On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3357-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2009
Before Judges Carchman and Lihotz.
Plaintiff Michael Stoecker appeals from an order of summary judgment entered after the close of discovery and the dismissal of his complaint alleging his employer, North Hudson Regional Fire & Rescue (defendant or Department) and its then-Deputy Chief, Brian McEldowney, violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff argues the motion judge's findings were flawed and maintains summary judgment was inappropriate, as the record presents genuine issues of material fact. Following our consideration of the arguments on appeal, in light of the record and applicable law, we affirm.
The facts are derived from evidence submitted by the parties in support of and in opposition to the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). The chronology of events discussed below is relied upon by plaintiff to support his claims.
Plaintiff was hired by defendant as a firefighter and assigned to Engine 12, Battalion 3, under the command of Captain James Stelman and directly supervised by Battalion Chief Charles Severino. On May 9, 2001, plaintiff's first day of active service, Severino allegedly said, "How would you like to be my driver and when I ask you to blow me, you do it[?]" "Moments later" plaintiff saw Severino touch Firefighter Dean Manion's "groin and then rub his genitals against [Manion's] buttocks...." Afterwards, Manion approached plaintiff and stated Severino "like[d plaintiff] because he likes big guys." Plaintiff "very loudly" said to Manion that "if anyone touched [him, he] would break that old man-nobody touches me." Plaintiff claims that "Stelman was present throughout [the events] and witnessed everything, and [he] could not have missed hearing" plaintiff's statements.
On May 29, 2001, while at work, plaintiff suffered a calf injury. Plaintiff was examined by a doctor, who cleared him to return to duty. Plaintiff objected and the doctor stated: "You are not getting a free day off[,] you're going back to work." Plaintiff believes he was forced to return to work, although injured, because the physician and a safety officer "discussed [him and his] condition... outside of [his] presence" prior to his examination. Plaintiff supports his assertion by pointing to a June 2001 progress report authored by Severino, which said: "[a]t no time did [plaintiff] appear to be injured while at the incident."
Plaintiff returned to work and Stelman ordered him to engage in training, which "no other member of the company was required to perform," aggravating his "excruciating pain." The injury worsened, and plaintiff was diagnosed with a torn calf muscle, necessitating a one-month disability leave.
Thereafter, Stelman issued plaintiff's one-month performance evaluation. The report noted plaintiff was provided training in a variety of areas, including the Fire Department's rules and regulations; "Initial Scene Assignments"; "Apparatus Familiarity"; and "Pump Operations." Stelman reported plaintiff was "NOT [p]roficient in any area at this time" and noted plaintiff shows very little [i]nitiative in most aspects of the job. I realize most things are new to him, and he has only been on the shift a short time. He needs close supervision and needs to be reminded of tasks. During drills and training, [he] seems to drift away and tends to change the subject. [Plaintiff] has shown a lack of [i]nitiative and team work in the firehouse.... It is my hope that with further training [plaintiff] will have a better understanding of the job.
In his certification opposing summary judgment, plaintiff stresses the report was "completely untrue," he never received the training listed on the report, and he "do[es] not believe other rookie firefighters were evaluated after just a month."
When plaintiff returned from disability leave, he avers he "was repeatedly and relentlessly harassed by Stelman in the form of a hostile work environment" and "continued to witness Severino making homosexual references and overt contact with subordinates." These statements stand unaccompanied by specific examples.
McEldowney conducted a counseling session attended by plaintiff, Severino and another company officer to aid plaintiff's job proficiency. McEldowney created a plan to "assist [plaintiff] in improving his skills, knowledge, and abilities" as a firefighter. Plaintiff's company officer was to file a progress report every four days to "outline activities performed and skills learned." Plaintiff was given sixty days to reach "a skill level... similar to other probationary firefighters of his tenure."
Under the direction of Captain James Bender, plaintiff showed improvement. Bender testified plaintiff confided in him and talked about his personal problems. Bender assumed the role of plaintiff's mentor, explaining the inappropriateness of his actions rather than reporting them as violations of the Department's rules and regulations. During this time, plaintiff never expressed his feelings of harassment or retaliation and did not raise questions regarding Severino's alleged conduct.
In an August 17, 2001 progress report, Bender stated, "[plaintiff] continues to show steady improvement in his overall performance, namely work habits and attitude. He no longer has to be reminded on a day[-]to[-]day basis about housework and daily maintenance schedules." A report issued the following month stated, plaintiff "continues to show slow, yet steady improvement in several areas" and reached proficiency "in the area of 'Initial Scene Assignments.'" Also, Bender noted plaintiff's "weakness is that he occasionally has to be reminded to be less opinionated regarding non-job related issues" and "had a lot of trouble with authority. He could not grasp the concept of the position" held by superiors, which needed to be respected, even if he disliked the individual.
