The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.
This Memorandum and Order concerns five issues that the Court evidently did not address in the Court's December 9, 2010 ruling on Plaintiffs Scott Coulson, et al's ("Plaintiffs") motion for summary judgment ("Plaintiffs' Motion for Summary Judgment"); and (2) Defendants Town of Kearny, et al.'s ("Defendants") motion for summary judgment ("Defendants' Motion for Summary Judgment"). Defendants' December 22, 2010 letter (Docket Entry 88) highlighted the five unaddressed issues. The Court responds below to each of Defendants' arguments.
Issue 1: Defendants Contend that Chief Joseph Lapsanski (Retired) ("Chief Lapsanski") Cannot Be Held Liable Under the Uniformed Services Employment and Reemployment Rights Act ("USERRA") Because Chief Lapsanski Is Not an "Employer."
Under USERRA, an employer includes any "person . . . to whom the employer has delegated the performance of employment-related responsibilities." 38 U.S.C. § 4303(4)(A)(I). Defendants contend that Chief Lapsanski did not have authority to hire or fire Kearny Fire Department ("Fire Department") firefighters because those actions required municipal council approval. Although the municipal council must act, the Chief of the Fire Department is in charge of all Fire Department operations, including Fire Department staff. From my experience, there exists no municipal council which would take action against firefighters without the input of the Chief of the Fire Department.
As such, the Chief of the Fire Department is the person who has authority over employment issues in the Fire Department.
In an effort to convince this Court that Chief Lapsanski is not an employer, Defendants contend that Chief Lapsanski's role was analogous to the role of a supervisor in a case, Brooks v. Fiore, 2001 WL 1218448 (D. Del. Oct. 11, 2001), aff'd 53 Fed. Appx. 662 (3d Cir. 2002). In Brooks, the plaintiff employee's supervisor -- Robert Fiore ("Mr. Fiore") -- was dismissed from the suit because Mr. Fiore had no authority to hire or fire the plaintiff employee. Id. at * 9 n.3. The court acknowledged that it was Mr. Fiore's supervisor, John Flynn ("Mr. Flynn"), who -- after being involved in disciplining the plaintiff employee -- made the decision to fire the plaintiff employee. Id. at * 3. By way of analogy to the Brooks case, Chief Lapsanski is more similar to Mr. Flynn as opposed to Mr. Fiore. Chief Lapsanski had broad control over employment at the Fire Department. As a result, Chief Lapsanski is a properly named defendant under USERRA.
Issue 2: Defendants Contend that Business Administrator Joseph D'Arco ("Mr. D'Arco") Cannot Be Individually Liable Under the New Jersey Law Against Discrimination (the "NJLAD").
Defendants argue that Plaintiffs failed to address this issue in Plaintiffs' opposition brief to Defendants' Motion for Summary Judgment. As such, Defendants maintain this issue is uncontested, and, as a result, Defendants' Motion for Summary Judgment should be granted with respect to this issue. This Court disagrees because Plaintiffs have opposed this issue.
Despite same, Defendants' Motion for Summary Judgment on Plaintiffs' NJLAD claims is granted, and this Court dismisses the claim. Because Mr. D'Arco's involvement with respect to Plaintiffs' allegations is very sporadic, Mr. D'Arco's actions do not meet the aiding and abetting standard applicable under the NJLAD. See Cicchetti v. Morris Cnty. Sheriff's Office,194 N.J. 563, 594 (2008) (citations omitted). Defendants' Motion for Summary Judgment is therefore granted with respect to this issue, and Mr. D'Arco is dismissed under the NJLAD.
Issue 3: Defendants Contend that Plaintiffs' USERRA Claims Should Be Dismissed for Failure to Exhaust Contractual Remedies.
The court has reviewed the Collective Bargaining Agreement (the "CBA") at issue. There is no provision which expressly indicates that USERRA claims are subject to the CBA. As such, Plaintiffs have not waived any of Plaintiffs' rights under USERRA. In support of Defendants' argument, Defendants refer this Court to two exhibits filed in support of Defendants' Motion for Summary Judgment. Neither of these exhibits refers to the calculation of military leave pay, differential pay or other USERRA remedies. As such, Plaintiffs' USERRA claims are not subject to the CBA, and therefore Defendants' Motion for Summary Judgment is denied with respect to this issue. For a CBA to waive a statutory right, the union's "waiver must be clear and unmistakable." Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70, 80 (1998).
Issue 4: Defendants Contend that USERRA Does Not Provide for Paid Military Leave. Defendants' contention is half correct. There is no firm statutory obligation to provide pay or differential pay to firefighters who are on leave to the military. See generally Gordon v. Wawa, Inc., 388 F.3d 78, 82; Brooks, 2001 WL 1218448 at * 10. This does not address conclusively, however, the extent of the firefighters' protection under USERRA. Under USERRA, a person in military service may take furlough or leave of absence from employment. See generally 38 U.S.C. §§ 4311(a), 4316(b)(1)(A).As such, a uniformed service employee is entitled to the same rights and benefits as other employees on furlough or leave of absence. See generally 38 U.S.C. § 4316(b)(1)(B). Hence, to determine whether Plaintiffs are entitled to pay or differential pay from Defendants, there must be a comparison between the firefighters on military leave and the firefighters who are on leave for other reasons. See generally 38 U.S.C. § 4316(b)(1)(B). Firefighters on leave to the military must receive the same treatment as non-military firefighters who go on leave for other reasons. See generally 38 U.S.C. § 4316(b)(1)(B). The Department of Labor -- which has published questions and answers about USERRA implementation -- supports this interpretation.
Sec. 1002.149 What is the employee's status with his or her civilian employer while performing service ...