On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-667-05 and L-781-06 (consolidated), and L-25-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued: January 14, 2011
Before Judges Axelrad, R. B. Coleman, and Lihotz.
Plaintiff Edward Flores, a former City of Trenton (City) firefighter, appeals from a variety of interlocutory and summary judgment orders, in essence, dismissing all his claims. We affirm.
The following lengthy factual and procedural history is relevant to our consideration of the arguments advanced on appeal. Flores was a firefighter with the Trenton Fire Department (TFD) for almost fourteen years before he was terminated. During that time he was addicted to drugs and alcohol. Pursuant to a referral from defendant, Metro Employee Assistance Service (MEAS),*fn1 Flores attended a five-day inpatient substance abuse treatment program at Princeton House, a drug and alcohol treatment center, in May 2001.
However, Flores failed a return-to-work drug test given on July 6, 200l, testing positive for cocaine. As a result, he was charged by TFD's Deputy Chief Richard J. Snyder with a violation of the fire department's rules and regulations.*fn2 On July 13, 200l, Snyder issued Flores a Preliminary Notice of Disciplinary
Action, seeking a ninety-day suspension without pay. The disciplinary matter was resolved the same day by Flores signing an "On-Notice" (ON) employment agreement, which provided, in part, that his continued employment with the TFD was contingent upon remaining drug and alcohol free. Flores also pled guilty to the disciplinary charge and agreed to accept a twenty-day suspension without pay beginning on July 28, 200l.
On October 17, 2001, Flores, who had returned to work after a period of drug and alcohol rehabilitation, again tested positive for cocaine. On October 24, 2001, a Preliminary Notice of Disciplinary Action was issued against him, outlining four charges, i.e., illicit use of drugs, rendering himself mentally or physically incapable of performing required duties, conduct unbecoming a public employee, and violation of the ON agreement. The disciplinary action sought immediate suspension without pay and removal. At the October 26, 2001 hearing, Flores, who was accompanied by the Fireman's Mutual Benevolent Association's (FMBA) Vice President Kenneth Walters, was suspended without pay.
At a departmental hearing on February 20, 2002 before TFD Director Dennis M. Keenan, Flores was found guilty on all counts and his employment was terminated effective February 26, 2002.
Flores appealed to the then-existing Merit System Board (Board)*fn3 and an Office of Administrative Law (OAL) hearing was conducted before Solomon A. Metzger, Administrative Law Judge (ALJ). On October 29, 2003, the ALJ issued a written initial decision recommending Flores' dismissal be affirmed. On December 8, 2003, the Board issued its decision, accepting and adopting the ALJ's findings and conclusions, and affirming the action taken by the City.
Flores appealed and we affirmed in an unpublished opinion. In re Flores, No. A-2771-03T1 (App. Div. Aug. 18, 2005) (Flores). The Supreme Court denied Flores' petition for certification on November 10, 2005. In re Flores, 185 N.J. 390 (2005). On September 5, 2006, we denied Flores' application for reconsideration.
In the meantime, in October 2003, Flores filed a complaint against the City defendants,*fn4 the Capital Health System, Inc. (CHS) defendants,*fn5 and the MEAS defendants*fn6 in the United States District Court for the District of New Jersey, alleging, in part, violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Family and Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601-2654, breach of contract, and negligence. On August 4, 2004, a number of claims were dismissed by summary judgment, including the LAD claims, under which the court expressly found Flores was not entitled to protection because he was an active narcotics user, and the FMLA claims. On September 1, 2004, the City filed counterclaims for unjust enrichment and misappropriation of funds based on Flores' receipt of salary and medical benefits between May 29 and July 13, 2001, a period during which the City had claimed Flores was fit for duty but remained on sick leave. On March 2, 2006, the court granted Flores' motion for leave to voluntarily dismiss his federal claims with prejudice but denied his motion to remand the case to state court, and dismissed the remaining claims without prejudice to Flores filing those claims in state court pursuant to 28 U.S.C.A. § 1367(d).
