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Hennessey v. Winslow Township

April 16, 2004

DONNA HENNESSEY, PLAINTIFF-APPELLANT,
v.
WINSLOW TOWNSHIP; RONALD NUNNENKAMP; ANTHONY BELLO; SUE ANN METZNER; GERALDINE GAFFNEY; BRIAN VALERIO; BARRY WRIGHT; TESS PINO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, CAM-L-4304-01.

Before Judges Cuff, Axelrad and Winkelstein.*fn1

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 17, 2004

Plaintiff, Donna Hennessey, appeals from the Law Division's May 9, 2003 summary judgment dismissing her complaint. Plaintiff claimed defendant Winslow Township and its employees violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), when they terminated her employment. She alleged she was discriminated against based upon her disability and her age, and was retaliated against, in violation of N.J.S.A. 34:15-39.1, for making a claim for workers' compensation benefits. Plaintiff has limited her argument on appeal to her disability discrimination claim.

The motion judge dismissed plaintiff's claim under principles of collateral estoppel. Because plaintiff had been provided with a hearing by the Township before she was terminated, in which the hearing officer determined that the Township and its employees did not fail to reasonably accommodate plaintiff's disability, the motion judge reasoned that plaintiff was collaterally estopped from relitigating that issue in her LAD claim. We disagree and reverse. We hold that issues decided at a hearing before the appointing authority have no preclusive effect upon the issues in a subsequent Superior Court LAD claim. Just as plaintiff would have been entitled to a decision based solely on the record before an Administrative Law Judge (ALJ) had she appealed to the Merit System Board the Township's decision to terminate her employment, plaintiff is similarly entitled to a decision on her LAD claim based solely on the record established in the Superior Court action.

The material facts are not in dispute. In July 1992, the Township hired plaintiff as a clerk/typist in the police records department. She continued in that position until July 28, 1998, when she went on disability leave after suffering a fall at work the previous day, injuring her left shoulder, neck, and back. As a result of her injuries, she ultimately underwent a cervical fusion by Dr. Lawrence Deutsch on April 2, 1999.

Under the terms of the contract between the Township and plaintiff's union, and pursuant to the controlling Township ordinance, plaintiff was permitted up to one year of disability leave. With her leave expiration date approaching, on June 30, 1999, defendant Brian Valerio, a captain in the Township police department, wrote a letter to plaintiff. He said her leave of absence would expire on July 28, 1999, and if she were unable to return to work by that date, she would"then receive the appropriate New Jersey Department of Personnel forms indicating intent to terminate you from employment with the Township...." In response to that letter, on July 20, 1999, eight days before her disability leave was to expire, plaintiff wrote the following letter to Captain Valerio:

Enclosed is the note from Lawrence S. Deutsch, M.D., releasing me to light duty with limited restrictions. I feel that these restrictions would not interfere with the primary functions of my duties as a Police Records Clerk.

Plaintiff sent a copy of her letter to defendant Ronald Nunnenkamp, the Township Administrator, and a copy to her union. The July 8, 1999 note from Dr. Deutsch, accompanying plaintiff's letter to Captain Valerio, said:"Work: no lifting greater than 5 lbs[,] no prolonged sitting or standing."

Dr. Deutsch apparently wrote that note after examining plaintiff. The results of that examination, which the doctor forwarded to both plaintiff and the workers' compensation managed care provider, were as follows:

DONNA HENNESSEY

July 8, 1999

Donna returns today. Her surgery is now 12 weeks ago. We have done flexion-extension with her and she has some tightness in the neck but no symptoms in the arms. She does state that when she does some typing she will ...


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