Later that month, Severino reported plaintiff was "proficient in all areas of Engine Company operations" and that "[h]e has not been tested as a pump operator under actual fire conditions due to no fault of his own." Severino's evaluation concluded
[Plaintiff] has progressed since coming off extended injury leave and shows an interest in learning, however, he needs extra time to grasp new things. I have spoken to him on more than one occasion for being late although he believed he wasn't, and for wearing a jacket that was not department issue.
He tries his best at everything he is told to do and appears to be genuinely interested in the fire service.
On May 28, 2002, plaintiff was issued another verbal reprimand for disobeying Severino's order to produce his "class A uniform." When asked why he did not have his uniform, plaintiff presented an eight-month-old receipt, suggesting he simply neglected to pick it up from the tailor's.
On July 15, 2002, plaintiff became involved in a verbal altercation with Company Officer Thomas Teta, Jr., who found plaintiff sitting at the Captain's desk. Teta told plaintiff to move and commence his firehouse chores. Plaintiff reacted by cursing and screaming. Teta reported plaintiff was "insubordinate, disrespectful," and refused to follow "a direct order." Plaintiff's version of the incident differed. Plaintiff stated Teta, without provocation, verbally abused him, called him a liar, and lied in his statement of the incident. Acting Deputy Chief Dav[id] Curtis interjected, "I know [Teta], I don't know you. Whatever [Teta] says is good." Plaintiff also claims he reported his version of the events "complain[ing] about retaliatory treatment," but the report was not in his employee file.
Curtis reported the incident to Chief Flood stating plaintiff exhibited "uncontrolled rage" and "expressed complete disregard for rank and the procedures of the fire department." As a result, plaintiff was moved to Engine 13. Following his review, Flood "determined that there was reasonable individualized suspicion that [plaintiff] was using controlled dangerous substances" and "ordered [him] to undergo a medical evaluation and drug testing." Plaintiff declined the request for a blood sample. As a result of his refusal to obey an order, he was suspended. Flood repeated his order for drug testing every day between July 15 and 25, 2002; each time plaintiff refused. On July 25, 2002, plaintiff was issued a Preliminary Notice of Disciplinary Action (PNDA), pursuant to N.J.A.C. 4A:2-2.5(a)(1).
Plaintiff sought review by the New Jersey Department of Personnel (NJDOP). The matter was settled prior to a hearing: plaintiff agreed to submit to a drug test, and defendant agreed to reinstate him if the test was negative. Plaintiff was reinstated on August 15, 2002, nevertheless, he demanded a hearing before the NJDOP because the settlement "in no way resolved the violation of [his] rights." The NJDOP concluded [plaintiff]'s failure to comply with an order to submit to a medical evaluation to demonstrate his fitness for duty and a drug test to demonstrate that he is not a danger to himself and others if permitted to remain on duty warranted an immediate suspension until such time as [plaintiff] underwent these procedures. Thus, it is clear from the record in the instant matter that the petitioner's immediate suspension was proper and imposed in accordance with merit system laws and regulations.*fn2
Thereafter, plaintiff requested a transfer. McEldowney counseled him and initially denied his request but later reassigned plaintiff to Battalion 3, Engine 12, under the command of Severino and Stelman. Stelman's January 31, 2003 progress report again noted, "although [plaintiff] has improved a little in the last year and a half, not much has changed. At times, [he] still tends to drift away during training." Describing plaintiff as "lazy" and "lack[ing in] initiative" Stelman listed specific examples of deficits in plaintiff's performance.*fn3 Stelman observed "recruits just out of the academy... are outpacing [plaintiff] in his abilities." Stelman concluded plaintiff might benefit "if transferred to another Battalion and possibl[y] another Platoon, and placed in a double Company house under the watchful eyes of two Company Officers and several seasoned firefighters" to "give him a new start and the incentive to really get on track."
McEldowney reviewed Stelman's report. He conducted another counseling session with plaintiff, attended by Stelman, Severino, Curtis, and a union representative. McEldowney implemented another plan designed to improve plaintiff's performance, which included "'test[ing]' in various basic skills" without prior notice by his company officer or battalion chief "in order to determine any areas requiring additional effort" and being "placed into the probationary firefighter training program."
Plaintiff requested a transfer "off the 4th platoon and out of engine 12" due to "personality differences" with Stelman that were "causing tension in the [fire]house." On that same day, McEldowney forwarded plaintiff's transfer request to Chief Flood, noting it was plaintiff's "second request for a transfer, again citing personality problems." Plaintiff was subsequently ...