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Thomas V. Bowers, Iii v. the New Jersey Judiciary

August 29, 2011

THOMAS V. BOWERS, III, PLAINTIFF-APPELLANT,
v.
THE NEW JERSEY JUDICIARY, SUPERIOR COURT OF NEW JERSEY, MONMOUTH VICINAGE, AND TROY FITZPATRICK, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8061-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 25, 2011

Before Judges Sapp-Peterson and Simonelli.

Plaintiff, an African-American, appeals from the Law Division order granting summary judgment dismissing his discrimination complaint against defendants, the New Jersey Judiciary ("Judiciary"), Superior Court of New Jersey, Monmouth Vicinage ("Vicinage"), and Troy Fitzpatrick ("Fitzpatrick"). Plaintiff alleged that based upon his race, defendants failed initially to promote him to Acting IT*fn1 Manager and, later, to the permanent position. He claimed further that he was subjected to a hostile work environment and that after he filed an internal discrimination complaint, defendants engaged in retaliatory conduct that ultimately led to his termination. Defendants moved for summary judgment, arguing that plaintiff's complaint lacked substantive merit. The court conducted oral argument on October 29, 2010, and immediately thereafter granted summary judgment to defendants. The court found that plaintiff's failure-to-promote claim was time-barred, plaintiff failed to "show[] any material fact that the discrimination alleged rose to the level necessary to demonstrate a Title VII claim[,]" and that plaintiff was not subject to a retaliatory discharge.

Plaintiff filed his notice of appeal. On the same date that he filed his appellate brief, the motion judge, pursuant to Rule 1:7-4(a), filed a letter memorializing his reasons for granting summary judgment. The court stated that plaintiff could not invoke the "discovery rule"*fn2 to maintain his claim that he was wrongfully denied appointment as the Acting IT Manager because plaintiff learned he was not appointed as the Acting IT Manager on October 27, 2005, and did not file his complaint until May 2008, more than two years beyond the statutory period for filing LAD*fn3 claims.

As for the failure to promote plaintiff to the IT Manager position permanently, the court noted that plaintiff, by his own admission, failed to apply for the position. As such, the court reasoned that plaintiff could not, as a matter of law, establish a prima facie case of discriminatory failure to promote.

Addressing the hostile work environment claim, the judge found that "[g]enerally, conduct must include repeated racial slurs to create a hostile work environment[,]" and that the tasks assigned to him were within his job description. The judge noted that dissatisfaction with the assigned tasks does not rise to the level of creating a hostile work environment.

Turning to plaintiff's claim that defendants engaged in retaliatory conduct after he filed his discrimination complaint, the judge found that none of the tasks assigned to plaintiff, or actions undertaken by defendants, affected his employment. Specifically, plaintiff experienced no loss in pay or any loss of promotional opportunities. Further, the judge found that defendants did not engage in any conduct that rose to the level of constructive discharge:

The [p]laintiff's medical leave was granted as required under state and federal law. After extensions of his medical leave, he was told to return to work on September 7, 2007, and was also informed that a failure to do so would be considered job abandonment. Proper due process was provided to [p]laintiff when he failed to return to work, and he was ultimately terminated on October 2. The discharge was the result of an operational hardship of the employer, not a retaliation. Because the [p]laintiff could not meet the expectation of his employer, the [p]laintiff was terminated. For this reason, the [p]laintiff's retaliatory discharge claim was dismissed as a matter of law.

On appeal, plaintiff raises the following points for our consideration:

POINT I

SUMMARY JUDGMENT STANDARD [AND] APPLICABLE STANDARD OF REVIEW.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS FAILURE TO DOCUMENT ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW.

POINT III

THE TRIAL COURT SHOULD NOT HAVE DISMISSED ANY CLAIM BY THE PLAINTIFF BASED ON THE STATUTE OF LIMITATIONS.

POINT IV

THE PLAINTIFF HAS PRESENTED SUFFICIENT EVIDENCE OF RACE-BASED DISCRIMINATION BY THE DEFENDANTS, AND [T]HE TRIAL COURT THEREFORE SHOULD HAVE DENIED SUMMARY JUDGMENT AND ALLOWED THE CASE TO PROCEED TO TRIAL.

POINT V

THE PLAINTIFF HAS PRESENTED SUFFICIENT EVIDENCE OF RETALIATION BY THE DEFENDANTS, AND THE TRIAL COURT THEREFORE SHOULD HAVE PERMITTED THIS CLAIM TO PROCEED TO TRIAL.

We have considered the points raised and arguments advanced in light of the applicable legal principles and reverse the grant of summary judgment dismissing plaintiff's failure-to-promote claim related to the Acting IT Manager position and remand for a Lopez*fn4 hearing. We also reverse the court's order granting summary judgment in connection with plaintiff's hostile work environment claim and retaliatory termination claim. We affirm the grant of summary judgment dismissing plaintiff's claim of failure to promote to the permanent position of IT Manager.

I.

Preliminarily, we briefly comment upon the motion judge's submission of a letter memorandum pursuant to Rule 1:7-4. We note that at the conclusion of the oral argument and the rendering of his oral decision on October 29, 2010, the motion judge, in response to an inquiry from plaintiff's counsel whether the court would issue a written decision, stated: "[I]n the event you file an appeal, I'm going to put my findings in writing under [Rule] 2:5-1[(b).]"

