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Hires v. City of Atlantic City

June 1, 2010

WALTER HIRES, PLAINTIFF-APPELLANT,
v.
CITY OF ATLANTIC CITY, CITY OF ATLANTIC CITY POLICE DEPARTMENT, DEPUTY CHIEF MICHAEL ERSKINE, DEFENDANTS-RESPONDENTS, AND POLICE CHIEF ARTHUR SNELLBAKER, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2237-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2009

Before Judges Gilroy and Simonelli.

In this employment discrimination case, plaintiff Walter Hires appeals from the September 12, 2008 Law Division order denying his motion for reconsideration of the July 7, 2008 order granting defendants' summary judgment motion. We affirm.

In October 1992, plaintiff began his employment as a police officer with defendant City of Atlantic City Police Department (ACPD). From October 1994 to April 1999, plaintiff was assigned to the ACPD Forensic Unit. In April 1999, after requesting a transfer, plaintiff was assigned to the Atlantic County Major Crimes Unit (MCU). Plaintiff knew prior to the transfer that the MCU's forensic investigations were of greater intensity than the ACPD's Forensic Unit and that he would be on-call. Lieutenant Wellman and Sergeant DeShields of the Atlantic County Prosecutor's Office, and Sergeant Roff from the ACPD were plaintiff's direct supervisors after the transfer.

After working in the MCU for fifteen months, in July 2000, plaintiff informed Captain Robert Flipping of the ACPD that being on-call was affecting his health and family, and that he may want a transfer from the MCU. Plaintiff did not actually request a transfer or seek Capt. Flipping's assistance in obtaining a transfer.

There is no evidence that plaintiff told Capt. Flipping about any job-related stress or psychological issues. Also, only the Chief of Police could approve a transfer, which had to be made in writing on the appropriate form and submitted to the appropriate supervisor. Plaintiff did not submit a transfer form, and he never advised any of his direct supervisors that he wanted a transfer.

Sergeant James Scoppa, head of the Forensic Unit, was plaintiff's supervisor when plaintiff worked in that Unit. He was not plaintiff's supervisor or in plaintiff's direct chain of command in December 2000, when plaintiff told him that the on-call schedule and stress from working in the MCU was "tearing [him] and [his] family apart[,]" and that he was having "physical reactions," such as an ulcer, acid reflux and asthma attacks. Plaintiff also told Sgt. Scoppa that he wanted to transfer to the Booking and Detention Unit. Sgt. Scoppa offered to assist plaintiff with a transfer but it would be back to the Forensic Unit. Plaintiff declined because he "was thinking about giving up forensics for a while[,]" and he "needed a break from forensics."

In January 2001, plaintiff asked Sgt. Scoppa to speak to Deputy Chief Michael Erskine about transferring to the Booking and Detention Unit. Sgt. Scoppa met with Dep. Chief Erskine and told him that plaintiff had personal problems and wanted a transfer.

According to plaintiff, Sgt. Scoppa said that Dep. Chief Erskine was angered by the transfer request and not inclined to approve it. Plaintiff told Sgt. Scoppa that he would "have to use a doctor's note to get transferred," to which Sgt. Scoppa replied that if plaintiff did so, "they are going to make your life miserable, they're going to ruin your career,[.]" Sgt. Scoppa also said that plaintiff could transfer to the Booking and Detention Unit but it would have to be on a verbal basis without a doctor's note so that plaintiff could later return to forensics if he so chose. Plaintiff was not treating for or diagnosed as suffering from any mental or psychological condition at this time, and he did not indicate what the doctor's note would say.

In August 2001, plaintiff spoke to Capt. Flipping about transferring out of the MCU. Their discussion apparently centered on plaintiff's difficulty with the constant on-call schedule and the effect it had on his home life. The record does not indicate that plaintiff told Capt. Flipping the extent to which his MCU investigations were causing him stress and anxiety.

Dep. Chief Erskine eventually approved plaintiff's transfer from the MCU; however, he made it clear that plaintiff must go where manpower was needed and that there was no guarantee of a transfer to the Booking and Detention Unit.

On August 24, 2001, plaintiff began treating with Edward Black, M.D., a psychiatrist. Dr. Black did not issue any report at that time indicating that he diagnosed plaintiff as suffering from a mental or psychological disability. Also, there is no evidence that Dr. Black or plaintiff advised the ACPD or anyone at the ...


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