Opinion
DOCKET NO. A-4173-13T4
03-07-2016
DENNIS HANEY, Plaintiff-Appellant, v. NEW JERSEY DIVISION OF STATE POLICE, JAMES CORBLEY, EDWARD BRICK and MARSHALL CRADOCK, Defendants-Respondents.
Rudie Weatherman argued the cause for appellant (Mr. Weatherman and William H. Buckman, on the briefs). Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Vannella, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1333-12. Rudie Weatherman argued the cause for appellant (Mr. Weatherman and William H. Buckman, on the briefs). Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Vannella, on the brief). PER CURIAM
Plaintiff Dennis Haney appeals from an order that granted summary judgment to defendants, New Jersey Division of State Police (NJSP), James Corbley, Edward Brick, and Marshall Cradock, dismissing his complaint, which alleged age discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliation in violation of the Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.
Plaintiff Dennis Haney began his employment with NJSP in February 1988. He was promoted to Detective Sergeant (DSG) in January 2008, and assigned to the Casino Services Unit (CSU) in July 2009. As his mandatory retirement date of December 1, 2011 approached, he evinced an interest in improving his ability to be promoted to the rank of Detective Sergeant First Class (DSFC).
I.
The allegations in his complaint can be summarized as follows: From July 2009 on, plaintiff regularly worked extended hours for which he did not receive overtime compensation, while younger detective sergeants were compensated for overtime. In July 2010, defendant Corbley, the Assistant Bureau Chief of the Casino Gaming Bureau, assigned plaintiff a project to be completed by August 4, 2010, "under the pretense that working on this project would provide Plaintiff with a greater chance for promotion." Younger employees eligible for a promotion were not given a special project to complete. Due to plaintiff's "overwhelming workload he was unable to complete the project by August 4, 2010." He advised his immediate supervisor, defendant Brick, of that fact. Corbley instructed Brick to make two negative entries in the Personnel Performance System regarding plaintiff's admitted failure to complete a task in a timely manner and, it is alleged, falsely stating he failed to advise his supervisor of that fact. Corbley purposely increased plaintiff's "already overwhelming workload so as to undermine Plaintiff's ability to" be promoted.
The complaint further alleges that, after plaintiff filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC) on October 30, 2010, defendants retaliated against him. He contends such retaliation took the form of "unjustifiably downgraded annual evaluations" and his transfer from Evidence and Property Control Officer of the Casino Gaming Bureau to the Undercover Investigative Unit. He alleges this transfer to a location forty-eight miles from his home was initiated by defendant Cradock "for no legitimate purpose."
Defendants filed an answer to the complaint and discovery began. The discovery period was extended twice, resulting in a period of approximately six hundred days, ending on December 14, 2013. The original trial date of January 21, 2014 was adjourned twice upon the joint request of plaintiff and defendants, resulting in a trial date of July 21, 2014.
II.
Defendants filed a motion for summary judgment in January 2014 that was returnable on February 28, 2014. In support of their motion, defendants filed a statement of material facts. The material facts are set forth in paragraphs 1 to 38 of the statement and are supported by references to the record that complied with the requirements of Rule 4:46-2(a).
The material facts set forth by defendants included the following:
The ratings plaintiff received in his Performance Evaluation Reports from February 1988 through September 2011 varied from "Satisfactory" to "Exceptional." His primary assignment from July 2009 through November 16, 2011 remained with the CSU, which consisted of a Lieutenant who served as the Unit Head; his assistant, a DSFC; an evidence control officer, a DSG; another detective; and three civilian employees.
