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Vitale v. Atlantic County Special Services School District

January 12, 2009

REGIS A. VITALE, PLAINTIFF-APPELLANT,
v.
ATLANTIC COUNTY SPECIAL SERVICES SCHOOL DISTRICT, DEFENDANT-RESPONDENT, AND ATLANTIC COUNTY SPECIAL SERVICES BOARD OF EDUCATION, RUSSELL V. GRECCO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, BARBARA J. MORVAY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, VIRGINIA M. BIRD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, AND RICHARD GISONDI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-493-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2008

Before Judges Cuff, Fisher and Baxter.

In this appeal, we consider whether partial summary judgment was appropriate when based solely on the motion judge's view that the dismissed claim was cumulative of the remaining claims and, also, whether the jury's findings on the remaining claims were dispositive of the issues raised in the dismissed claim, thus excusing any error in granting partial summary judgment. Because both questions must be answered in the negative, we are constrained to reverse.

I.

Plaintiff filed a complaint asserting he was terminated by defendant Atlantic County Special Services School District (the district) in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the Veterans' Tenure Act (VTA), N.J.S.A. 38:16-1 to -6. Plaintiff alleged he was employed by the district as a certified teacher for handicapped students from January 2001 until June 2003. At the end of the 2003 school year, plaintiff, a fifty-five year old military veteran, was advised he would not be retained because a shortfall in tuition and a downturn in student enrollment necessitated a reduction in force of four teachers. Following notice of his termination, plaintiff informally appeared before the school board, asserting his status as a veteran and his right to a hearing pursuant to the VTA. Plaintiff claims that this was not the hearing required by the VTA and that, in any event, the district lacked good cause for his termination.

All defendants moved for summary judgment. The motion was granted in favor of the individual defendants on the LAD claims and in favor of all defendants on the VTA claim, leaving for trial only plaintiff's LAD claim against the district. In granting summary judgment on the VTA claim, the motion judge concluded by way of a three-sentence oral decision*fn1 that dismissal was appropriate because the VTA "is not an act which gives any protection other than that already afforded by the [LAD]." Plaintiff's LAD claim went to trial before a different judge; the jury returned a verdict in favor of the district.

II.

Plaintiff appeals only the order that granted summary judgment in favor of the district on his VTA claim. We reverse because (a) the motion judge adopted an invalid basis for an award of summary judgment and the factual record precluded summary judgment on the VTA claim,*fn2 and (b) the result erroneously achieved by way of summary judgment cannot be rescued by the results of the later trial because the jury's findings on the LAD claim did not necessarily encompass a finding that would be fatal to the VTA claim.

A.

As we have observed, the motion judge granted summary judgment on the VTA claim because he found the remedies made available by the VTA to be no different from those made available by the LAD. This is not a valid basis for granting summary judgment. A litigant is entitled to pursue alternative theories in seeking relief. The existence of one theory of recovery does not necessarily bar pursuit of the same remedy under some other legal theory. We, thus, reject the motion judge's rationale for dismissing the VTA claim.

Of course, we may affirm a summary judgment for reasons other than those expressed by the trial court. See, e.g., Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008). However, in this case, there is no alternative basis upon which to sustain the summary judgment on the VTA claim. Instead, when examining the record through application of the Brill standard,*fn3 it is clear that the summary judgment motion on the VTA claim should have been denied.

The VTA precludes the termination of a military veteran from public employment "except for good cause shown after a fair and impartial hearing." N.J.S.A. 38:16-1; see also Maxwell v. Bd. of Comm'rs, 111 N.J.L. 181, 185 (Sup. Ct. 1933), aff'd, 113 N.J.L. 404 (E. & A. 1934). We have previously held that the right to the hearing required by the VTA is a property right entitled to due process procedural protection. Willis v. Dyer, 163 N.J. Super. 152, 162 (App. Div. 1978). Here, plaintiff claimed he was deprived of the fair and ...


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