Under Rule 2:5-1, within fifteen days of the mailing of the notice of appeal and case information statement to the trial judge, the trial judge "may file and mail to the parties an amplification of a prior statement, opinion or memorandum made either in writing or orally and recorded pursuant to R. 1:2-2." Plaintiff filed his notice of appeal on November 15, 2010.

Having failed to file an amplification of the record in accordance with Rule 2:5-1(b), the letter submitted on January 26, 2011 "pursuant to Rule 1:7-4(a)" does not satisfy the requirements of Rule 2:5-1(b). We have previously held that a court's obligation under Rule 1:7-4 to "find facts and state conclusions of law" on every motion is not fulfilled by waiting to see if a litigant files a notice of appeal of the court's decision. In re Will of Marinus, 201 N.J. Super. 329, 339 (App. Div.), certif. denied, 101 N.J. 332 (1985). The "[f]ailure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). This is especially true where, as occurred here, the court's findings of fact and conclusions of law were filed on the same day that the brief on behalf of plaintiff was filed. Plaintiff's Point II raises, as reversible error, the court's failure to document any findings of fact or conclusions of law. Plaintiff's reply brief, however, filed on April 21, 2011, addresses the court's letter, arguing that the factual findings and conclusions of law were insufficient. Further, plaintiff contends the filing of the letter beyond the time period set forth in Rule 2:5-1(b) was prejudicial to plaintiff. However, plaintiff does not specifically identify the prejudice.

Because we are satisfied that our de novo review of the record supports the court's oral findings on October 29, 2010, as those findings relate to the grant of summary judgment dismissing plaintiff's claim of failure to promote him to the permanent IT Manger's position, and in view of our reversal of the grant of summary judgment related to the failure to promote to the Acting IT Manager's position, the hostile work environment and the retaliatory discharge claims, we conclude the court's belated filing of its amplified statement of reasons was not prejudicial to plaintiff. We do not, however, endorse the practice utilized by the motion judge in this case, and a belated Rule 2:1-5 statement should never be used to rebut the arguments in an appellant's brief.

II.

Our review of a trial court order granting summary judgment is de novo and we apply the same standard as the trial court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a "light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

The salient facts relevant to the summary judgment motion, viewed in a light most favorable to plaintiff, reveal that the Vicinage hired plaintiff to fill the position of Information Technology Analyst ("ITA") 2 on November 19, 2001. His duties included helping "to consolidate the backup processes[,]" upgrading the operating systems of PCs, supervising Juan Colmenares ("Colmenares"), who was an ITA 1 at the time, and upgrading phone and email systems. He also served as the Vicinage's liaison with other agencies. Paul Saker ("Saker"), the Vicinage's IT Manager, was plaintiff's supervisor at the time plaintiff commenced his employment. Under Saker's supervision, plaintiff received favorable reviews. In particular, his reviews for 2003, 2004, and 2005 reported that plaintiff "met or exceeded all the expectations during the advisory period" and that he "should continue his good work ethic." Plaintiff was promoted to ITA 3 on February 5, 2005. Following his promotion, in addition to his previous duties, plaintiff's responsibilities were "[m]ore focused on Lotus"*fn5 and handling specific projects for departments.

Beginning July 2005, Saker took an extended medical leave. He never returned from leave and retired one year later. Shortly after Saker commenced his medical leave, the Vicinage's trial court administrator ("TCA"), Marsi Perkins ("Perkins"), approached plaintiff about assuming the IT Manager's duties. At that point, plaintiff had been an ITA 3 for about seven months. There were four other ITAs in plaintiff's department: Ken Liss ("Liss"), an ITA 1; Colmenares and Kathy Lowell ("Lowell"), who were both ITA 2s, and Dean Barringer ("Barringer"), an ITA 3. Plaintiff was the only African-American in the Vicinage's IT Division. Additionally, there were no African-American IT managers in any of the fifteen judiciary vicinages throughout the state, and only one other racial minority, an Asian Indian.

On October 18, 2005, the TCA submitted a formal request to the Acting Director ("Director"), Administrative Office of the Courts ("AOC"), to appoint plaintiff as Acting IT Manager, pending Saker's return from extended sick leave. In her request, the TCA advised the Director that her request was based upon the recommendation from the Vicinage Assignment Judge ("AJ"). She indicated further that during Saker's absence, plaintiff "has become the lead" in performing the duties of Acting IT Manager. While awaiting a response from the Director, the Vicinage informally treated plaintiff as the Acting IT Manager and identified him as such in memoranda. While performing these duties, plaintiff supervised high profile projects, including the relocation of the Asbury Park Probation Office to Ocean Township. Plaintiff attended monthly IT Manager meetings in Trenton where he encountered the Chief Information Officer, James Rebo ("Rebo"), and the Assistant Director of Technical Services and Operations, Jonathon Massey ("Massey"), both of whom he later contended "generally would not acknowledge my presence" at meetings.

In response to the TCA's request to appoint plaintiff as Acting IT Manager, the Director sent Rebo an email on October 24 indicating, "Monmouth has made a request to appoint Thomas Bowers as IT [M]anager, retroactive to August 22 when he assumed his duties during the absence of Paul Saker. Please advise." Rebo, through email, ...


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