On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-10946-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
In this appeal, after closely examining plaintiff's factual allegations in the light most favorable to plaintiff, we conclude that the trial judge properly granted summary judgment dismissing plaintiff's statutory claims against her employer and the other named defendants.
Plaintiff, a corrections officer, commenced this action on December 15, 2005, alleging violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, and the Federal Family and Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601 to 2654, as well as violations of the due process rights guaranteed by the federal and state constitutions. Judge Louis R. Meloni granted summary judgment in favor of defendants.
Plaintiff has appealed from that final order, arguing that her statutory claims should have survived summary judgment. We find insufficient merit in plaintiff's arguments regarding the claims based on CEPA, FMLA, the Civil Service Act and federal and state due process principles to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We also find no merit in plaintiff's arguments concerning her LAD claim for the following reasons.
In reviewing the order in question, we apply the familiar standards that apply when the summary judgment procedure is invoked. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, 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. The court must not decide issues of fact; it must only determine whether material factual issues exist. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-5. Applying the same standard utilized in the trial court, in reviewing a summary judgment we consider whether there is a genuine issue of material fact and, if not, whether the trial court's ruling on the law was correct. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
The record, viewed in the light most favorable to plaintiff, reveals that she was a sergeant with the Department of Corrections (DOC), assigned to South Woods State Prison. At the time this action was commenced, plaintiff had been employed by the State for twenty-three years. She retired in 2007, after this suit was commenced.
As a "custody staff member," plaintiff was required to wear an authorized protective vest. This regulation was established after a corrections officer was fatally stabbed by an inmate in 1997. A DOC regulation declared that "[s]hould it be determined that a custody staff member has reported to work without his/her undergarment protective vest, the custody staff member shall be relieved from duty immediately and placed into no pay status," and "shall be subject to disciplinary action."
The DOC contracts with private manufacturers to supply protective vests. Between 1997 and 2007, plaintiff, who described herself as overweight, was fitted at least eighteen times by at least three different distributors. As part of a "vest sampling" committee, she was fitted for and provided with three additional vests during a forty-five day period in 2001. Plaintiff asserted that none of those vests fit properly, and, as a result, did not wear a vest at work.
After a vest inspection in August 2005, plaintiff was called to the office of Captain Chance, who "offered [plaintiff] an ultimatum" -- plaintiff would have to wear a vest "or go home and sit and not get paid, and disciplinary insubordination and disciplinary charges would be forthcoming." For the rest of the day, plaintiff wore one of the vests provided by Captain Chance at that time and was later sent to a vendor for yet another fitting. She wore the loaner vest for a few more days then complained it was causing her pain.
In November 2005 plaintiff was re-fitted again, but claimed this vest was also uncomfortable. On November 16 and 17, 2005 plaintiff refused to wear a vest at work and was sent home on no-pay status. She returned to work a few days later wearing a loaner vest, and was subsequently provided with a vest referred to as "the GI Jane vest."*fn1
On January 5, 2006, plaintiff submitted a note from a physician advising that she should not wear the standard protective vest issued to all employees; the note stated that plaintiff "should wear a form fitted, female vest that doesn't weigh more than 3 lbs -- this is medically necessary." The DOC sent the doctor a letter informing him that they had a vest weighing approximately eight pounds and in four weeks they should ...