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William T. Simisak v. County of Mercer and Victoria Rivera-Cruz


September 1, 2011


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3123-07.

Per curiam.


Submitted March 28, 2011

Before Judges A. A. Rodriguez and Grall.

William T. Simisak, a former Mercer County Assistant Personnel Director, appeals from the January 25, 2010 order dismissing his complaint and granting summary judgment in favor of defendants Mercer County and Victoria Rivera-Cruz. Simisak alleged: violations of the federal Family and Medical Leave Act (FMLA), 29 U.S.C.S. §§ 2601 to 2119, the New Jersey Family Leave Act (NJFLA), N.J.S.A. 34:11B--1 to --16, and the Law Against Discrimination (LAD), N.J.S.A. 10:5--1 to --42; intentional infliction of emotional distress and breach of the covenant of good faith and fair dealing. On appeal Simisak challenges the judgment on all claims other than breach of the covenant of good faith and fair dealing. We affirm.

This court must apply the "'same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. Any inferences must be resolved in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If no issue of fact exists, we must simply determine whether the "trial court's ruling on the law was correct." Henry, supra, 204 N.J. at 330.*fn1

Viewing this record in the light most favorable to Simisak and giving him the benefit of all favorable inferences, the facts can be stated as follows.

The County hired Simisak in 1985. By 1996, he was the Assistant Personnel Director for the County. After years of being a registered Republican, Simisak switched his party affiliation to the Democratic party in July 1999 and supported its candidate for County Executive.

One day after the 1999 election, the Director of Personnel reassigned Simisak to work in the Employee Relations Department at the Mercer County Correction Center in Hopewell. The timing of this move led Simisak to believe that it was retaliation for his change of political affiliation, and one could infer that his work for the candidate was known to the incumbent County Executive.

At the Correction Center, Simisak was required to represent the County in disciplinary hearings against inmates. Simisak hated it there. During the first year and a half to two years, his office was "unsecured and unheated," and "away from the rest of the administrative staff, in an area accessible to inmates and corrections officers." In addition, he received threats from inmates upset with the imposition of disciplinary sanctions. Simisak's office remained in the basement for about two years. Despite those conditions, he had perfect attendance.

Thereafter, the warden moved Simisak's office to the second floor where other administrative offices were located. In that office, he only encountered inmates sent to do housekeeping chores. Problems with anxiety, hypertension and nosebleeds, which Simisak and a doctor attributed to his workplace, led him to take an extended disability leave from January 2003 through January 2004.

A Democrat was elected County Executive in January of 2004. Simisak returned from his leave to work at the County Administration Building in Trenton on February 9, 2004 in his capacity as Assistant Director of Personnel. Three months later, Victoria Rivera-Cruz was appointed Director of Personnel and became Simisak's supervisor. At that point, Simisak was the only male in the six-employee personnel office. During a conversation, which Simisak could not identify by either date or context, Rivera-Cruz told him she thought he had a problem with women bosses. He told her that he had previously worked for women and had no problem with them.

Shortly after Rivera-Cruz assumed the director's role, the chief of staff to the County Executive, a male, asked Simisak to leave his office in favor of Rivera-Cruz's new confidential aide, Colleen. Simisak agreed. According to Simisak, the chief of staff promised him one of two new offices that the County planned to build. The other new office was to go to Vikki Purdy, another Assistant Director who was the office manager, but Simisak's subordinate.

A private office was important to Simisak because his job required him to conduct confidential interviews. After losing his office, he had to interview in an upstairs conference room when it was available or a smaller, closet-like room, when it was not. That did not bother Simisak, but it impeded his work.

Shortly after Rivera-Cruz became director, she questioned Simisak's lack of computer skills and its impact on his job. In fact, Simisak admits that Rivera-Cruz had that concern about her entire staff and, for that reason, arranged for all of them to have free computer training during work hours to enhance their skills.

Work on the new offices was halted at Rivera-Cruz's request. When Colleen left the County's employ, Simisak requested his former office, but Rivera-Cruz denied that request and left the office empty.

In November of 2004, Simisak requested family leave because his eighty-four-year-old mother required knee surgery. The County officially granted Simisak twelve weeks of intermittent leave over twelve months starting on December 10, 2004.

