On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Approved for Publication October 24, 1996.
Before Judges Petrella, Wallace and Kimmelman.
This is an action for wrongful discharge brought by Ellen Melick and Kimberly Schiereck, respectively, the former municipal court clerk and deputy court clerk for the Township of Oxford. Plaintiffs alleged that defendants, Township of Oxford and Donald Niece, the Mayor, fired them for reporting their concerns about poor air quality in the Oxford Municipal building where they worked and claimed that defendants' actions violated their rights under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Defendants denied plaintiffs' allegations and asserted defenses under the provisions of the Tort Claims Act, N.J.S.A. 59:9-4 to 59:9-7, as well as other defenses. Defendants' motion for summary judgment was granted. Plaintiffs appeal from that judgment. We now affirm.
The essential facts as developed in discovery are as follows. Melick began working for Oxford in 1986 and became the Court Administrator for Oxford in April 1988. Schiereck began working as Deputy Court Clerk for Oxford in May 1990.
The Oxford municipal building is over 100 years old. The bottom floor consists of a municipal garage, and the upper floor contains municipal offices and a meeting room where court is held. In 1989, Michael Spillane, a professional engineer, inspected the municipal building. He noted certain deficiencies in the building and cautioned against "large meetings in the building or significant floor loads added to the building." Spillane advised that in the near future, Oxford would have to build a new building or make renovations.
Melick was aware of odors in the building. By October 1992, she believed the odors were a serious problem. When trucks entered the garage, she would become dizzy. Melick complained to Katherine Becker, the municipal clerk. Melick had two blood tests performed, which showed elevated levels of carbon monoxide. She filed a formal complaint with Public Employees Occupational Safety and Health Administration (PEOSHA) on November 23, 1992. PEOSHA investigated the complaint and inspected the building on December 16, 1992.
On December 18, 1992, Mayor Niece wrote the State Department of Health a letter stating Oxford's initial response to Melick's complaint. The letter included the following:
1. The Public Works Director has been directed to provide improved ventilation at both ends of the building with a view toward containing any fumes generated in the first floor area.
2. The Public Works Director has been directed to secure and seal all visible openings between floors to eliminate to the extent possible air passage between the two floors.
3. The Public Works Director has further been directed to eliminate the idling of engines in the garage area to the extent practical.
On January 13, 1993, a PEOSHA official sent a copy of an inspection report to Mayor Niece, which noted that adverse health effects from carbon monoxide in the second-floor offices were possible. The report recommended that the motorized equipment be kept outdoors at all times and that the public works department "continue its new policy of working outdoors when they are performing activities that generate contaminants."
On January 29, 1993, the State Department of Community Affairs wrote to Mayor Niece about the "possibility of a collapse of any one of the [structural] members should the building ever become overloaded with large numbers of people ... during a public meeting." The letter included a "Notice of Unsafe Structure," which prevented public meetings but allowed the municipality to conduct normal business activities in the municipal building. As a consequence, Oxford had to locate other space for public meetings and the court.
Melick was diagnosed with grand mal seizures (epilepsy) after she had ten seizures in an hour on September 16, 1992. In February 1993, she took a disability leave of absence. She was taking an experimental anticonvulsant, which dulled her intellect and left her barely able to function.
Schiereck stated that in March 1993 Melick asked Mayor Niece for permission to do some of her work at home, which an Administrative Office of the Courts (AOC) official had told her was acceptable. Schiereck offered to drive Melick between home and the office and to perform for Melick certain tasks that had to ...