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Glavan v. City of Irvington

July 25, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6270-02.

Per curiam.


Submitted January 30, 2008

Before Judges Axelrad, Payne and Messano.

Plaintiff Maria Glavan appeals from two orders, the first, filed August 25, 2006, 1) dismissed with prejudice her claims brought pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; 2) dismissed with prejudice her claims brought pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and 3) dismissed with prejudice her claims against defendants Township of Irvington (Irvington), Earl Haugabrook, Elvis Gooden, and Sara Bost.*fn1 The second order under review, dated October 3, 2006, but filed on November 3, 2006, once again dismissed plaintiff's complaint with prejudice as to Irvington and dismissed her complaint as to defendant Wayne Smith. We have considered the legal arguments plaintiff has raised in light of the record and applicable legal standards. We affirm the majority of the orders under review; however, since we cannot discern the motion judge's reason for dismissing plaintiff's contractual compensation claims, we reverse the orders solely as to defendant Irvington, and remand for further proceedings consistent with this opinion.


Our review is made more difficult because of the numerous violations of Rule 2:6-2(a)(4) contained in plaintiff's brief. Despite the Rule's requirements that the brief contain "[a] concise statement of the facts material to the issues on appeal supported by references to the appendix and transcript," plaintiff's brief frequently asserts facts without any reference whatsoever to documents in the record. Plaintiff's appendix violates Rule 2:6-1(a)(1) because it does not include "all items submitted to the [motion] court on the summary judgment motion," instead submitting briefs the parties filed with that court in direct violation of Rule 2:6-1(a)(2). We therefore have attempted to glean the material facts from the transcripts of the numerous motion hearings and from the allegations contained in plaintiff's multiple pleadings.

Plaintiff is a white female who was appointed municipal tax collector for Irvington effective March 20, 2000. The author of her appointment letter was defendant Gooden, then Director of Revenue and Finance and Chief Financial Officer for Irvington. Pursuant to N.J.S.A. 40A:9-142, plaintiff's term was for a period of four years, commencing the first day of the year following her appointment. Thus, her statutory term was to end December 31, 2004.

In her complaint, plaintiff alleged she was additionally assigned the duties of "supervisor of sewer user charges," a position routinely occupied by the tax collector, and she alleged that Gooden promised she would receive additional compensation for the position, but she did not. Plaintiff also alleged that defendant James Gibbs, the former tax collector, approached her in September 2000 to purchase tickets for the mayoral ball held for Bost, who was then mayor of Irvington. Although plaintiff objected, she eventually purchased tickets to the event from the defendant Arlene Taylor, the ball's chairperson. After she made the purchase, plaintiff contended that Haugabrook, then Irvington's Business Administrator, promised to discuss with Bost the additional compensation plaintiff was promised.

Plaintiff contended that she immediately experienced problems in the operation of the tax collector's office. It was understaffed and she claimed a lack of support from Haugabrook. In May 2001, Julie Gambert, Irvington's Payroll Supervisor and Keeper of Records, notified plaintiff that due to the municipality's budgetary constraints, there would be no payments for overtime without pre-approval. In August of 2001, Haugabrook notified plaintiff by letter that the Tax Office personnel would no longer receive compensatory time or overtime without his prior approval. In June of 2002, plaintiff was advised a third time that no compensatory time or overtime would be paid without prior approval from Haugabrook or from Tim Roberts, then Irvington's Chief Financial Officer.

In September 2001, plaintiff alleged that Gibbs again approached her regarding the purchase of an advertisement in the mayoral ball's journal. She refused, and plaintiff contended that the city's new business administrator, Mitchell Silver, advised her and others that no political activity was permitted within the tax collector's office, or by plaintiff. Plaintiff alleged that she thereafter was subjected to a pattern of criticism and harassing conduct by members of her staff and other municipal employees.

In her initial complaint, filed July 3, 2002, plaintiff named Irvington, Gooden, Bost, Haugabrook, Gibbs, Tyler, Irvington's City Council (the City Council), and other fictitious parties as defendants. She claimed defendants violated CEPA, the LAD, her constitutional rights, negligently and intentionally inflicted emotional distress upon her, and breached the implied covenant of good faith and fair dealing in her employment contract.

In early 2004, defendants moved for summary judgment seeking dismissal of the complaint. We have not been provided with the order that resulted, if indeed one was entered, and plaintiff has not appealed from it. We gather from the transcript of the proceedings that the motion judge dismissed with prejudice plaintiff's claims against Tyler and Gibbs finding they were not plaintiff's supervisors and therefore not legally liable. Furthermore, plaintiff acknowledged that she had failed to file any notice required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, and the judge granted defendants' motion for summary judgment on all other "common law tort claims." The judge reserved all remaining motions for summary judgment as to plaintiff's CEPA and LAD claims for future consideration.

Although it is not entirely clear from the record, at some point defendants apparently continued to file dispositive motions seeking dismissal of plaintiff's remaining claims and plaintiff moved for reconsideration and to file an amended complaint. On December 3, 2004, a second judge entered an order that: 1) permitted plaintiff to file an amended complaint; 2) dismissed plaintiff's common law tort claims and constitutional claims, based upon the rationale expressed by the first judge; 3) denied plaintiff's motion for reconsideration of that earlier ruling; 4) dismissed any claim plaintiff had for failure to receive additional compensation for her position as supervisor of sewer user charges, finding plaintiff had been compensated; 5) consolidated any miscellaneous factual allegations plaintiff had made into either her LAD claim or her CEPA claim; 6) dismissed plaintiff's ...

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