On March 1, 2005, Flores filed a Superior Court complaint (L-667-05) against the City and the FMBA, alleging, in part: (1) the FMBA should have provided him with representation against the City's federal counterclaims; (2) the City violated the LAD by filing its federal counterclaims in retaliation; and (3) the FMBA violated the LAD by discriminating against him based upon his race and his substance abuse. On June 24, 2005, Judge Mary C. Jacobson dismissed Flores' claims against the City without prejudice on grounds of comity.
On March 22, 2006, Flores filed a second complaint in Superior Court (L-781-06) against the City defendants, the CHS defendants, and the MEAS defendants. Flores alleged, in part:
(1) the City defendants discriminated against him based on his race and substance abuser status; (2) various other LAD violations by defendants; and (3) negligence by the MEAS and CHS defendants.
Flores moved for partial summary judgment against the City as to the claims in L-781-06 and to amend his complaint to add, in part, a claim for fraudulent concealment of evidence insofar as he alleged the City defendants deliberately withheld disciplinary policies and the records of similarly situated employees.*fn7 The City also moved for summary judgment. By orders of September 22, 2006, Judge Jacobson denied Flores' motion and granted the City's motion, dismissing all claims against it and against the City defendants with prejudice.
In January 2007, Flores filed a third complaint in Superior Court (L-25-07) against the City defendants, Palmer, Feigenbaum and Norton, the CHS defendants, and the FMBA and its representatives Walters, Paul Palumbi, Ronald Ettinger and Ron Kostztyu, Jr. Flores alleged, in part, fraudulent concealment of evidence, including General Order (GO) # 07-03-005, Penalties for Violations of Drug and Alcohol Policies, issued in July 2003 and reissued in April 2006. The City defendants moved to enforce the summary judgment order, and following argument on March 2, 2007, Judge Jacobson granted the motion, treating Flores' new complaint as essentially a motion for reconsideration of the summary judgment decision. By order of the same date, the judge found the claims barred against the City defendants, including the Mayor, Business Administrator and Personnel Officer, and dismissed with prejudice L-25-07 as to them; the judge did the same regarding the FMBA defendants by order of April 13, 2007. By order of March 2, 2007, the judge also denied Flores' motion to vacate the September 22, 2006 summary judgment order and appoint a Special Discovery Master. By order of May 1, 2007, Flores and the CHS defendants stipulated that L-25-07 was dismissed without prejudice as to the CHS defendants. Flores appealed and by order of July 18, 2007, we granted the City defendants' motion to dismiss the appeal as interlocutory.
Numerous discovery motions ensued on the remaining claims before Judge Jacobson. On June 8, 2007, the judge granted Flores' motion to compel the depositions of FMBA representatives in L-667-05. On the same date, Flores withdrew his motions to compel the depositions of Keenan and Snyder following rescheduling of those depositions. In another order of June 8, 2007, the judge denied Flores' motion for sanctions based on the City's cancellation of Keenan's deposition. By orders of August 22, 2007, the judge granted the MEAS defendants' motion to quash a subpoena seeking financial records in L-781-06 and quashed subpoenas seeking depositions of dismissed City defendants, although she ordered the City to produce some documents in discovery.
Following a judicial rotation, the matter was transferred to Judge Andrew J. Smithson. Flores renewed his motion to vacate the September 22, 2006 summary judgment order (and the March 3, 2007 order denying that relief) and to amend his complaint to add the fraudulent concealment of evidence claim. He also sought permission to assert claims arising under the state and federal constitutions and to reassert the FMLA claim that was dismissed in federal court. The City responded with a "safe harbor" letter, demanding withdrawal of the motions as frivolous in accordance with Rule 1:4-8 and N.J.S.A. 2A:15-59.1. Flores refused and the City defendants opposed the motions and moved for sanctions. By order of January 28, 2008, Judge Smithson denied Flores' motions and granted the FMBA's motion to quash the subpoena for the deposition of Conrad Dubow, another disciplined firefighter. By order of March 14, 2008, the judge quashed Flores' subpoena for depositions of an unidentified City employee with respect to contracts the City executed with MEAS and CHS.
