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Grubb v. Garbutt

September 3, 2010

JON KEVIN GRUBB, PLAINTIFF-APPELLANT,
v.
PATRICIA A. GARBUTT, PAUL DIETRICH, RICHARD PALUMBO, CURTIS CORSON, AND TOWNSHIP OF UPPER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-75-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 18, 2009

Before Judges Axelrad, Sapp-Peterson and Espinosa.

Plaintiff, Jon Grubb, appeals from three trial court orders: (1) an October 20, 2006 order granting a partial dismissal of plaintiff's complaint against defendants Patricia A. Garbutt (Garbutt), Paul Dietrich (Dietrich), Richard Palumbo (Palumbo), Curtis Corson, and the Township of Upper (Township) (hereinafter collectively referred to as "defendants"); (2) a November 16, 2007 order granting summary judgment dismissing the remaining claims in his complaint; and (3) a January 8, 2008 order denying reconsideration of the court's October 20, 2006 order. We affirm substantially for reasons expressed by Judge Joseph C. Visalli in the well-reasoned memorandum decisions accompanying each order.

In June 2005, the Township instituted disciplinary charges against plaintiff seeking his removal from his position as a truck driver, a position he had held in the Township for more than ten years. The charges accused Grubb of conduct unbecoming a public employee, insubordination, failure to perform and other sufficient cause. Although the matter initially proceeded before the Township Committee, at plaintiff's request, it was terminated and transferred to a hearing officer for resolution.

Following the denial of plaintiff's counsel's request that the hearing officer recuse himself, plaintiff was granted a stay of the proceedings in order to appeal the denial of his recusal application in Superior Court. What followed, however, was plaintiff's order to show cause and verified complaint not only seeking disqualification of the hearing officer and transfer of the disciplinary proceeding to the Superior Court, but also asserting claims alleging violation of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and the New Jersey Constitution. N.J. Const. art. I, ¶ 1.

Defendants initially moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e). The court partially granted the motion. Addressing the prerogative writs action, the court found the interests of justice did not mandate that any aspect of plaintiff's disciplinary proceedings be heard in Superior Court. The court also dismissed plaintiff's double jeopardy claim, rejecting his contention that the loss of employment was a protected civil right or a property interest. Citing Thomson v. Sanborn's Motor Express, Inc., 154 N.J. Super. 555, 560-61 (App. Div. 1977), the court also dismissed plaintiff's claim of ancestry discrimination, noting the LAD "does not cover discrimination based on the parent-child relationship."

The court denied defendants' motion as to plaintiff's LAD claims. The court concluded that when confronted with a motion to dismiss for failure to state a claim upon which relief may be granted, courts are to liberally examine pleadings to determine if a cause of action exists. Under that liberal standard, the court was satisfied an inference of failure to accommodate, hostile work environment sexual harassment and retaliation could be gleaned from the pleadings.

One year later, defendants moved for summary judgment dismissing the LAD claims. Viewing the facts in the light most favorable to plaintiff, the court observed that plaintiff conceded there were no facts in the record to suggest defendants were aware that he suffered from bipolar disorder prior to January 3, 2005, and that plaintiff admitted in his deposition that he never requested an accommodation for his bipolar disorder. The court also found that plaintiff failed to establish a causal connection between the adverse employment action and plaintiff's disability.

Pursuant to the "sham affidavit" doctrine, Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002), the court rejected that portion of plaintiff's certification submitted in opposition to defendants' summary judgment motion in which plaintiff stated that following his deposition testimony, where he admitted to never requesting an accommodation for his bipolar disorder, he recalled that in 2004 he told his father, and then at his father's direction, defendant Garbutt, the Township Personnel Director, that he suffered from bipolar disorder. The court found that that this statement "directly opposes the testimony provided by [p]laintiff in his deposition."

Next, the court found that plaintiff's additional claim of disability discrimination premised upon his hypertension could not withstand summary judgment for a number of reasons. First, the court noted that plaintiff failed to demonstrate through expert medical opinion that his hypertension is a disability. Second, plaintiff relied upon his April 2002 grievance as the basis for establishing his request for an accommodation related to his hypertension. Because plaintiff's complaint was not filed until 2006, the court determined that any claim of disability discrimination based upon his hypertension was time-barred.

Turning to plaintiff's LAD claims based upon hostile work environment sexual harassment, the court concluded that the name-calling to which plaintiff pointed as supporting his claim was insufficient to withstand summary judgment. Addressing plaintiff's retaliation claim, the court reasoned that this claim could not survive summary judgment, since plaintiff admitted in his deposition that he had no reason to believe that anyone in the Township did anything to retaliate against him because he sought workers' compensation benefits.

Thereafter, plaintiff sought reinstatement of his CRA claim. The court treated the matter as a motion for reconsideration pursuant to Rule 4:49-2, and found that plaintiff failed to meet the requirements for relief, but nonetheless addressed the merits of the motion. The court explained that the mere allegation of a constitutional issue in a complaint will not relieve a litigant from the obligation to exhaust applicable administrative remedies. Further, the court found that plaintiff failed to demonstrate irreparable harm that would result from an administrative resolution of his disciplinary charges. The present appeal followed.

I.

On appeal, plaintiff first contends that the court erroneously dismissed his LAD-based claims arising out of disability discrimination, sexual harassment hostile work ...


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