February 1, 2012
DONALD DEGROOT, PLAINTIFF-APPELLANT,
LINDEN BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-022413-10.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Argued November 9, 2011
Before Judges Yannotti and Kennedy.
Plaintiff Donald DeGroot (DeGroot) appeals from an order granting summary judgment in favor of defendant Linden Board of Education (Linden BOE), dismissing claims for payment for unused vacation days, and an order denying plaintiff's cross-motion for summary judgment. Because there exists a disputed issue of material fact, we reverse.
I This is a contract action in which the facts are essentially undisputed except for one key area pertinent to plaintiff's claims which we shall identify hereafter. The Linden BOE hired DeGroot as an Information Technology Manager in February 2002. DeGroot was not a member of the Linden Administrators and Supervisors Association (LASA), a bargaining unit recognized by the Linden BOE. He negotiated a separate individual employment contract directly.
Paragraph six (6) of DeGroot's contract with the Linden BOE, governing benefits and entitlements, provided as follows:
Except as otherwise set forth herein, and except as may be inconsistent with specific terms hereof during the life of this contract, DeGroot shall receive all benefits and entitlements including vacation days, personal days, holidays, longevity, bereavement and sick leave provided to all employees pursuant to the policies and procedures of the Board and as agreed to in the contract between the Board and the Linden Administrators and Supervisors Association in existence at the time of execution of this contract.
At the time, the agreement between the Linden BOE and LASA provided for a $70 per day payment for all unused sick days upon retirement and an option to receive a payment of $100 for each personal day that had not been used by the end of the year. However, the agreement did not provide payment for unused vacation days.
By letter dated March 31, 2010, DeGroot, then sixty-five, notified the Superintendent of Schools that he would retire as of September 1, 2010. DeGroot's notice of intention to retire was accepted by the Linden BOE at its April 28, 2010 meeting. Also, at that time, the Linden BOE approved a two month extension of DeGroot's employment contract.
Approximately forty-five days later, on May 11, 2010, DeGroot changed his retirement date to August 1, 2010. He had, at that point, accrued twenty-three vacation days, three personal days and thirty-nine sick days. He intended to use his vacation and personal days through July and retire on August 1, 2010. However, the Superintendent asked DeGroot to work during July in order to train his replacement as Information Technology Manager. DeGroot, believing that he would be paid for his unused vacation and personal days, agreed and worked the entire month of July 2010 and retired effective August 1, 2010.
After his retirement, DeGroot requested compensation for his unused sick days, personal days and vacation days. At the Linden BOE's September 15, 2010 meeting, it approved his request for compensation of his unused sick days, but refused to compensate him for unused vacation and personal days.
The attorney for the Linden BOE wrote to DeGroot on September 16, 2010, and informed him that his request for compensation for either "accumulated vacation or article days"*fn1
would be denied. The letter indicated that "your employment agreement does not explicitly refer to payment for either accumulated vacation or article days" and that as an "unaffiliated employee whose terms of employment are not governed by a collective bargaining agreement, you are not entitled to the benefit of past practices which may arise under a union contract." The letter further provided that he would be paid for his accumulated sick days.
DeGroot subsequently filed a complaint in the Law Division claiming that he was entitled to payment for unused vacation days and personal days and that the Linden BOE breached its agreement with him by its failure to make payment. An answer was filed by the Linden BOE denying the allegations of the complaint and subsequently the parties filed cross-motions for summary judgment.
In support of his motion for summary judgment, DeGroot claimed that four recently retired board employees who were members of LASA received payment for unused personal and vacation days. The Linden BOE denied that such a policy existed.
The trial judge granted summary judgment to DeGroot on his claim for three unused personal days because the LASA agreement explicitly extended an option to receive a payment of $100 for each personal day that had not been used by the end of the school year. However, the trial judge denied summary judgment to DeGroot on his claim for twenty-three unused vacation days because the LASA agreement did not explicitly provide for payment for unused vacation days.
DeGroot had argued that he was entitled to payment for unused vacation time because of a "policy" of the Linden BOE to pay employees who were LASA members for unused vacation time. The trial judge rejected this argument and explained that while "this issue is in fact disputed and is a question for a factfinder", nonetheless, "[w]hether a past practice existed . . . is irrelevant because . . . DeGroot is not, and never was, a member of the LASA union. Within the context of labor unions, a clear body of law has developed which allows terms and conditions of a collective bargaining agreement to be established by a consistent past practice." The judge noted that "this notion of entitling employees to the benefit of past practices not explicitly mentioned in their employment contract has only been applied in the context of union members." Accordingly, the court granted summary judgment on behalf of the Linden BOE on the issue of plaintiff's unused vacation days, but granted plaintiff's claim for unused personal days.
An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Because we are reviewing an order granting summary judgment dismissing plaintiff's complaint, we examine the factual record, and reasonable inferences that can be drawn from those facts, in a light most favorable to the plaintiff. Brill v. Guardian Life Insurance Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). The court cannot resolve contested factual issues, but instead must determine simply whether there are any genuine issues of material fact. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). If there are disputed issues of material fact, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540.
We accord no special deference to a trial judge's assessment of the documentary record as the decision to grant or withhold a summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that "no special deference" applies to a trial court's legal determinations).
The construction of a contract term is a question of law. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 77, 92 (App. Div. 2001). The scope of that legal review includes deciding whether a contract provision is clear and unambiguous. Nestor v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997). A provision is ambiguous if it is "susceptible to at least two reasonable alternative interpretations." Ibid. (citation omitted). Where there is such an apparent ambiguity, the court may consider extrinsic proofs that may "shed light on the mutual understanding of the parties." Hall v. Board of Educ. of Jefferson, 125 N.J. 299, 305 (1991) (citations omitted); see also Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 270 (2006).
With these principles in mind, we now turn to the contract at issue in this case. Initially, we agree with the trial judge that there is a disputed fact on whether by past practice or procedure the Linden BOE paid employees in LASA for unused vacation time upon retirement. However, we differ with the trial judge on the effect such factual dispute has on the controversy at issue. The contract provision that DeGroot relies upon utilizes expansive language. It provides that "DeGroot shall receive all benefits and entitlements including vacation days, personal days, holidays, longevity, bereavement and sick leave provided to all employees pursuant to the policies and procedures of the Board and as agreed to in the contract between the Board and the Linden Administrators and Supervisors Association (LASA) in existence at the time of this contract." (Emphasis added). There is nothing in such expansive language to support the trial judge's conclusion that "even assuming there is in fact a past practice of paying all retiring LASA members for their unused vacation days, DeGroot, as a nonLASA member is not entitled to benefit from this practice."
If there is a policy and procedure of providing retiring LASA members with payment for unused vacation time, either as part of their contract or pursuant to the Linden BOE's "policies and procedures," then DeGroot would be entitled to such a benefit as well. In this regard, we are mindful of the general precept that an ambiguous contract is to be construed against the party drafting it. In re Estate of Miller, 90 N.J. 210, 221 (1982). Here, it is alleged that the Linden BOE drafted the contract and intentionally and specifically utilized the expansive language that gives rise to the controversy underlying this lawsuit.
Given that there is a disputed issue of fact as to whether there is a past procedure or policy of the Linden BOE to compensate retiring employees subject to the LASA contract with payment for unused vacation time, we are constrained to reverse the summary judgment order granted to the Linden BOE dismissing plaintiff's complaint and we remand the matter to the trial court for further proceedings not inconsistent with this opinion.