On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-347-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2010
Before Judges Cuff and Fisher.
Plaintiff Kurt Stevenson appeals the summary judgment entered in favor of his employer, defendant Cape May County Board of Freeholders, dismissing his complaint, which alleged a breach of contract and a violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, based on defendant's decision to promote another electrician to the position of supervising electrician. Plaintiff has abandoned his contract claim and argues only that his LAD claim, which alleged defendant discriminated based on his alleged alcoholism, was not ripe for summary judgment. We disagree and affirm.
In reviewing the summary judgment in question, we examine the issues in light of the facts urged by plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In the trial court, plaintiff asserted he was first employed by defendant in 1995 as a building maintenance worker assigned to the Facilities and Services Department. In 1998, plaintiff considered returning to private contracting work, but his department head, Robert Springer, encouraged him to remain, advising plaintiff he was next in line for the position of supervising electrician.
Plaintiff was promoted in 2001 to the position of senior electrician. Two other electricians in the department retired in 2005, leaving plaintiff and an electrician's helper as the only employees in the Electrical Department.
The record reveals that defendant owns and maintains approximately 100 buildings, and plaintiff, as senior electrician, was required to drive to these building using a county-owned vehicle. In August 2003, plaintiff was arrested for driving while intoxicated (DWI) during off-work hours. He was convicted a few months later and lost his driving privileges for six months.
In January 2004, plaintiff was again arrested and convicted of DWI, this time losing his driving privileges for a two-year period. Defendant held a conference and the parties ultimately entered into an agreement whereby plaintiff received a thirty-day suspension from employment but was permitted to work thereafter on the condition that he attend private counseling. In addition, plaintiff was obligated to seek reinstatement of his driving privileges as soon as possible but no later than May 30, 2006, and he was precluded until that time from operating any county vehicle. As part of this agreement, defendant assigned the electrician's helper, Stephen Lund, to drive plaintiff to the various job sites where he was needed.
In early 2005, prior to the restoration of plaintiff's driving privileges, defendant decided it needed to hire an additional electrician and advertised the position of senior electrician. James Kronemeyer, the Division Manager of Mechanical Services for the Facilities and Services Department, interviewed three or four applicants and concluded that William Gannon was the most qualified for the position.*fn1 Because Gannon demanded a salary in excess of the range permissible for a senior electrician, defendant decided to make a provisional appointment of Gannon to the position of supervising electrician. Plaintiff filed a grievance, but his union chose not to pursue it upon learning that both Gannon's position was provisional and a test would be conducted in the future to fill the position on a permanent basis.
On December 6, 2005, the Department of Personnel listed the supervising electrician position as a vacancy. Plaintiff, Gannon, and Lund applied; they took the test for the position in September 2006. Plaintiff's driving privileges were still suspended at the time the test was administered. Based on the test results, both plaintiff and Gannon were ranked first, and Lund was ranked third. Defendant chose to permanently promote Gannon to the supervising electrician position.
In seeking summary judgment on plaintiff's LAD claim, defendant asserted the decision was based on Gannon's qualifications, work ethics, and habits, as well as the so-called "rule of three," which authorized the selection of any one of the top three named candidates for the position. See N.J.S.A. 11:22-6; Terry v. Mercer County Freeholder Bd., 86 N.J. 141, 147 (1981). Plaintiff claimed the decision was based on his purported alcoholism. According to plaintiff, both of his supervisors were aware of plaintiff's alcohol problems; indeed, defendant's knowledge was indisputable since defendant accommodated plaintiff when he lost his driving privileges for driving while intoxicated.
In dismissing plaintiff's LAD claim, the judge concluded that the complaint only alleged plaintiff was "an alcoholic," and plaintiff ultimately failed to provide an expert report to support that contention. The judge also precluded the filing of an amended complaint by which plaintiff sought to claim he was "perceived" by defendant as an alcoholic so as to negate his need for an expert report. In addition, plaintiff argues there was sufficient evidence to support his contention that the failure of defendant to promote him to supervising electrician was based on "mixed motives."
In reviewing a summary judgment, we apply the same Brill standard that trial courts utilize. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008); C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 57-58 (App. Div. 2006). In examining the summary judgment in question, we have assumed the truth of plaintiff's allegations and have afforded him the benefit of all legitimate inferences. Brill, supra, 142 N.J. at 540. The issues raised on appeal require our consideration of whether ...