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Edward Swannack v. Township of Neptune and Howard O'neil

December 9, 2011

EDWARD SWANNACK, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF NEPTUNE AND HOWARD O'NEIL, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF POLICE OF THE TOWNSHIP OF NEPTUNE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2435-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2011

Before Judges Cuff and Lihotz.

Plaintiff Captain Edward Swannack appeals from the dismissal of his action and the denial of the subsequently filed motion for reconsideration. Plaintiff's complaint alleged violations of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, naming as defendants his employer, defendant Township of Neptune, and his superior officer, defendant Police Chief Howard O'Neil. The trial court determined plaintiff had elected to present his claims in an administrative forum, thus denying the Superior Court of jurisdiction. Plaintiff argues the court erred in its analysis, maintaining he dismissed the administrative matter prior to entry of a final decision, allowing him to elect Superior Court review. We disagree and affirm.

Prior to our review of the Superior Court's order, we must consider the agency actions. We begin by reciting the necessary procedural history of plaintiff's discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR).

On April 1, 2008, plaintiff filed a "Charge of Discrimination" against defendants with the EEOC and the DCR, alleging he experienced age discrimination, retaliatory discrimination, and was "subjected to harassment and a hostile work environment." Plaintiff included an addendum to his EEOC charge, allowing the EEOC submission to additionally serve as a complaint to the DCR.

The charge resulted from events following plaintiff's June 28, 2006 work injury. Plaintiff slipped and fell, causing a fractured right leg and back strain. He was released to return to light duty on August 31, 2006. He returned to work in the same capacity, at his regular duties, in September 2006. Plaintiff filed a workers' compensation claim for the period of July 10, 2006 to September 3, 2006.

Seventeen months following his return to work, plaintiff was ordered to undergo a fitness for duty examination after defendant received a doctor's report concerning plaintiff's medical condition. Pending the examination, plaintiff was placed on an authorized leave of absence with pay and with no impact upon his accumulated sick leave. When plaintiff's cardiologist informed defendants "it was not safe" for him to participate in the examination, his leave of absence was no longer classified as an "on the job injury" and his accumulated sick leave would be charged. Plaintiff characterized this as a forced retirement.

On June 25, 2008, the DCR informed plaintiff the dual-filed complaint would be processed by the EEOC. Further, he was advised:

Once the [EEOC] has made a [d]etermination concerning this charge and closes its file, the [DCR] ordinarily adopts the EEOC's determination. However, upon application, and for good cause shown, the [DCR] will review a no reasonable cause determination by the EEOC to ensure that it comports with standards under the [LAD].

In a February 23, 2009 notice, the EEOC notified plaintiff it had completed an investigation and was "unable to conclude that the information obtained establishes violations of the statutes." Accordingly, plaintiff's discrimination charge was dismissed. On June 1, 2009, the DCR informed plaintiff it was closing its file "on the same basis" stated for closing the EEOC file. Plaintiff appealed the DCR's determination.*fn1

On or about May 20, 2009, plaintiff filed this Superior Court complaint, grounded on the same conduct underlying his agency grievances. In the five count complaint he alleged retaliation, harassment, and intentional and negligent infliction of emotional distress by defendants. Defendants moved to dismiss the complaint, alleging the court lacked subject-matter jurisdiction pursuant to Rule 4:6-2(a). The motion was denied without prejudice pending appellate review of the DCR determination.

On appeal of the agency determination (Docket No. A-5511-08), the DCR filed a motion requesting a limited remand and investigation. In support of the motion, the certification ofDCR counsel expressed concern plaintiff "may not have been provided with clear, accurate information about his options under state law following the EEOC's completion of its investigation." Remand was sought "to investigate and conduct further analysis . . . to discern whether the [DCR]'s disposition of th[e] matter was proper." We granted the request for a temporary remand, ordering "[t]he remand proceedings [] to be completed within 90 days of [the date of the order]." On June 21, 2010, plaintiff notified the DCR and EEOC he was formally withdrawing his discrimination charge. In light of the voluntary ...


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