On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4590-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011
Before Judges Grall, LeWinn and Coburn.
Plaintiff Harry Formica, the supervisor of Special Services for defendant Atlantic City Board of Education, appeals from an order granting the Board and defendant Frederick P. Nickles, its superintendent, summary judgment on Formica's claims of retaliation and failure to accommodate in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm the grant of summary judgment as to Formica's failure-to-accommodate claim, but reverse as to his retaliation claim.
In September 2003, Formica was approached by a subordinate, Alison Devinney, and told that Barry Caldwell, the Board's assistant superintendent for operations, had sexually harassed her. Formica contacted his supervisor and arranged to be present when Devinney reported the incident with Caldwell.
Formica alleges that after Devinney reported Caldwell's harassing conduct, the Board began to retaliate against him. The Board's retaliatory actions can be divided into two categories: those that relate to Formica's pay and those that do not. We state the facts in the light most favorable to Formica, aware that the Board disputes much of this account. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Formica first claims that in July 2003, the Board conspired
to improperly grant him a pay raise, which was later successfully challenged by his union. According to Formica, when he was first hired as a supervisor in 2001, he was placed on "step one" of the Board's pay scale despite having nineteen years of previous experience in student administration at the college level. In 2003, the Board decided that Formica should have been started at "step three" and advanced him on the pay scale accordingly. But rather than adopt a resolution explaining that Formica's sudden salary increase was an adjustment to his initial step, the Board included the increase without comment in a chart of approved salaries distributed after the July meeting.
Formica's raise was challenged as an unfair labor practice by his union before the Public Employment Relations Commission (PERC). Formica concedes that his raise as adopted was unlawful, but contends that if the Board had drafted and approved an appropriate resolution, the union's challenge would not have succeeded.
Although the foregoing events occurred before Formica engaged in the conduct that he alleges led to retaliation, Formica points to events subsequent to his protected conduct as well. In July 2005, the Board and Formica's union reached a tentative settlement of the PERC complaint. The tentative settlement retroactively removed Formica's increase in salary and required him to repay it to the Board. The Board immediately began withholding money from Formica's paychecks although the tentative settlement was not yet finalized.
Formica complained to the Board but was rebuffed. Thomas Kirschling, the Board's assistant superintendent for human resources, told Formica that "he had no time" to discuss the issue with him, and Nickles told Formica to "get lost." Formica then complained to the Board's labor attorney, who agreed that the withholdings were illegal and promised that he would speak to Nickles about it. The record does not reveal whether that discussion took place, but, if it did, nothing came of it. According to Formica, $19,000 was recouped by the Board through withholdings.*fn1 The final agreement between the Board and Formica's union, settling the union's grievance, ultimately did not require Formica to repay his improper raise. Instead, Formica was to be kept at his current step until the 2006-2007 school year.
The last alleged retaliatory action affecting Formica's pay occurred at the November 8, 2005 Board meeting. According to Rochelle Salway, a Board member at the time, the Board was in closed session and discussing an increase in salary step for Formica.*fn2 During the discussion, Nickles told the Board that
Formica was sabotaging his administration by giving "false testimony" about Devinney. Nickles was against an increase in step for Formica, and his opposition was because of Formica's participation in the Devinney investigation. In Salway's opinion, Nickles was retaliating against Formica because "Fred [Nickles] was a very determined individual and you do not go against Fred for anything." Salway claimed that Formica ultimately did not get the step increase under discussion.
The non-pay-related retaliatory actions Formica alleges are varied. Primarily, Formica claims that the Board retaliated against him by moving his office. In 2005, his office was moved from the administration building to a set of temporary trailers. He did not object to this move, finding it more convenient for him. To the contrary, he alleges that the Board retaliated when it moved him out of the trailers and to the sixth floor of a new administration building. According to Formica, he was never told why he was being moved. Formica's sixth-floor office is inconvenient for him because he has difficulty walking and would be unable to ...