In January 2005, Simisak had a serious nosebleed, and the burst vessel had to be cauterized. He missed eleven days of work from January 3 to 19, 2005 and had only four paid sick days left for that year. Rivera-Cruz demanded that he provide medical documentation for any subsequent use of sick leave and warned that failure to comply would result in the time used being counted as unauthorized absence and subject to disciplinary action.

On January 20, 2005, Rivera-Cruz sent two excessive absenteeism memos to Simisak. One of the memos advised Simisak of his right to seek help for any problem through the county's Employee Assistance Service. The other memo advises Simisak that he will be charged for hours he had been out of work prior to the effective date of his FMLA leave and subject to discipline if his attendance did not improve. Because Simisak's request form FMLA leave is not included in the appendix, it is not clear whether any of the time charged was for dates subsequent to his submission of his formal request for FMLA leave.

On December 14, 2005, Rivera-Cruz told Simisak she intended to assign him to the Correction Center to a task force formed to address a prevalent problem with officers abusing leave that was having an impact on overtime expenses. She explained that Simisak had the essential expertise and was handling FMLA requests at that time. Simisak told Rivera-Cruz about the physical problems he had developed while at the Correction Center and objected to the assignment. In response, Rivera-Cruz promised to consider Simisak's objection.

On December 15, a doctor working with the Personnel Department checked Simisak's blood pressure. Because it was dangerously high, the doctor directed Simisak to leave work and seek immediate medical attention; he suggested an ambulance. Simisak preferred to take himself to his own doctor. He never returned to work after the date and declined, understandably, to delay his departure in order to speak to Rivera-Cruz.

Construction on the new offices in the Personnel Department had resumed and they were completed before Simisak left work on December 15 but around the same time. Rivera-Cruz took one and gave the other to Vickki Purdy.

Effective December 15, 2005, Simisak took disability leave. His doctor recommended he stay out of work until December 29, 2005, due to "hypertension [and] anxiety." Simisak also sought a workers' compensation referral, which Rivera-Cruz wanted to discuss with him.

Simisak promptly attempted to arrange a meeting with the County Administrator to discuss his reassignment to the Correction Center. Rivera-Cruz wrote to Simisak on December 16, 2006 to schedule that meeting. Because Simisak did not want to meet in the presence of Rivera-Cruz, he declined to attend. He wrote to explain that and advised that Rivera-Cruz "was fully aware of [his] medical condition that resulted from [his] previous placement at the correction center."

Simisak advised that he was "willing and able to perform all of [his] personnel duties" but believed that reassignment there would negatively affect his health. He described the reassignment as "another example of workplace harassment."

Simisak's psychologist wrote to the County on December 20, 2005. He recommended that Simisak not be placed at the Correction Center because Simisak was "exhibiting symptoms of anxiety and post traumatic stress disorder" similar to those suffered during his prior placement.

Subsequently, Rivera-Cruz scheduled Simisak for an appointment at the Metro Employee Assistance Service (MEAS). Although Simisak missed the first appointment, he submitted to an evaluation on January 6, 2006 to avoid disciplinary charges.

Rivera-Cruz wrote to Simisak on December 23, 2005, requesting a "sick leave certification" and warning of "disciplinary action." The County ultimately designated the first twelve weeks of Simisak's absence as FMLA leave, which would expire on March 17, 2006. Simisak does not argue that he was entitled to additional leave under the FMLA after that date. Moreover, there is nothing in the record suggesting he made a request for leave under either the FMLA or the FLA after that date. By letter of March 3, 2006, an Assistant Director of Personnel reminded Simisak that his FMLA leave would expire on March 17, 2006.

At some point, not clear on this record, Simisak's sick leave was extended, without pay, until March 28, 2007. Simisak did not return to work on that date and his subsequent absence was initially designated as unauthorized. With the assistance of his attorney, however, Simisak obtained additional extensions.

One extension required Simisak to report for a return-to-work examination by September 24, 2007, which he did not do. The County initially denied a subsequent request for an extension but gave Simisak an opportunity to resign in good standing, which he did not take. Thereafter, the County subsequently gave him an additional chance to report for work, but he did not.

On November 5, 2007, the County mailed preliminary notice of a disciplinary action seeking Simisak's "resignation not in good standing." But while a hearing on that charge was pending, the County agreed to another extension and cleared Simisak for return to work on December 19, 2007, more than two years after his departure on December 15, 2005.