By order of August 14, 2008, Judge Smithson granted the motion of the City defendants for sanctions against Flores under Rule 1:4-8(d), awarding $16,485.79 in attorneys' fees incurred in defending Flores' "frivolous motion to vacate and amend." By another order of the same date, the judge denied Flores' motions to reconsider the January 28, 2008 order denying Flores' motion to amend his complaint and to vacate the September 22, 2006 summary judgment, as well as the decision to quash the Dubow subpoena. The judge also consolidated L-781-06 and L-667-05 under L-667-05.*fn8
The MEAS defendants, CHS defendants, and FMBA defendants subsequently moved for summary judgment. Flores moved for summary judgment as to three counts, one each against Kashinsky, Dr. Makowsky, and the FMBA. By written opinion and order of September 14, 2009, Judge Smithson granted summary judgment in favor of all defendants on all counts and dismissed Flores' complaint in its entirety.
On October 26, 2009, Flores appealed from the following interlocutory and final orders entered by Judge Jacobson:
June 24, 2005 - granting the City's motion to dismiss Flores' complaint without prejudice;
June 9, 2006 - denying Flores' motion for sanctions and attorneys' fees;
a) denying Flores' motion to compel the City, Snyder and Pierson to respond to interrogatories and for sanctions and attorneys' fees, b) denying Flores' motion for partial summary judgment against the City and to amend the complaint, and c) granting summary judgment with prejudice to the City, Keenan, Snyder and Pierson on all counts of Flores' complaint; March 2, 2007 a) denying Flores' motion to vacate the September 22, 2006 orders and requests for a Special Discovery Master and an investigation, and b) granting the City's motion to dismiss Flores' complaint under Docket 25-07 as to the City, Palmer, Feigenbaum, Snyder, Laufer, Knapp, Torzewski, Dalena & Sposaro, LLC, Stephen E. Trimboli, Esq., and James Prusinowski, Esq;
April 13, 2007 - dismissing Flores' complaint with prejudice against FMBA, Palumbi, Ettinger, and Kostztyu;
a) denying Flores' motion seeking an order for the return of his litigation files from his former counsel, Fox & Fox, who were disqualified from representing FMBA by order of June 10, 2005; b) denying Flores' motion seeking an order prohibiting Fox & Fox, the Union and its members from contacting the employers or business partners of Flores and his wife, or otherwise interfering with their business relationships; and c) denying Flores' motion seeking an order preventing Fox & Fox from discussing any aspect of Flores' case and their representation of him with anyone outside the firm; June 8, 2007 - denying Flores' motion to compel depositions and for sanctions and attorneys' fees;
August 22, 2007 - quashing subpoenas served by Flores on Keenan and the City and his subpoena to the City seeking disciplinary records and settlement agreements involving City firefighters.
According to the Notice of Appeal, Flores also appealed from the following interlocutory and final orders entered by Judge Smithson:
a) denying Flores' motion to vacate the September 22, 2006 and March 2, 2007 orders, b) denying Flores' motion to amend the complaints to include an unreasonable search and seizure claim and reinstate his FMLA claim, c) denying Flores' motion to amend the complaint to assert fraudulent concealment of evidence by any defendant, former defendant, or representative, d) denying Flores' motion to name Fox & Fox, Craig Gumpel and Benjamin Benson as defendants, and e) granting FMBA's motion to quash Flores' subpoena to Dubow;
March l4, 2008 - denying Flores' motion and quashing his subpoenas to the City for the deposition of a representative regarding MEAS and CHS services;
a) denying Flores' motion for reconsideration of the January 28, 2008 order, and b) granting the motions of the City, Snyder, Keenan, and Pierson for sanctions of $16,485.79 under Rule 1:4-8 for Flores' motion to vacate the September 22, 2006 orders and to amend the complaint; and September 14, 2009 - granting summary judgment to all remaining defendants.
