 2015, the Township, IPD, and Chase moved for summary judgment. Oliveira joined in the motion seeking to dismiss the remaining claims against him. Plaintiff cross-moved for partial summary judgment.
On April 10, 2015, the trial court granted summary judgment to all defendants, denied plaintiff's cross-motion, explained the reasons for the decisions on the record, and issued orders memorializing the rulings. The court also ruled that plaintiff had no independent claims against IPD since IPD was not a separate entity from the Township. Plaintiff does not dispute that ruling on this appeal. Plaintiff also did not oppose the dismissal of his claim for casting him in a false light.
In addressing the LAD claims, the trial court held that the undisputed facts established that plaintiff failed to show ongoing and continuing discriminatory conduct. Instead, the court found that plaintiff's allegations involved discreet conduct. Thus, the court held that all allegations of discrimination before March 20, 2011, were time-barred by LAD's two-year statute of limitations since plaintiff filed suit on March 20, 2013. The court then analyzed the allegations of discrimination that occurred after March 20, 2011, and found that they did not establish prima facie claims of disparate treatment, retaliation, hostile work environment, or constructive discharge. Next, the court held that because plaintiff had voluntarily resigned, and was not discharged, he could not establish a breach of the implied covenant of good faith and fair dealing. Finally, the court noted that plaintiff had not corrected the pleading errors in his CRA claim and, thus, the court dismissed that claim with prejudice.
The court then entered two orders on April 10, 2015: an order granting summary judgment to all defendants and dismissing with prejudice all of plaintiff's claims; and an order denying plaintiff's motion for partial summary judgment. Plaintiff now appeals the order granting summary judgment to defendants.
II.
On appeal, plaintiff makes five arguments, some of which have subparts: (1) the trial court erred in granting summary judgment on the LAD claims because plaintiff showed that he was disparately treated, retaliated against, subject to a hostile work environment and constructively discharged due to his religion and ethnicity; (2) plaintiff established that defendants' discriminatory actions were continuing violations; (3) plaintiff presented evidence showing that defendants violated his civil rights; (4) plaintiff presented evidence that he was constructively discharged in violation of public policy; and (5) plaintiff presented evidence that defendants breached the implied covenant of good faith and fair dealing. We are not persuaded by any of these arguments because, even according plaintiff all favorable inferences, his allegations of discrimination prior to March 20, 2011 are time-barred, and his remaining allegations do not support any of his asserted causes of action.
Plaintiff's claims before November 1995 are also precluded by the suit he brought in November 1995 under the doctrine of res judicata and the entire controversy doctrine. See Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 606 (2015) (stating that "res judicata 'contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation.'") (quoting Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960)).
Our review of summary judgment orders is de novo, using the same standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We determine whether there are material facts in dispute and, if not, whether the facts, viewed in the light most favorable to the non-moving party, nonetheless entitle the moving party to judgment as a matter of law. Id. at 405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A. LAD
LAD has a two-year statute of limitations. Rodriguez v. Raymours Furniture Co., 225 N.J. 343, 362 (2016). The limitation period operates "to cut off a claim that is filed more than two years after the complained-of discriminatory act." Roa v. Roa, 200 N.J. 555, 566 (2010). "Generally stated, discrete acts of discrimination, such as termination or a punitive retaliatory act, are usually readily known when they occur and thus easily identified in respect of timing. Hence, their treatment for timeliness purpose is straightforward: '[a] discrete retaliatory discriminatory act occurs on the day that it happens.'" Alexander v. Seton Hall Univ., 204 N.J. 219, 228 (2010) (quoting Roa, supra, 200 N.J. at 567).
There is, however, an equitable exception to the statute of limitations for certain ongoing discrimination under the "continuing violation doctrine." Roa, supra, 200 N.J. at 566. "The doctrine provides that when an individual experiences a 'continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful act ceases.' The premise underlying the doctrine is that the conduct becomes actionable because of its 'continuous, cumulative, synergistic nature.'" Ibid. (quoting Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999)). Thus, "when the complained-of conduct constitutes 'a series of separate acts that collectively constitute one unlawful employment practice[,]' the entire claim may be timely if filed within two years of 'the date on which the last component act occurred.'" Alexander, supra, 204 N.J. at 229 (quoting Roa, supra, 200 N.J. at 567). Nevertheless, "[w]hat the doctrine does not permit is the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable." Roa, supra, 200 N.J. at 569.
We first address plaintiff's claim of disparate treatment. Plaintiff argues that the disparate treatment claims are grounded on "defendants' fail[ure] to give him actual police work and [plaintiff] never attain[ing] any rank within the department." To establish a prima facie case of discriminatory disparate treatment in the denial of promotions, plaintiff must prove:
(1) That [he or] she is a member of a class protected by the anti-discrimination law;The plaintiff must also prove that the disparate treatment was due to a discriminatory motive, using the burden shifting method applied in LAD cases. Id. at 331-32.
(2) That [he or] she was qualified for the position or rank sought;
(3) That [he or] she was denied promotion, reappointment, or tenure; and
(4) That others . . . with similar or lesser qualifications achieved the rank or position.
[Henry v. N.J. Dep't. of Human Servs., 204 N.J. 320, 331 (2010) (quoting Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 443 (1988)).]
Here, plaintiff has identified no disparate treatment that occurred during the two-year limitation period. His claims of discriminatory motive relate to the derogatory comments and slurs, which he identifies took place in the time periods between 1992 and 1995 and again in 2000. The alleged slurs were clearly unacceptable conduct, but they all happened well before the two-year statute of limitations expired. Plaintiff also claims that he was not promoted and there were other adverse employment actions taken against him in the time period that all pre-dated March 20, 2011. Thus, plaintiff's disparate treatment claims are time-barred.
Next, plaintiff contends that he was retaliated against. To establish a LAD claim for retaliation, a plaintiff must show that "(1) plaintiff was in a protected class; (2) plaintiff engaged in protective activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is a causal link between the protected activity and the adverse employment consequence." Victor v. State, 203 N.J. 383, 409 (2010). The plaintiff must also show "that he or she had a good faith, reasonable basis for complaining about the workplace behavior." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008). Finally, the plaintiff must show retaliatory intent using the burden shifting method. Royster v. N.J. State Police, 439 N.J. Super. 554, 575-76 (App. Div.), certif. granted, 223 N.J. 161 (2015).
In this case, the most recent protected activity for which plaintiff claims he was being retaliated against was his December 2010 letter in which he informed Chief Chase that he would pursue legal advice regarding the denial of his request for specific accommodations for Jewish holidays. He goes on to claim that the retaliation consisted of the issuing of a series of orders that affected his work in the fleet management department. Those orders were all issued in January, February and the first week of March, 2011. As a consequence, these claims are also time-barred because they all occurred before March 20, 2011.
We note, moreover, that even if these claims were not time-barred, plaintiff has not established a prima facie case of retaliation. In plaintiff's December 27, 2010 memorandum to Chase, he requested to use his vacation time for the Jewish holidays of Passover and Rosh Hashanah. According to the record, IPD requires each police officer to separate their vacation days into five segments. In his request, plaintiff asked that his religious holidays not count towards his five segment choices.
In the reply memorandum to plaintiff, Chase allowed plaintiff to use his vacation time towards the holidays. Plaintiff, however, was also told that he must use two of his five segment choices if he selected to take those holidays. Accordingly, defendants presented a legitimate, non-retaliatory explanation for the limited number of ways an officer could divide up the vacation days; that is, IPD must ensure adequate staffing at all times.
Thus, under the burden shifting analysis, defendants established a legitimate reason for denying his leave request and plaintiff has insufficient evidence to carry his burden that the actual reason was motivated by discriminatory intent. As a consequence, plaintiff's claims could not survive summary judgment, even if they were asserted within the limitation period. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005) (explaining that the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination).
The plaintiff also argues that he has stated a claim for a hostile work environment. To establish a prima facie case for a hostile work environment, a plaintiff must prove:
(1) that plaintiff is in a protected class;"In determining whether the conduct is 'severe or pervasive,' . . . 'it is the harassing conduct' that must be severe or pervasive, not its effect on the plaintiff or on the work environment." Cowher v. Carson and Roberts, 425 N.J. Super. 285, 293 (App. Div. 2012) (quoting Lehman v. Toys 'R' Us, Inc., 132 N.J. 587, 606 (1993)).
(2) that plaintiff was subjected to conduct that would not have occurred but for that protected status; and
(3) that it was severe or pervasive enough to alter the condition of employment.
[Victor, supra, 203 N.J. at 409.]
Here, plaintiff has identified events that took place over the twenty-four years of his career as a police officer. The alleged actions that pre-dated 2010 are all discrete and do not constitute ongoing and continuous discriminatory acts. The most recent act that plaintiff identifies is the alleged direction to use a penny to measure tire tread depth. That direction was contained in an order issued in February 2011, which is outside the statute of limitations period.
Even if the penny order is considered, defendants have explained that the use of a penny to measure tire depth is recommended by the tire manufacturer. Just as significantly, one incident would not constitute the type of severe or pervasive conduct that a reasonable person would consider as creating a hostile work environment. See Shepard v. Hunterdon Ctr., 174 N.J. 1, 24 (2002) (explaining that a reasonable person would have to believe that the conditions of employment have been altered and that the work environment is hostile).
