On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-342-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Plaintiff Clark Motley, a retired State Trooper, appeals from orders entered in the Law Division dismissing his discrimination and retaliation complaint against the State of New Jersey and the Division of State Police. We affirm.
Plaintiff is a Caucasian man. He became a State Trooper in 1987 and served in that capacity until he was compelled to retire on disability on June 1, 2004. During his employment, he requested and received several transfers of duty and station. He was promoted to Trooper I in 1997, and remained in that rank until his forced retirement.
In 2002, plaintiff was named a Trooper of the Year for his heroic rescue efforts during the September 11, 2001 catastrophe at the World Trade Center. He and other Troopers transported firefighters and police officers to safety by boat across the Hudson River. In October 2002, however, plaintiff took sick leave and never returned to active duty.
On February 6, 2004, plaintiff and his wife filed a nine-count complaint against the State of New Jersey, the Attorneys General of the State of New Jersey "past and present," the New Jersey State Police, the Superintendents of the State Police "past and present," and fictitiously-named "John Doe" defendants (the State defendants). The complaint alleged hostile work environment under the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49, (count one); disparate treatment under the LAD (count two); violations of State constitutional rights (count three); retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, (count four); retaliation in violation of the LAD (count five); sexual harassment in violation of the LAD (count six); the common law tort of intentional infliction of emotional distress (count seven); common law harassment (count eight); and direct claims of injury to Joanne Motley based on the same allegations contained in the first eight counts of the complaint (count nine).
On June 29, 2004, plaintiffs filed an amended complaint, which did not add or alter claims as listed but amended some factual allegations and dropped the Attorneys General and the Superintendents of the State Police as defendants.
Following procedural rulings and an interlocutory appeal that do not directly affect the current appeal, Motley v. State, Docket No. A-6626-04 (App. Div. May 12, 2006), the State defendants moved to dismiss all but the CEPA count of the complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. The Law Division heard oral argument and, by oral decision and an order dated March 16, 2007, granted the motion to dismiss all counts of the complaint but count four alleging violation of CEPA and count nine alleging direct claims by Joanne Motley. Subsequently, plaintiffs did not oppose dismissal of count nine by order dated June 22, 2007, for Joanne Motley's failure to provide discovery.
Several months later, the State defendants moved for summary judgment dismissing the sole remaining CEPA count. The Law Division granted defendants' motion by oral decisions dated January 18 and February 19, 2008, and an order entered on the latter date.
Plaintiffs filed a timely notice of appeal from the orders of dismissal dated March 16, 2007, and February 19, 2008.
We turn first to the trial court's dismissal of counts of the complaint other than those alleging discrimination in violation of the LAD and the State constitution.
Count nine alleged injury to Joanne Motley.*fn1 Plaintiffs' notice of appeal does not reference the order of June 22, 2007, which dismissed count nine for failure to provide discovery. Nor does plaintiffs' appellate brief argue error in relation to count nine. Plaintiffs' brief states that Joanne Motley voluntarily chose to dismiss her claims rather than provide a release for discovery of her medical records. Consequently, although Joanne Motley is named as an appellant in the notice of appeal and in the captions of the briefs, the appeal as argued does not involve her.
The trial court dismissed counts seven and eight of the complaint for plaintiff's failure to comply with the requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Those counts alleged respectively the common law torts of intentional infliction of emotional distress and harassment. Because the court's ruling was purely a matter of law, our standard of review is plenary. See Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 59:8-3 provides that "[n]o action shall be brought against a public entity or public employee under [the Tort Claims Act] unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-8 requires a claimant to file a "claim with the public entity within 90 days of accrual of his claim." Plaintiff never filed any notice of claim with any of the State defendants.
Before the trial court, plaintiff argued that he was not required to comply with the Tort Claims Act because his common law tort claims were brought in conjunction with statutory CEPA and LAD claims. The trial court correctly rejected this argument.
Although the notice provisions of the Tort Claims Act are not applicable to claims under CEPA and the LAD, see Fuchilla v. Layman, 109 N.J. 319, 337-38, cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed. 2d 51 (1988), they apply to separately pleaded common law tort claims. In Owens v. Feigin, 394 N.J. Super. 85, 97 (App. Div. 2007), aff'd as modified, 194 N.J. 607 (2008), we held that the notice provisions of the Tort Claims Act do not apply to a statutory claim under New Jersey's Civil Rights Act, N.J.S.A. 10:6-2. The plaintiff in that case had not challenged dismissal of his common law tort claims for failure to provide timely notice under the Tort Claims Act, and we did not disturb that ruling. Id. at 88.
Common law tort claims are not exempt from the requirements of the Tort Claims Act when plaintiff has also brought ...