In April 2010, plaintiff requested and participated in the first of three career development meetings with Brick and Lieutenant Thomas Burns regarding his promotional ranking and options for enhancing his ability to be promoted to DSFC. Plaintiff was advised he ranked twelfth out of sixteen eligible candidates in the Casino Gaming Bureau for promotion to DSFC. He was offered an "opportunity to showcase his knowledge and supervisory abilities to bureau members and command staff" by putting together "a short in-service training module." At another career development meeting, requested by plaintiff, in May 2010, plaintiff expressed concern that the fact he had only eighteen months left until his mandatory retirement would not allow him to advance in rank. Defendant Corbley and Captain Richard Lindsey discussed the ranking system with plaintiff as well as the "stalled promotional process" and the obstacles posed to plaintiff's advancement by the applicable limitations. Nonetheless, Corbley authored an email in May 2010, noting plaintiff's "attention to detail and genuine concern for doing a good and proper job is reflected in his daily work product."
At a third career development meeting in June 2010, plaintiff expressed his opinion that "his seniority, work ethics" and the limited time he had before retirement "would serve as enough justification to move him forward in the rankings." Although the "past and current dormant promotional process" was discussed, Cradock stated he would look into "an action plan" to "showcase" plaintiff's abilities to improve his chance at advancement and inquire about other promotional opportunities for him.
The "action plan" devised at Cradock's direction called for plaintiff to prepare the short in-service training module discussed in April. On July 1, 2010, plaintiff was told to prepare a Power Point presentation and submit it by August 2, 2010 so that he could begin giving the presentation to Casino Gaming Bureau members during the period from August 9, 2010 through September 30, 2010. In this way, Brick could document the development and delivery of the presentation in the quarterly evaluation for that period. Plaintiff was advised that his performance on this task was important and would be a factor to be considered during the next ranking period, but would not guarantee his advancement.
The Power Point presentation was "directly related to Plaintiff's regular job duties" because those duties included "educat[ing] people in the Bureau about reports, the common mistakes and how the mistakes could be reduced." As far as the technical aspects of completing the Power Point presentation, plaintiff had technical assistance available to him from Acting Lieutenant Sean Boero.
Plaintiff did not complete the Power Point presentation by the assigned deadline and, at first, could not provide a date when it would be completed. He first asked to have a completion date of September 30, but then asked to have the presentation scheduled for August 20. The importance of meeting deadlines and his failure to do so were noted in the personnel records.
The statement of material facts also addressed plaintiff's allegations regarding overtime and plaintiff's transfer. NJSP maintained standard operating procedures for overtime, promotions and personnel transfers.
NJSP's records show plaintiff received overtime compensation during both 2009 and 2010. Pursuant to NJSP procedures, overtime is not available for "simple administrative tasks."
NJSP policy states, "All members are subject to transfer as may be deemed necessary for the best interests of the [NJSP]." In early 2011, plaintiff was assigned to the Digital Technology Investigation Unit for a period of several weeks. During this assignment, he participated in a live wire/data intercept operation that led to several arrests and was "praised" in NJSP records.
As of August 13, 2011, plaintiff was given a "higher position" in the CSU, that of "Acting Detective Sergeant First Class," replacing the employee who had held that position.
Plaintiff filed his opposition on February 21, 2014. His response consisted of a four-paragraph affidavit in which he attested to the truth of the allegations in the complaint and incorporated same. His denial of the material facts asserted by defendants consisted of the following:
3. Accordingly, I contest Defendants' Statement of Material Facts in Support of their Motion for Summary Judgment, which relies on summaries of unrecorded, unsworn and unsigned witness statements - essentially hearsay, double hearsay and triple hearsay.
Accordingly, I dispute the notion that Defendants have established any facts, to any degree, relating to my claims brought pursuant to the New Jersey Law Against Discrimination and Conscientious Employee Protection Act.
4. Further, I dispute Defendants' contention, as outlined in their Statement of Materials [sic] Facts, Paragraphs 39-44, that the evidence in support of my claims is self-serving and speculative. I would note that Defendants have offered no evidence other than the unverified hearsay above to support any of their supposed facts.
On the same date, plaintiff filed a "cross-motion" on short notice to re-open discovery. This motion was filed fifty-eight days after the extended discovery period expired. The trial judge granted summary judgment and denied plaintiff's motion to re-open discovery.
III.
