NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2136-10.
Claude Townsend, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ryan C. Atkinson, Deputy Attorney General, on the brief).
Before Judges Reisner and Carroll.
Plaintiff Claude Townsend appeals from a June 15, 2012 order dismissing his complaint against New Jersey Transit Corporation (NJT) for failure to file a notice of claim under the Tort Claims Act, N.J.S.A. 59:8-3. We affirm.
In 2009, NJT fired plaintiff for excessive absenteeism. On September 7, 2010, he filed a Law Division complaint alleging that NJT defamed and slandered him. His complaint did not allege or even suggest that he was asserting a cause of action for violation of any state or federal anti-discrimination statute. Defendant demanded a more definite statement. In his more definite statement, plaintiff alleged that he was wrongfully terminated and that NJT defamed him by giving a negative reference to plaintiff's prospective new employer. He still did not specify any alleged statutory violations. In answers to interrogatories, plaintiff alleged that NJT defamed him in opposing his application for unemployment compensation. At his subsequent deposition, plaintiff confirmed that his legal claims were limited to defamation and tortious interference with prospective economic advantage.
Based on that record, NJT filed a motion for summary judgment, contending that plaintiff had failed to perfect his tort claims by filing a notice of claim, which was required by the Tort Claims Act (TCA), N.J.S.A. 59:8-3. See Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003) (holding "that NJT is a public entity within the ambit of the TCA"). The trial judge agreed with NJT's argument and dismissed plaintiff's complaint.
On this appeal, plaintiff raises arguments that he did not present to the trial court. He now contends that NJT violated his rights under the New Jersey Law Against Discrimination, (LAD), N.J.S.A. 10:5-1 to -42, and the Federal Age Discrimination in Employment Act (ADA), 29 U.S.C.A. §§ 623(a), 631(a). Had he sued NJT under those statutes, he would not have been required to file a notice of tort claim. See Fuchilla v. Layman, 109 N.J. 319, 337-38 (1988).
We reject his contentions for several reasons. First, we will not consider arguments not presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, if we consider the arguments, plaintiff's complaint, even viewed indulgently, did not plead facts sufficient to state a claim under the LAD or the ADA. See Printing Mart v. Sharp Elecs., 116 N.J. 739, 746 (1989). And, in his deposition, he stated that he was only intending to raise common law claims. He was required to file a notice of claim under the TCA within ninety days of the date on which his common law tort claims accrued. N.J.S.A. 59:8-3. Because he failed to do so, his claims are now barred. N.J.S.A. 59:8-8.
Finally, even if plaintiff had raised disability discrimination claims, they would have been without merit. An employer is not required to accommodate a disabled employee by permitting the employee to remain absent from work indefinitely. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 9 (2d Cir. 1999). Plaintiff's additional appellate ...