On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1763-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Chambers.
Plaintiff Paul J. Carr appeals from the order of February 16, 2007, granting summary judgment in favor of defendant Township of Stafford ("Stafford"). Plaintiff alleges that Stafford discriminated against him on the basis of his disability and his age in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to 49 ("the LAD"), when it failed to reappoint him as its municipal court judge. Plaintiff also has brought a breach of contract claim against Stafford for terminating his medical benefits while he was working as its municipal court judge.
Many of the facts are not in dispute. Plaintiff began his service as a municipal court judge in Stafford in 1984 to complete the unexpired term of another judge. He was thereafter appointed to several successive three-year terms through December 31, 2002. He was not reappointed for the term beginning January 1, 2003.
Plaintiff suffered serious medical problems in 1998 due to a motor vehicle accident. He was diagnosed with congestive heart failure and left-sided polyneuropathy, and these medical conditions form the basis of plaintiff's claim that he is disabled. Defendant was able to resume his duties as a municipal court judge in 1999. He indicates that he needed only two accommodations upon his return: transportation to and from the job (which his family provided), and a normal, and not accelerated, pace of courtroom business. He was reappointed to the municipal court judge position for the term from January 1, 2000, to December 31, 2002. In 2001, the municipality terminated medical coverage for all of its part-time employees, including plaintiff.
The municipality declined to reappoint plaintiff to the position of municipal court judge in January 2003, when his term expired, due to complaints it had received about his performance. Complaints against plaintiff were made by the Stafford municipal court administrator who contended he made mistakes. Plaintiff at his deposition explained that he believed the administrator felt a bitterness toward him because he had represented her husband in her divorce and because he refused to corroborate her discrimination claim against the police department. The municipal prosecutor testified at his deposition that plaintiff could not handle the work and that he was making mistakes, for example, marking dispositions on the wrong tickets. Plaintiff was replaced by a judge who was fifty-four years old. At the time, plaintiff was fifty-six years old.
After replacing plaintiff, Stafford continued its former practice of accepting the county wide list of municipal court conflicts judges. If a conflict arose, its municipal judge would chose someone from the list. Since plaintiff was on that list, he could be selected as a conflicts judge for Stafford.
Plaintiff brought this lawsuit contending that he was not reappointed due to his age and physical disability in violation of the LAD. Among the relief sought in the complaint was reinstatement, retroactive pay, and other damages. The trial court granted summary judgment in favor of Stafford and noted that the reappointment of a municipal court judge is entirely within the discretion of the municipality under N.J.S.A. 2B:12-4 (providing for the appointment of municipal judges), and does not constitute a discharge under the LAD. The trial judge also found that even if the LAD applied, plaintiff could not prove his claim. Plaintiff now appeals that decision.
When reviewing a decision on a motion for summary judgment, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In order for a motion for summary judgment to be granted, the movant must show "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When considering the motion, the court must give the non-moving party all of the legitimate favorable inferences that may be drawn from the evidence. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995). If, under those circumstances, a rational factfinder could find in favor of the non-movant, the motion must be denied. Ibid.
In pertinent part, the LAD prohibits an employer from discriminating based on disability or age when discharging an employee. N.J.S.A. 10:5-12(a). The LAD's definition of employer includes municipalities. See N.J.S.A. 10:5-5(e) (including as employers "all public officers, agencies, boards or bodies"). Plaintiff contends that he was an employee of Stafford and that its failure to reappoint him was equivalent to a discharge.*fn1
The trial judge found, and Stafford argues, that the LAD does not govern the appointment or reappointment of municipal court judges. Indeed, our review of the law reveals no case where the LAD has been applied to the appointment or reappointment of a judge. We suspect that this is due to the general assumption, as the trial judge stated, that the appointment of ...