Simisak did not appear on that date. His attorney advised the County that his doctor refused to clear him and could not state a date on which he would be able to return. On January 10, 2008, the County refiled the charge with amended specifications, asserting that Simisak's absence after December 15, 2007, was unjustified and the County's denial of another extension of the leave was reasonable. Simisak did not appeal that decision.

Simisak filed suit against the County and Rivera-Cruz on December 13, 2007. The trial court granted summary judgment in favor of the County and Rivera-Cruz on January 25, 2010.


We first consider defendants' entitlement to summary judgment on the FMLA and FLA claims. The court entered those judgments on the ground that the claims were barred by a two-year statute of limitations. Simisak does not argue that a different limitations period applies.*fn2 He contends, rather, that a jury could find that he did not discover that the County intended to wrongfully discharge him until he was served with the first notice of disciplinary action on November 5, 2007.

The judge determined that the record did not permit a finding is Simisak's favor based on the discovery rule. He found that the limitations period commenced with the County's January 20, 2005 letter advising Simisak that his pay was being docked for the time he took prior to the approval date of his family leave, which was nearly three years before the complaint was filed. With respect to Simisak's first leave, we agree.

The FMLA's "central provision guarantees eligible employees 12 weeks of leave in a 1--year period following certain events" one of which is "a disabling health problem." Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S. Ct. 1155, 1160, 152 L. Ed. 2d 167, 175 (2002); see 29 U.S.C.S. § 2612(a)(1). In addition, the FMLA provides rights at the end of FMLA leave; "[u]pon the employee's timely return, the employer must reinstate the employee to his or her former position or an equivalent." Ragsdale, supra, 535 U.S. at 88, 122 S. Ct. at 1160, 152 L. Ed. 2d at 175; see 29 U.S.C.S. § 2614(a)(1). Section 2615(a)(1) of the FMLA makes it unlawful for an "employer to interfere with, restrain or deny the exercise of or the attempt to exercise any right provided" in the FMLA, "and violators are subject to consequential damages and appropriate equitable relief." Ragsdale, supra, 535 U.S. at 86--87, 122 S. Ct. at 1160, 152 L. Ed. 2d at 175 (internal quotations omitted).

The FLA does not apply to leave based on an employee's health condition; it permits an employee with a sick partner to take a leave of up to twelve weeks during a twenty-four month period. N.J.S.A. 34:11B-3(i),(j); N.J.S.A. 34:11B-4. It provides a right to take that leave "'without risk of termination of employment or retaliation by employers and without loss of certain benefits'" if "the employee provides reasonable notice under the circumstances and avoids undue disruption of the employer's operations." DePalma v. Building Inspection Underwriters, 350 N.J. Super. 195, 212 (App. Div. 2002) (discussing N.J.S.A. 34:11B-5). The FLA provides job security by requiring that the employee be "'restored . . . to the position held . . . when the leave commenced or to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment.'" Ibid. (quoting N.J.S.A. 34:11B-7). Like the FMLA, the FLA provides for compensatory damages, limited punitive damages and attorneys' fees. Ibid. (citing N.J.S.A. 34:11B-11 and -12).

Simisak had one leave that falls within the purview of both acts - the intermittent leave to care for another, which expired in December 2005. Despite Simisak's claim that he had no notice that the County would retaliate by imposing discipline until November 2007, the warning issued on January 20, 2005 advised him that his pay would be docked for absences prior to the approval of that leave and that future abuse of leave would result in disciplinary action.

The discovery rule "postpones the accrual of a cause of action" only while the plaintiff "reasonably is unaware" of the injury and the identity of the offender. Roa v. Roa, 200 N.J. 555, 571 (2010) (internal quotation marks and alterations omitted). No reasonable fact-finder could conclude that Simisak remained unaware of the threat that disciplinary sanctions applicable to absences would be taken after he received the notice in January 2005. In fact, the record indicates that Simisak viewed the January 20, 2005 letter as an unjustified warning amounting to a first step in the disciplinary process; he pointed to that letter as evidence of harassment in the form of unjustified discipline. Accordingly, we affirm the dismissal of Simisak's statutory claims based on the first leave.

We affirm the grant of summary judgment related to the second leave on different grounds. As noted above, this was leave based on Simisak's health condition covered by the FMLA but not the FLA. There is no dispute that Simisak's second FMLA expired in March 2006. Thereafter, he was not able to return to work and was placed on extended sick leave at his request. That leave was extended numerous times. As we stated above, the FMLA requires an employer to reinstate an employee upon his or her "timely return." Ragsdale, supra, 535 U.S. at 88, 122 S. Ct. at 1160, 152 L. Ed. 2d at 175; see 29 U.S.C.S. § 2614(a)(1). Permitting a finding of retaliation based on an employee's refusal to reinstate more than a year after a FMLA leave expired would extend the protection far beyond what Congress afforded in the FMLA. As Simisak was never able to return to work after his FMLA leave expired in March 2006, his FMLA claim based on that leave fails as a matter of law.


Simisak also contends that his LAD claims should be reinstated. We conclude that defendants were entitled to summary judgment on his claims of discrimination based on political affiliation, gender and disability.

The claim of discrimination based on political affiliation is not covered by the LAD. The LAD prohibits discrimination based "race, creed, color, national origin, ancestry, age, martial status, . . . affectional or sexual orientation, . . . [and] sex." N.J.S.A. 10:5-12(a). It does not protect again discrimination based on political beliefs or party membership, which is addressed in the state and federal Civil Rights Acts, N.J.S.A. 10:6-1 to -2 and 42 U.S.C.S. § 1983. Simisak did not invoke those acts.

Simisak's claim of gender discrimination also fails. Even assuming a jury could find that Rivera-Cruz's saying Simisak had a problem working with women demonstrated an intent to discriminate, the evidence does not support a finding that Rivera-Cruz discriminated on that basis. Simisak had no evidence to back up his bald assertion that female employees were granted leave more liberally than him. With respect to office assignments, he admits he agreed to vacate his office for a woman on the promise of a new one that was to be built, and he admitted that when she left that office it was left vacant despite the fact that he and a woman assistant director had none. When the female assistant director was given the office instead of him, it was at about the same time Rivera-Cruz told him she was moving him to the Correction Center where there was a problem with FMLA requests, which he handled. As there was inadequate evidence to permit a finding of gender discrimination or a hostile work environment based on gender, defendants were entitled to summary judgment on that claim.

Simisak also cannot succeed on his claim of disability discrimination. Discrimination based on disability can be based on the employer's failure to accommodate or discrimination. There is no evidence that supports a finding of adverse action attributable to discrimination based on disability. The only theory suggested by the record is the failure to accommodate Simisak's disability that could be inferred from the decision to transfer him to the Correction Center. A jury could infer that Simisak requested a reasonable accommodation in December 2005 when he told Rivera-Cruz that he objected to the transfer to the Correction Center because of the impact that working in that environment had on his health in 2003. See Victor v. State, 203 N.J. 383, 422-23 (2010).

A jury could not find, however, that defendants failed to discuss a reasonable accommodation with him. Simisak admits that Rivera-Cruz told him she would consider his objection, and the record establishes that a meeting was arranged so that his objection could be addressed. Simisak declined to attend that meeting because Rivera-Cruz would attend. But the right to a "reasonable" accommodation is not a right to a "particular accommodation." Id. at 423. Simisak has cited no authority for the proposition that the right to reasonable accommodations includes the authority to demand a meeting that excludes the employee's immediate superior. More important, in the lengthy period that followed Simisak's refusal to attend the meeting and his termination, Simisak never made another request to address his working conditions. On those facts, we see no basis for finding of liability based on defendants' failure to accommodate and affirm the grant of summary judgment based on Simisak's disability.


Defendants were also entitled to judgment on Simisak's claim of intentional infliction of emotional distress. Simisak based that claim on Rivera-Cruz's deliberate reassignment of him to the Correction Center, despite her knowledge of his prior "physical reaction" to working at that location.

A plaintiff seeking damages for intentional infliction of emotional distress must prove "intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988). The intentional conduct "must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Ibid. (quoting Restatement (Second) of Torts (1965), § 46 cmt. d.).

Because Simisak admits that Rivera-Cruz immediately told him she would consider his objection to moving to the Correction Center, a reasonable jury could not find that her conduct was "beyond all possible bounds of decency." As we have observed, "it is extremely rare to find conduct in the employment context that will rise of the level of outrageousness necessary to provide a basis for the recovery for the tort of intentional infliction of emotional distress." Ingraham v. Ortho-McNeil Pharmaceutical, ___ N.J. Super. ___ (App. Div. 2011) (slip op. at 12) (internal quotations omitted). Accordingly, we affirm the dismissal of this claim as well.


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