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Brennan v. State

July 24, 2009

RAYMOND BRENNAN, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY; DEPARTMENT OF HUMAN SERVICES OF THE STATE OF NEW JERSEY; GWENDOLYN HARRIS, INDIVIDUALLY; ARBURTA JONES, INDIVIDUALLY; KEVIN RYAN, INDIVIDUALLY; ALMA JOSEPH, INDIVIDUALLY; BARBARA ALLEN, INDIVIDUALLY; JANET GILLIAM, INDIVIDUALLY; JAMES DAVY, COMMISSIONER OF THE DEPARTMENT OF HUMAN SERVICES OF THE STATE OF NEW JERSEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; STATE EMPLOYEES WHO BREACHED THEIR DUTIES BY FURTHERING OR COVERING UP THE DISCRIMINATION AGAINST PLAINTIFF; AND OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, IN ITS OFFICIAL CAPACITY ONLY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1732-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2009

Before Judges Axelrad, Parrillo and Messano.

Plaintiff Raymond Brennan appeals from the summary judgment dismissal of his complaint against defendants, the State of New Jersey; Department of Human Services (DHS); DHS employees or former employees, Gwendolyn Harris, Arburta Jones, Kevin Ryan, Alma Joseph, Barbara Allen, Janet Gilliam, and James Davy; and the Office of the Attorney General (the OAG). Plaintiff, who was born in 1926 and has served as Chief of the Human Services Police (HSP) since 1985, alleged defendants discriminated against him because of his age in violation of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49; created a hostile work environment in violation of the LAD; and retaliated against him because he engaged in protected activities under the LAD. He also alleged causes of action for constitutional violations; equitable fraud; unjust enrichment; fraud; tortious interference with contractual benefits; intentional and reckless infliction of emotional distress; "prima facie tort"; and civil conspiracy. As to the OAG, plaintiff sought injunctive relief "directing [it] to cause defendants to cease their discriminatory and retaliatory actions[.]"*fn1

The motion judge found that 1) plaintiff's discrete age discrimination and hostile work environment claims were barred by the statute of limitations; 2) plaintiff failed to demonstrate a prima facie case for retaliation because he could not prove he had engaged in LAD-protected activity; and 3) plaintiff's failure to file notice under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3, required dismissal of the intentional tort claims. The judge also summarily dismissed the remaining counts of the complaint.

On appeal, plaintiff raises the following issues for review:

I. THIS COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT, WHICH WAS PREMISED UPON CLEAR ERRORS OF LAW.

II. THE TRIAL COURT COMMITTED MATERIAL LEGAL ERROR IN CONCLUDING THAT THE FILING OF THE COMPLAINT ON JUNE 30, 2005 WAS TOO LATE, WHERE THE LAST ACT OF THE CONTINUING LAD VIOLATION OCCURRED NO EARLIER THAN JUNE 30, 2003.

III. THE TRIAL COURT MISAPPLIED VELEZ'S PROSPECTIVITY MANDATE; THE "NOTICE" OBLIGATION DOES NOT APPLY TO THE PRE-VELEZ INTENTIONAL TORT CLAIMS ASSERTED HERE.*fn2

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

After thirty years, plaintiff retired from the New Jersey State Police, having achieved the rank of Lieutenant Colonel. From the date he was hired at DHS until 2001, plaintiff had an exemplary record without any complaints having been made about his conduct or job performance. In November 2001, an anonymous letter was circulated at DHS describing plaintiff and another employee, Lieutenant Armbrecht, as old and frail. In early 2002, following the inauguration of a new governor, Harris was appointed commissioner of DHS, Ryan was appointed her Chief of Staff, and Jones was appointed assistant commissioner, supervising the HSP and reporting to Ryan. Jones in turn appointed Vincent Giampietro as deputy director of Program Compliance and Public Safety, essentially the civilian supervisor of the HSP, and plaintiff's immediate supervisor. Plaintiff believed Giampetro was hired "in order to give [him] some difficulty in running the [HSP], to embarrass [him]." In connection with this litigation, Giampietro certified that in February or March of 2002, Ryan and Jones told him that the most significant reason for his hiring was because "the Chief may not still be able to manage the duties of the HSP[.]"

On May 16, 2002, plaintiff heard a commotion in an adjacent office. Giampetro and Armbrecht were in the office, and plaintiff heard an exchange of vulgar language, but no racial epithets. Brenda McDuffie, an African-American employee, complained that she overheard Giampietro use the word "nigger." McDuffie's complaint was reported to the DHS' Equal Employment Office (EEO) by Donna Pincavage, one of plaintiff's fellow employees.

Two weeks later, EEO investigator John Zajac interviewed plaintiff and requested he submit a written report on what plaintiff has coined the "McDuffie Incident." During this interview, plaintiff told Zajac, "You got the wrong guy to turn [] Giampietro in. I'm not going out as a CEPA employee." Zajac concluded, based upon interviews of all involved, that plaintiff had walked into the office either before or during the time when Giampietro made the derogatory remark, and plaintiff failed to report the incident, thereby ...


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