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

September 1, 2011

WILLIAM T. SIMISAK, PLAINTIFF-APPELLANT,
v.
COUNTY OF MERCER AND VICTORIA RIVERA-CRUZ, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...

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