Flores, an Hispanic male, began his career with the TFD in August 1988 when he was twenty-five years old. He reported using cocaine, and occasionally marijuana, in his mid- to late twenties.
On April 2, 2001, Keenan issued a memorandum to all TFD personnel informing them of the department's initiation of a random drug testing policy, with the first tests to occur in early May of that year. He warned that "penalties for violations will be severe" and could include termination. Keenan suggested that any employee with a drug problem seek help prior to initiation of the random tests. On the same date, Keenan also issued a revised copy of Standard Operating Procedure (SOP) # 2.4.01, which explained the purpose of random drug testing and detailed the method by which it would occur.
On May 11, 2001, Keenan released a non-negotiated GO # 5-01-003, which explained potential penalties for violations of the drug and alcohol policy, stating penalties were "based on circumstances and could be up to and including termination." In accordance with the City's IEP, the GO required "an employee who tests positive for prohibited drug/alcohol use to be placed on probation for one year and sign an 'on notice' agreement attesting that his/her continued employment is conditional upon successful compliance with the conditions set forth in [the] agreement." A sample ON agreement was included in the IEP.
The GO also listed "MINIMUM penalties" for substance abuse. Specifically, for drug abuse, the GO provided:
The employee shall be prohibited from driving a Department vehicle for a period of at least six months. He or she shall also serve a minimum suspension as follows: Firefighters: Two days Captains: Four days Battalion Chiefs: Six days Deputy Chiefs: Eight days Director: Twelve days In addition the employee must sign the "On Notice" Agreement and be on probation for a minimum of one year.
Should the employee test positive for a prohibited substance during that probationary period, he or she shall be suspended for a minimum of thirty (30) days and be placed on a two-year probation.
Further violations during that two-year period shall result in termination.
Defendant Snyder certified that the TFD's GOs "are distributed to all of the firefighters who work for the City," thus "[e]ach and every firefighter is required to know and understand the [GOs] that are in force and effect." He further explained that the GOs are stored at headquarters and firehouses in the City and "are open public documents, which can be accessed and reviewed by anyone who makes an appropriate request."
Prior to implementing the random drug testing policy, the City had implemented an Employee Assistance Program (EAP) that was intended to help employees cope with problems such as drug addiction and mental illness in a confidential manner.
According to the policy statement, a request for diagnosis and treatment assistance would not jeopardize the employee's "job security or promotional opportunities."
To provide this service, the City contracted with MEAS. The City's contract with MEAS for the years 2002 through 2005 required that MEAS, in its counseling role, see an employee a maximum of five times, evaluate the employee's problem, and refer the employee to the appropriate treatment center. The City also contracted with CHS for, in part, provision of return-to-work exams. These exams were generally conducted to determine "fitness to return to duty after non-work related injuries and illnesses." In accordance with the contract, CHS also conducted random drug tests and return-to-work exams specifically for substance abuse situations. The results of these tests were reviewed by a Medical Review Officer (MRO) such as Dr. Makowsky, discussed with the employee, and passed on to the City's Personnel Officer. The contract further provided that in the event of a confirmed positive drug test, the MRO would refer the employee to MEAS, monitor the employee's progress, and conduct any additional testing.
In May 2001, Flores was the senior driver of his platoon at the firehouse. However, at some point he was relieved of his driving responsibilities because it was discovered he had failed to maintain his license and registration. During the course of his career with the TFD, Flores also had ten suspensions, unrelated to the instant matter, as a result of several violations of the sick leave policy, an arrest for patronizing a prostitute, absence without leave, and other miscellaneous violations.