In his appeal, plaintiff argues the trial court erred because (1) there were significant factual disputes in the record; (2) defendants' factual assertions were not supported by competent evidence; (3) discovery on material issues was incomplete; (4) the trial court abused its discretion in denying plaintiff's "cross-motion" to reopen discovery; and (5) the trial court abused its discretion in accepting defendants' untimely motion for summary judgment. After reviewing these arguments in light of the record and applicable principles of law, we find no merit to any of them.
Rule 4:46-2 governs the requirements for both the movant and the opponent in a summary judgment motion, as well as the applicable standard to determine whether the motion should be granted. The movant must serve a statement of material facts that
shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on.
[R. 4:46-2(a).]
As we have noted, defendants' statement of material facts complied with these requirements.
Rule 4:46-2(b) establishes the requirements for opposition to the motion:
A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.
[Emphasis added.]
As is evident, plaintiff failed to "specifically dispute[]" the statements of fact set forth by defendants, let alone provide the required references to the record to show the existence of a genuine issue of fact. His opposition relied exclusively upon the conclusory statements in his affidavit.
A party does not create a genuine issue of fact simply by offering a sworn statement. Carroll v. N.J. Transit, 366 N.J. Super. 380, 388 (App. Div. 2004). "'[C]onclusory and self-serving assertions' in certifications without explanatory or supporting facts will not defeat a meritorious motion for summary judgment." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-426 (App. Div. 2009); accord Brae Asset Fund, L.P. v. Newman, 32 7 N.J. Super. 129, 134 (App. Div. 1999).
What is required of the party opposing summary judgment is affirmative evidence that is competent, credible and shows that there is a genuine issue for trial. "Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman, supra, 404 N.J. Super. at 425-426), certif. denied, 220 N.J. 269 (2015). Summary judgment will not be precluded by "[b]are conclusory assertions" lacking factual support, Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div.), certif. denied and appeal dismissed, 211 N.J. 608 (2012), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 547 (App. Div.) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)), certif. denied, 221 N.J. 567 (2015).
In light of plaintiff's failure to present competent opposition to defendants' motion for summary judgment, the facts asserted in defendants' statement of material facts are deemed admitted. R. 4:46-2(b). Reviewing those facts de novo, Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015); R. 4:46-2(c), and even giving plaintiff the benefit of all favorable inferences, Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014), they are clearly insufficient to support a prima facie case of either age discrimination, see Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 443 (1988); Greenberg v. Camden Cnty. Vocational & Tech. Schs., 310 N.J. Super. 189, 198 (App. Div. 1998), or retaliation, see Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). We therefore conclude that summary judgment was properly granted to defendants.
IV.
Plaintiff's remaining arguments regarding the timing of the summary judgment motion and the denial of his request to reopen discovery lack sufficient merit to warrant discussion, R. 2:11-3(e)(1)(E). We briefly address his argument that the court erred in denying his "cross-motion" to reopen discovery.
First, this application, filed on the same day as plaintiff's opposition to the summary judgment motion was not a proper cross-motion. In a civil matter, a cross-motion may be filed "only if it relates to the subject matter of the original motion." R. 1:6-3(b). This motion did not do so.
Second, the motion was made well after the discovery period had ended and after a trial date had been scheduled. As plaintiff concedes, he was required to show exceptional circumstances to warrant such relief. See R. 4:24-1(c). He contends such circumstances existed here because both parties had sought further extensions of the discovery period. This contention is insufficient as a showing of exceptional circumstances. See O'Donnell v. Ahmed, 363 N.J. Super. 44, 51-52 (Law Div. 2003).
Defendants dispute plaintiff's characterization and state that plaintiff sought to extend the discovery period solely because he wanted additional discovery.
Third, although plaintiff argues that his motion should have been granted "[g]iven the importance of the discovery materials sought," he has not identified what those materials are or how the discovery sought would create a genuine issue of fact that would preclude summary judgment.
Plaintiff concedes that he should have sought to compel these materials and did not do so. --------
Therefore, we discern no abuse of discretion in the denial of plaintiff's request to reopen discovery.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION