On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1592-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Baxter.
Plaintiff Robert J. Travisano, a former Union County employee, alleged in this action that he was discriminated and retaliated against based on his age, disability, and political affiliation, asserting violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, as well as other common law torts. He claims in this appeal, among other things, that the trial court erred in granting summary judgment in favor of defendants George W. Devanney, who was the Union County Manager, and the Board of Chosen Freeholders (the Board), and in denying him leave to amend his complaint to add Union County as a party late in the litigation. We reject these and all of plaintiff's other arguments and affirm.
On May 3, 2007, plaintiff filed a complaint against the Board and Devanney, as well as M. Elizabeth Genievich, the Union County Deputy Manager, Alfred Faella, the Director of Union County's Department of Economic Development, and Charlotte DeFilippo, the Chair of the Union County Democratic Committee and Executive Director of the Union County Improvement Authority. The complaint alleged discrimination based upon age and physical disability in violation of the LAD, political affiliation discrimination in violation of the CRA and the New Jersey Constitution, and intentional infliction of emotional distress. All individual defendants were named "in their official and individual capacities." Union County was not named as a defendant.
DeFilippo, Genievich, and Faella successfully obtained summary judgment; those rulings have not been appealed. The Board and Devanney also moved for summary judgment. The motion judge granted summary judgment in favor of the Board. He also granted partial summary judgment in favor of Devanney on plaintiff's claim of intentional infliction of emotional distress but denied summary judgment on plaintiff's LAD and CRA violations against Devanney, for reasons set forth in a written opinion filed on March 9, 2009.
On March 12, 2009, plaintiff moved to amend his complaint to add Union County as a defendant. Devanney cross-moved for reconsideration of the March 9, 2009 order insofar as it partially denied his motion for summary judgment. The motion judge denied leave to amend and also clarified his earlier decision, emphasizing that plaintiff's claim that Devanney aided and abetted LAD violations remained part of the case.
On September 21, 2009, the first scheduled trial date, another judge (hereafter "the trial judge") granted a motion to dismiss with prejudice the claim that Devanney aided and abetted any LAD violation. And subsequent motions led to a dismissal of the constitutional claims against Devanney. Because the trial judge thereby resolved all remaining issues as to all parties, plaintiff appealed, presenting the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DETERMINING THAT NEITHER THE BOARD NOR DEVANNEY, IN HIS OFFICIAL CAPACITY, WAS TRAVISANO'S "EMPLOYER."
A. Devanney, In His Official Capacity, Was Travisano's "Employer" For Purposes Of The LAD.
B. The Board Should Have Been Subjected To Employer Liability Because It Is Indistinguishable From The County.
II. THE TRIAL COURT ERRED IN DENYING TRAVISANO'S MOTION TO AMEND.
A. The Trial Court Abused Its Discretion By Failing To Conclude That Amendment Would Correct A Mere Misnomer.
B. The Trial Court Failed To Properly Apply R. 4:9-3.
III. DEVANNEY CANNOT ASSERT A QUALIFIED IMMUNITY DEFENSE.
A. The Trial Court Should Not Have Permitted Devanney To Assert Qualified Immunity As A Defense On The Eve Of Trial.
B. Devanney Is Not Entitled To Qualified Immunity In This Case.
In his cross-appeal, Devanney argues*fn1 he was erroneously denied summary judgment on plaintiff's LAD and political affiliation claims because:
I. DEFENDANT DEVANNEY DID NOT INDIVIDUALLY AID OR ABET DISCRIMINATION UNDER THE LAD.
II. EVEN IF THIS COURT WERE TO DETERMINE THAT MR. DEVANNEY WAS PLAINTIFF'S EMPLOYER, MR. DEVANNEY IS STILL ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S LAD CLAIMS.
III. THE MOTION JUDGE ERRED IN DENYING MR. DEVANNEY'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S POLITICAL AFFILIATION CLAIM.
Because we find no merit in plaintiff's arguments, we need not reach the merits of those parts of Devanney's cross-appeal not otherwise incorporated in our disposition of plaintiff's appeal.
Because the claims against the Board and Devanney were summarily dismissed, the trial court was required to examine the facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This court is bound to that same standard. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
Plaintiff testified at his deposition that, in 1988, he began his employment with Union County. In 1995, plaintiff had surgery to remove a brain tumor, which left him paralyzed on the left side of his face, deaf in his left ear, and with some vision loss in his left eye. He also suffered depression and embarrassment as a result of the effect of the facial paralysis on his appearance.
In 1997, at the request of then County Manager Michael Lapolla, plaintiff began working in Union County's newly-formed Department of Economic Development as an Economic Development Specialist. Plaintiff and Lapolla were childhood friends and remained very close. In 1997, Devanney was the Deputy County Manager, the ...