Gregorio Rodriguez was acting captain of Flores' platoon and defendant Pierson was the battalion chief of the firehouse, which consisted of four platoons. Around early May 2001, Rodriguez was informed by other platoon members of their belief that Flores was on drugs. Rather than having Flores drug tested, Rodriguez contacted Flores on two occasions and referred him to the EAP. Flores initially claimed he had a thyroid condition but eventually admitted he had a drug problem and agreed to contact the EAP.
On May 18, 2001, Rodriguez called MEAS on Flores' behalf and four days later he transported Flores to MEAS. At that time Kashinsky and Rearick were employee assistance counselors and their supervisor was MEAS' Executive Director Sechrist. Although Rearick was the primary contact for TFD issues, due to his unavailability when Rodriguez called, Kashinsky was assigned as Flores' counselor. She conducted an assessment during an interview with Flores, who reported drinking seven or more drinks at a time, four to six days per week. He also admitted to using drugs on the weekends, including cocaine, explaining he had used cocaine since he was twenty-two years old and his use had dramatically escalated over the prior two years. Although he felt tired, had lost weight, and had suffered drug-related numbness, ulcers and nasal problems, Flores had continued to abuse drugs. He estimated he spent approximately thirty-one to forty-eight hours per week drinking or using drugs and overcoming the effects of this behavior.
Flores admitted he used both alcohol and drugs "to relieve emotional discomfort, such as sadness, anger, or boredom." He also admitted neglecting responsibilities and missing work as a result of his substance abuse, and had frequently driven while under the influence of alcohol or drugs. Kashinsky determined Flores should enter a substance abuse rehabilitation program and referred him to Princeton House for detoxification.
Flores also signed a records release authorization for Kashinsky, which allowed her to contact Dr. Makowsky, the insurance company, Snyder, and Rodriguez on an as-needed basis with information pertaining to Flores' status. On May 23, Kashinsky informed Snyder that Flores was in MEAS' care.
Flores reported to Princeton House intake that he had been drinking and using cocaine daily for the past two years[,]  drinking about 12 beers a day and . . . smoking and snorting cocaine up to $200 a day. He report[ed] having financial problems and problems at work due to his addiction. He started using alcohol twenty years ago. He has been using cocaine for ten years [and] . . . ha[d] been using Ecstasy in the past two years.
Flores was diagnosed as alcohol and cocaine dependent and suffering from a depressive disorder not otherwise specified (NOS). After a five-day detoxification program, Flores was discharged from Princeton House on May 28, 200l, and was to undergo intensive outpatient treatment and then attend ninety Alcoholics Anonymous/Narcotics Anonymous meetings in ninety days. Flores complied with none of these recommendations. According to Kevin Sopko, Flores' case manager at Princeton House, Flores was "medically cleared to resume full work duties with no restrictions" on May 29, 2001.
However, Kashinsky was informed by Princeton House personnel on June 28 that Flores had tested positive for cocaine the prior week and had a beer in his car at group therapy. A few days later, Flores admitted to using cocaine, and also stated that he was on an antidepressant. On July 2, Flores admitted to Kashinsky that he had used drugs twice since he was released from Princeton House.
According to Dr. Makowsky, Flores appeared for a return-to-work evaluation on July 6 and advised he was ready to return to his job. Flores tested positive for cocaine. Flores then admitted to Kashinsky and Dr. Makowsky that he had been using cocaine since his release from Princeton House. The positive drug results were provided to the TFD.
Pursuant to the IEP and GO, on July l3, 200l, the City filed a disciplinary action against Flores, which was resolved when he agreed to enter into an ON agreement with the City. Flores signed the agreement on July 13, 200l in the presence of Snyder, Keenan, Rodriguez and an FMBA representative. The ON agreement provided that Flores' continued employment with the City was conditioned on his compliance with all terms and conditions of the agreement, including one-year probation, becoming and remaining drug and alcohol free, participating in an appropriate treatment program, and being medically monitored and submitting to random drug tests during the probation period. Following an August 7, 200l hearing at which Flores pled guilty to the charges and acknowledged his obligations under the ON ...