On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1277-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R.B. Coleman and C.L. Miniman.
Plaintiff Peter J. Muracco, Jr., appeals from an April 17, 2009, grant of summary judgment in favor of defendant Township of Washington dismissing plaintiff's complaint with prejudice. We now affirm.
Plaintiff was employed by defendant in its public works department and was a member of the American Federation of State, County and Municipal Employees Council 71, Local 3303A (the Union). It is undisputed that plaintiff's employment was governed by a valid and enforceable collective negotiation agreement (CNA).
After work on March 7, 2007, at about 8:00 p.m., plaintiff was involved in a motor vehicle accident with an ambulance. Washington Township police officers charged plaintiff with reckless driving, contrary to N.J.S.A. 39:4-96; driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50; failure to maintain liability insurance, contrary to N.J.S.A. 39:6B-2; and possession of a controlled dangerous substance (Xanax), contrary to N.J.S.A. 2C:35-10a(1), a third-degree offense for which a term of imprisonment up to five years could be imposed, N.J.S.A. 2C:43-6a(3). The following day, Debra Fourre, Township Business Administrator, sent a formal notice of disciplinary charges to plaintiff charging him with:
1. Article 14, Discipline and Discharge, G.6. A crime more serious than a misdemeanor punishable by one (1) year or more in prison for the possession, sale, purchase or use of illegal drugs.
2. Township of Washington Policy and Procedure Manual, 7-01 Employee Conduct and Work Rules. Other sufficient cause[.]
The notice informed plaintiff that a hearing would be conducted that day at 2:30 p.m. at the Business Administrator's Office to determine whether his current suspension with pay should be converted to a suspension without pay pending a final hearing on the disciplinary charges. The charges were:
1. On March 7, 2007, you were arrested for driving while intoxicated and charged with possession of controlled dangerous substance in violation of NJS 2C:35-10a(1) which charges you with a crime punishable by more than one year in New Jersey state prison.
2. If convicted, the employee is subject to a two year loss of New Jersey driving privilege as well as a permanent loss of CDL license.*fn1
At the time, plaintiff was hospitalized for injuries he suffered in the motor vehicle accident, and the hearing was postponed by defendant. The following day, Fourre sent another memorandum to plaintiff, which stated in part:
Please be advised that the L[o]udermill*fn2 Hearing scheduled for this afternoon has been postponed because you were hospitalized and unable to attend. Your union representatives did attend on your behalf but no hearing was conducted pending your availability. The hearing has been postponed until such time as you are able to return to work or Monday, March 26, 2007 at 10:00 a.m., whichever occurs first. In the meantime, the charges and specifications remain as stated in my memo of yesterday. Because of the extension of the hearing, your suspension with pay has been converted to suspension without pay, effective Monday, March 12, 2007. . . .
When you are cleared to return to work by your doctor, you will need to provide my office with written documentation of the clearance.
On March 22, 2007, plaintiff's attorney sought an adjournment of the hearing pending his receipt of discovery and any and all documents to be used by defendant at the hearing. He also suggested that it would be premature to conduct a hearing while the criminal charges were still pending with the Gloucester County Prosecutor's Office. The hearing was not rescheduled by defendant.
On June 13, 2007, plaintiff sought and was granted a conditional discharge for a term of one year in connection with a disorderly persons offense under N.J.S.A. 2C:35-10c. Plaintiff also pled guilty to the DWI charge and had his driver's license suspended for two years. Various fines and penalties were imposed in connection with both offenses, and the charges under N.J.S.A. 39:4-96 and 39:6B-2 were dismissed.
On August 6, 2007, plaintiff filed a Verified Complaint instituting this action. He alleged the facts we have outlined above and noted that he was required to use all of his accrued vacation time and personal days during the suspension. He alleged that the charge remanded by the prosecutor to the municipal court, a violation of N.J.S.A. 2C:35-10c, was a disorderly persons offense subject to no more than six months in jail. Plaintiff contended that he had been constructively discharged and that defendant had prematurely suspended him without pay ...