Finally, we address plaintiff's allegations of constructive discharge. A claim of constructive discharge requires proof that the employer "knowingly permit[s] conditions of discrimination" that were "so intolerable that a reasonable person subject to them would resign." Shepard, supra, 174 N.J. at 27-28 (quoting Muench v. Township of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992)). The conduct must be so severe that it invokes a sense of outrage, coercion or unconscionability. Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001). "Simply put, a constructive discharge claim requires more egregious conduct than that sufficient for a hostile work environment claim." Shepard, supra, 174 N.J. at 28.
We have already analyzed plaintiff's claims and concluded that the allegations predating March 21, 2011 are not continuing and ongoing. Thus, plaintiff's constructive discharge claim depends on his allegation of being reassigned to parole duty effective March 21, 2011. Even when viewing the allegations in the light most favorable to plaintiff, plaintiff did not "do all that was reasonably necessary to remain employed." Shepard, supra, 174 N.J. at 29. Instead, plaintiff left his employment four hours after beginning his new assignment. His allegations concerning the fitness examination also do not rise to the level that could present a prima facie claim of constructive discharge. See Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 276 (App. Div. 1996) (explaining that "an employee has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit." (quoting T.L. v. Toys 'R' US, Inc., 255 N.J. Super. 616, 605 (App. Div.) (Skillman, J.A.D., concurring in part, dissenting in part), certif. denied, 130 N.J. 19, 611 (1992) (on plaintiff's appeal), and aff'd as modified sub nom., Lehmann, supra, 132 N.J. at 626 (1993) (on defendant's appeal))).
In summary, an evaluation of plaintiff's LAD claims establishes that the alleged incidents that took place prior to the two-year statute of limitations were discrete and were not continuing violations. Moreover, the alleged conduct that occurred within the two-year statute of limitations does not establish a prima facie case of any violation under the LAD.
B. The Claims of Violations of the Civil Rights Act
Plaintiff alleged in his amended complaint that his rights under N.J. Const. art. I, ¶ 1, 18, and 19 have been violated because he was denied the signature that is required on a permit that would allow him to carry a firearm in retirement. The trial court dismissed the CRA claim with prejudice against all defendants for failure to state a claim for which relief can be granted. See R. 4:6-2(e). On appeal, plaintiff raised two new arguments concerning his CRA claim. He contends that defendants discriminated against him because of his religious principles under N.J. Const. art. I, ¶ 5, by subjecting him to racial slurs and refusing to accommodate his religious holidays, and restraining his freedom of speech under N.J. Const. art. I, ¶ 6, by retaliating against him for his written complaint. Because neither argument was raised below, we will not address them. See Nieder v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973) (stating that we will not "consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'") (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)).
The trial court initially dismissed the CRA claim with prejudice against Oliveira only, permitting plaintiff to amend the defective pleadings against other defendants. Plaintiff, however, failed file such an amendment. Consequently, the trial court dismissed the CRA claim against all defendants. --------
In drafting pleadings, it is plaintiff's responsibility to plead facts on which the claim for relief is based. See R. 4:5-2. The trial court properly found that plaintiff failed to plead facts that shows he is entitled to relief under CRA. Specifically, the trial court found that while alleging defendants denied him the signature that is needed for a gun permit, plaintiff also stated that Chase signed the paperwork stating that plaintiff retired in good standing and was fit to carry a firearm as a retired police officer. As such, the CRA claim was properly dismissed.
C. The Breach of the Implied Covenant of Good Faith and Fair Dealing Claim
Defendant claims that plaintiffs breached the implied covenant of good faith and fair dealing because he was deprived of a regular assignment like other police officers and he was forced to resign because of the hostile work environment. "In the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing." Noye v. Hoffmann-La Roche Inc., 238 N.J. Super. 430, 434 (App. Div. 1990). Defendant was an at-will employee of IPD.
In defendant's amended complaint, he claims defendants subjected him to unfair treatments which was "contrary to defendant's rules and regulations, plaintiff's contracts of employment, and New Jersey policy." Plaintiff, however, failed to include any employment contract, rules and regulations pertaining to employment, or relevant New Jersey policy. Absent any showing of a contractual relationship, there can be no implied covenant of good faith and fair dealing.
Moreover, as we have previously stated, defendant failed to establish a viable constructive discharge claim and hostile work environment claim. As such, his resignation from IPD was voluntary. Further, prior to resigning, defendant was transferred back to a patrol unit. Defendant was not deprived of a regular assignment since patrol duty falls squarely within the typical assignment of a police officer. Thus, the trial court correctly dismissed the breach of implied covenant of good faith and fair dealing claim.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION