JAMES MONTAG VS. BOROUGH OF HO-HO-KUSÂ (L-2077-13, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5315-14T4
JAMES MONTAG,
Plaintiff-Appellant,
v.
BOROUGH OF HO-HO-KUS, STEVEN
SHELL, individually and in his
official capacity as Councilman
for the Borough of Ho-Ho-Kus,
Defendants-Respondents.
_________________________________________________
Argued April 25, 2017 – Decided August 21, 2017
Before Judges Espinosa, Suter, and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-2077-13.
Charles J. Sciarra argued the cause for
appellant (Sciarra & Catrambone, LLC,
attorneys; Mr. Sciarra and Matthew R.
Curran, of counsel and on the briefs).
Mary C. McDonnell argued the cause for
respondents (Pfund McDonnell, PC, attorneys;
David T. Pfund, of counsel; Ms. McDonnell,
of counsel and on the brief).
PER CURIAM
Plaintiff James Montag (Montag) filed a complaint charging
defendants, Borough of Ho-Ho-Kus (Borough) and Councilman Steven
Shell (Shell), with violations of the Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -42. Montag contended defendants
failed to reasonably accommodate his disability and terminated
his employment because of it. N.J.S.A. 10:5-4.1. He appeals a
July 10, 2015 order denying his motion for a spoliation
inference without prejudice and a July 24, 2015 order granting
defendants summary judgment on his LAD claims.
"In reviewing a grant of summary judgment, 'we apply the
same standard governing the trial court—we view the evidence in
the light most favorable to the non-moving party.'" Steinberg
v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349-50 (2016) (quoting
Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015)). When the
evidence and "all legitimate inferences therefrom favoring the
non-moving party, would require submission of [a plaintiff's
claims] to the trier of fact," the defendants are not entitled
to summary judgment. Id. at 366-67 (quoting R. 4:46-2(c)). To
prevail, defendants must show entitlement to judgment "as a
matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
Applying those standards without giving Montag the benefit
of a spoliation inference, we conclude defendants were not
entitled to summary judgment, reverse and remand for further
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proceedings.1 Because Montag's motion for a spoliation inference
was denied without prejudice, there is no reason to address it.
I.
Consistent with the standard of review, we state the facts
in the light most favorable to Montag. Montag worked for the
Borough for nineteen years before the Borough terminated his
employment in 2012. He started in 1993 as a repairman/laborer
in the Department of Public Works (DPW) and subsequently served
as a mechanic, foreman and assistant superintendent. In April
2010, the Borough separated responsibility for roads, building
and grounds and responsibility for water and sewer. Thereafter,
Montag served as the superintendent of the Borough's Water and
Sewer Department (WSD). Montag's co-worker, Jeffrey Plattman,
was assigned equivalent responsibility for roads, buildings and
grounds.
Montag reported directly to Donald Cirulli, the Borough's
Business Administrator and Human Resources Director. Defendant
Councilman Steven Shell, who took office in January 2012 and
served as Commissioner of WSD and Assistant Commissioner of DPW,
was the Council's liaison with those departments.
1
The record was adequate to withstand defendants' motion for
summary judgment without affording Montag an inference based on
deleted e-mails.
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According to Shell, Montag and Plattman accomplished their
work with six or seven employees who reported to both
superintendents, and all of them "pitched in to help each
other." Shell had no problems with Montag's work and was not
aware of any complaints about his abilities, performance or
professionalism. Shell recalled Montag doing well when
explaining the importance of water conservation to members of
the Council and public. Similarly, Cirulli was not dissatisfied
with Montag's performance.
The circumstances leading to Montag's termination and this
litigation involve Montag's obligation to report to State and
local officials. The Borough's water system consists of wells
from which the Borough pumps, tests, treats and distributes
water, and its sewer system collects and transports wastewater
for treatment elsewhere. These systems for "wastewater
collection," "water supply" and "water treatment" are subject to
the "Water Supply and Wastewater Operators' Licensing Act" (the
Act), N.J.S.A. 58:11-64 to -73, and implementing regulations,
N.J.A.C. 7:10A, which the Commissioner of the Department of
Environmental Protection (DEP) administers and enforces.
N.J.S.A. 58:11-65 (defining the terms), -66 to -69
(classification of the systems and corresponding licenses), -70
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(license suspension and revocation), -71 (violations, injunctive
relief and penalties).
"Every system" covered by the Act must "be operated and
maintained by at least one licensed operator." N.J.S.A. 58:11-
66(a) (emphasis added). DEP regulations provide criteria for
classifying the systems, 1 to 4, and the corresponding licenses.
N.J.A.C. 7:10A-1.14. The Borough's systems require a W-2
license for the water supply system, a T-2 license for water
treatment and a C-2 license for the wastewater collection
system. See N.J.A.C. 7:10A-1.10(a)(2)-(4).
Montag had all three licenses by early 2000, and he first
served as the Borough's "licensed operator" in May 2010. Prior
to that, Montag was available to back-up the licensed operator.
Under the Act, the "licensed operator" is individually
responsible for the systems. The Act defines a "licensed
operator" as "a licensee approved by [DEP] . . . who is actively
involved in and responsible for the operation, maintenance, and
effectiveness of the system . . . ." N.J.S.A. 58:11-65(c)
(emphasis added). And, the regulation provides that the
"licensed operator shall be in charge of the operation of the
system." N.J.A.C. 7:10A-1.10(b).
A licensed operator who violates the Act or regulations is
subject to license suspension or revocation and monetary
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penalties. N.J.S.A. 58:11-70 to -71. Through the regulations,
the owner of the system, in this case the Borough, is also
subject to sanctions.
DEP regulations establish the "minimum" duties of licensed
operators. For example, licensed operators must "immediately
report any system deficiencies, breaks, breakdowns, problems,
bypasses, pump failures, occurrences, emergencies, [and]
complaints," to the system's "owner," the Borough in this case.
N.J.A.C. 7:10A-1.12(b); see N.J.A.C. 7:10A-1.2 (defining owner
to include a municipality that controls a system). In addition,
the licensed operator must monitor system components and
collect, or oversee collection of, samples and tests of those
samples. N.J.A.C. 7:10A-1.12. DEP employees conduct regular
and unannounced inspections of the systems components and
records to ensure compliance, and one of the licensed operator's
duties is to assist the system-owner's compliance.
The regulations stress the need for the availability of a
licensed operator. N.J.A.C. 7:10A-1.10(f) provides:
Any time the licensed operator is unavailable
to cover the system for which he or she is the
licensed operator, the owner shall obtain the
services of a licensee holding a license not
more than one class lower than the
classification required for the operation of
the system to cover the system during the
unavailability of the licensed operator.
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In Montag's view, he was required to be available "24/7."
John Zuzeck was the Environmental Specialist Inspector employed
by DEP to oversee several systems, including the Borough's
systems. In that capacity, Zuzeck oversaw Montag's work and was
deposed in connection with this litigation.
According to Zuzeck, the Borough did not have an employee
qualified to cover when Montag was unavailable. His co-worker,
Plattman, had only one of the three licenses required to fill-
in, a W-1. Zuzeck acknowledged, however, that DEP would accept
Plattman as substitute but only on a short-term basis. Zuzeck
also indicated the issue of extended leaves had arisen several
times during his ten years' service in various municipalities,
and he explained that the owners of those systems obtained
coverage by qualified substitutes.
In addition to requiring substitutes, the regulations
demonstrate the importance of having a licensed operator
available at all times by requiring two weeks' advance notice of
a licensed operator's withdrawal of his or her services as
licensed operator. In pertinent part, N.J.A.C. 7:10A-1.10
provides:
(i) Licensed operators shall notify [DEP's]
Examination and Licensing Unit at least two
weeks prior to changing their positions or
employment.
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(j) The owner of a system employing a new
licensed operator shall notify, in writing,
the Examination and Licensing Unit of the
name of the new licensed operator within two
weeks after the licensed operator begins his
or her employment.
Zuzeck did not recall directing the Borough to make arrangements
for coverage in advance to anticipate an event requiring
prolonged absence of the licensed operator. Cirulli, however,
admitted DEP had "suggested that it would be good to have a
backup" but indicated it was not "absolutely necessary."
According to Montag, DEP was "after the Borough" to have back-
up. Prior to Montag's appointment as "licensed operator," the
Borough had at least one employee qualified to substitute in the
event of an extended leave.
In any event, the Borough did not have any arrangement for
coverage in place when Montag took ill in the summer of 2012.
On July 20, 2012, Montag had a CAT scan that revealed an
incisional hernia. Thereafter, Montag wore a midsection brace
to work. He and Cirulli had several casual conversations about
his health. Cirulli acknowledged that before making a formal
request for extended leave, Montag mentioned having "a hernia
[that] was causing him some discomfort" and his likely need for
at least six weeks off.
8 A-5315-14T4
On either August 27 or 31, Montag went to Cirulli's office
and told him his pain had increased to the point that he could
barely stand up, and he had to take care of the hernia and would
need at least six weeks to recover. Montag, who had been
diagnosed with a chronic disease about twelve years earlier,
also told Cirulli recent blood work showed signs of liver
failure.
By Montag's account Cirulli responded by asking, "Well, how
can we get you out of here now?" Montag asked Cirulli what he
meant, and Cirulli mentioned buying up Montag's sick and
vacation time and getting someone else to do Montag's job.
Montag told Cirulli he was there to discuss his need for medical
leave for at least eight weeks, and possibly longer, if he had
other problems to address.
Cirulli, who commonly discussed medical conditions with
employees in his role as director of human services,
acknowledged Montag told him about "imminent surgery" and
possible liver problems, but he said Montag left everything up
in the air.
Cirulli admitted telling Montag the leave he sought seemed
long for hernia surgery and telling Montag he knew people who
"were back to work in two or three weeks" after such surgery.
According to Cirulli, Montag also indicated he might not come
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back but his information was too vague to allow Cirulli to
"operate," presumably meaning to do his job. Cirulli also
claimed to have told Montag he was sorry he had a problem when
Montag mentioned liver problems.
Cirulli said if he "knew [Montag] would be out for a great
length of time, especially recovering from surgery, [he] would
have to make other arrangements and get somebody in to cover
him." He further admitted telling Montag it could be the end of
his career and asking Montag how he could assist "in
effectuating that." Cirulli elaborated on his contribution to
that dialog:
[I]f you think you're not going to come back
let me know now and we can work something out
whereby you could be paid for any of your
unused vacation days now and then we'll be
clear to move ahead and do whatever we have
to do in the way of hiring someone new or
making an interlocal agreement with another
town.
There was no question that Montag had sufficient accrued
vacation and sick time to cover leave until the end of the year.
And, Cirulli acknowledged he understood that Montag had
responsibilities to DEP that he would have to meet even if on
sick leave and that DEP could hold him accountable for
violations that took place while he was on sick leave. He
indicated that he thought Montag could do that without being on
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site, but he recognized that Montag could not phone in his
signature.
Between August 27 and 31, Montag took action to give DEP
notice of his inability to serve as the Borough's licensed
operator. On August 27, he prepared a "Licensed Operator in
Charge Employment Notification Form," which in his view was in
compliance with the requirement for two weeks' notice. He
completed a section of the form stating, "This is a notification
that on 8/31/12 I shall no longer be the operator in charge at
[the Borough's water facility]." (Emphasis added). The portion
of the form reserved "For Office Use Only" states, "This request
has been processed and the record updated accordingly," and
further states the notice was recorded on September 10, 2012, a
date fourteen days after August 27.
Montag mailed the form to DEP on August 28 and faxed it to
Zuzeck on August 31. On the fax's cover-sheet Montag explained,
"Limits set upon me do not allow me to do job as I feel is
required."2 At his subsequent disciplinary hearing, Montag
2
This was not the first time Montag raised concerns about
limitations on his ability to perform. In January 2012, he
wrote and advised the Borough limitations placed on him did not
permit proper performance of his duties as licensed operator.
There is evidence indicating that, in January, Montag was asking
for a coverage arrangement or an increase in pay to compensate
him for being on a call 24/7. The Borough suggested that
11 A-5315-14T4
testified he thought he was giving DEP notice that he would not
serve as the Borough's licensed operator from a date two weeks
from August 31, 2012, not on August 31. He stated, "I sent in a
. . . two-week notice to take effect on" August 31, and "the
same day my notice was taking effect [Cirulli was told] I would
be on medical leave. I had no other choice at that point in
time." (Emphasis added).
After his meeting with Cirulli on August 31, Montag faxed
the form to Zuzeck and e-mailed Shell. In his 9:59 a.m. e-mail
to Shell, Montag advised: "I informed [D]on that I will be out
the rest of the year to correct medical problems. Pain has
increased to make work very hard. Do not have timetable yet but
will keep you informed." Shell responded to Montag at 2:46
p.m., copy to Don Cirulli, and wrote:
Thanks for the heads up Jimmy.
Please ensure you formally communicate
this via e:mail [sic] or letter with
particulars on dates you can expect to be out,
starting when, etc. We'll need to be sure we
have sufficient supervisory coverage of our
water and sewers department and are meeting
our regulatory obligations. I'll work with
Don and Mayor Randall on this as soon as we
know the specific date you inform us that you
will depart on leave.
Montag's desire to be paid as much as the chief of police
motivated his withdrawal as "licensed operator." At best,
evidence of this prior incident raised a factual dispute for the
jury to resolve.
12 A-5315-14T4
Also, please let Don know how we should
record your leave i.e. sick time, vacation,
etc. so we have that right.
Best of luck in addressing your medical
issues. Get well.
Cirulli responded, without copy to Montag, "Thanks, Steve.
Don." If Cirulli told Shell he had met with Montag and alerted
Shell to the problem, it was not by way of e-mail included in
this record.
Montag proceeded to act in a manner consistent with his
understanding that his responsibility as the Borough's licensed
operator would end fourteen days after August 31. Montag took a
sick day on September 4, the day after Labor Day, and later
called in to tell his secretary he had an appointment with his
surgeon that Friday, September 7.
Meanwhile, Zuzeck had gone to the Borough about Montag's
fax on September 4. When he arrived, a meeting concerning
Montag was underway, but the participants told Zuzeck they did
not know about Montag's fax withdrawing as the Borough's
licensed operator. Zuzeck advised the participants Plattman
could fill in for Montag temporarily with his W-1 license while
the Borough looked for someone else to fill in who had a T-2
license. Even though the participants claimed ignorance of
Montag's notice to DEP, they were already working on an
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agreement with another municipality for the services of a
licensed operator services when Zuzeck arrived.
Zuzeck did not direct the Borough to shut its systems down
for lack of a licensed operator, which he later said DEP would
never do. Nor did Zuzeck file a violation against the Borough
or Montag. Montag's licenses remained in full force.
On Wednesday, September 5, Montag went to work to do tests
DEP expected the next week. He let Plattman know he was going
to get everything done before he left.
On September 6, Zuzeck went to Montag's house and spoke to
him. Montag appeared tired and depressed, and he asked Zuzeck
if he was there to arrest him. To Zuzeck, Montag's question was
"out of character" for Montag, who had always been "proactive in
trying to look for guidance to operate the system correctly and
maintain it correctly." Zuzeck acknowledged that Montag could
not do his job while in the condition he observed on September
6. In all his years' of working with Montag, Zuzeck never saw
any reason for concern about Montag doing something to harm the
Borough's systems.
On September 6, Montag spoke to the mayor by telephone and
agreed to meet on September 7 at 8:30 a.m., even though he had
an appointment with his surgeon at 10:30 a.m. Montag arrived
for the meeting before Shell, and when Shell arrived he asked
14 A-5315-14T4
Montag where his "Borough vehicle" was. Montag explained he
came in his own truck, and Shell passed this comment — "get used
to the future."
Montag was asked about his condition and timeframe, but
Montag "did not know exactly what medical issues [he was facing]
and how serious they were." In his view at that time before his
appointment with the surgeon and liver doctor, his condition
"could be as serious as the end of life for [him]."
Montag told the officials he would be happy to keep them
informed but "could not in good conscience be licensed operator
in charge if [he] was not [there] to oversee the system." He
further explained he would change his mind if there were "a
licensed backup operator." Montag was told he had "lost any
opportunity to be in charge of [the Borough's] system ever
again," and that ended the conversation.
Montag kept his appointment with the surgeon and was given
a September 20 date for his surgery and dates for follow-up with
his general practitioner and testing by a liver doctor. He
returned to the Borough's office after the appointment and gave
Cirulli the information the doctor had written down for him,
which Cirulli copied and returned. Montag saw Shell as he was
leaving Cirulli. Shell made another comment — "that's the last
note you'll ever need."
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Despite Shell's remark, Montag continued to work part-time
to complete testing DEP required. Montag explained his notice
to DEP did not put the Borough out of compliance with its
obligations under the Act and would not put them out of
compliance unless they refused to appoint another licensed
operator. According to Zuzeck, by September 13, 2012, the
Borough had a fully licensed operator to replace Montag subject
to DEP's approval, which was granted.
Moreover, despite the Borough's solving the problem of
coverage, on September 18, two days before Montag's scheduled
surgery, the chief of police went to his home and delivered an
"Immediate Suspension Notice" and a "Preliminary Notice of
Disciplinary Action," specifically notice of the Borough's
intention to terminate his employment.
The Borough's notice alleged Montag filed paperwork
relinquishing his position as operator in charge and was,
therefore, unable to fulfill "and purposefully refused to
fulfill and maintain, those qualifications for the position of
the Superintendent of the [WSD]." The Borough further alleged
that Montag failed to give the Borough prior notice of his
action. Montag admitted he had not told anyone that he was
sending the form to DEP but had said he would be unavailable.
The notice advised Montag could request a hearing, which
16 A-5315-14T4
would be held on October 3, 2012, a date the Borough then knew
was within two weeks of his scheduled surgery. At Montag's
request, the hearing was postponed until December. Cirulli and
Montag were the only witnesses.
The disciplinary hearing was conducted by a "Special
Hearing Committee," which included three members of the
Borough's Council — Shell, Weiss and Lennon. The Council
adopted the Special Committee's recommendation to terminate on
December 18, 2012, and this litigation followed.
II.
The LAD "prohibit[s] any unlawful discrimination against
any person because such person is or has been at any time
disabled or any unlawful employment practice against such
person, unless the nature and extent of the disability
reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1. The LAD defines disability to
include a "physical disability [or] infirmity . . . caused by
bodily injury . . . or illness . . . ." N.J.S.A. 10:5-5(q).
Montag could prove a discriminatory discharge case based on
direct evidence by showing the Borough "placed substantial
reliance on a proscribed discriminatory factor in making its
decision" to terminate him. Smith v. Millville Rescue Squad,
225 N.J. 373, 394 (2016). In this case, the discriminatory
17 A-5315-14T4
factor was Montag's actual or perceived disability — his need to
take time to recover from hernia surgery and to identify and
address a suspected liver problem.
"Direct evidence of discrimination may include evidence 'of
conduct or statements by persons involved in the decisionmaking
process that may be viewed as directly reflecting the alleged
discriminatory attitude.'" Id. at 394 (quoting Fleming v. Corr.
Healthcare Sols., Inc., 164 N.J. 90, 101 (2000)). That evidence
must demonstrate "not only a hostility toward members of the
employee's class, but also a direct causal connection between
that hostility and the challenged employment decision." Ibid.(quoting Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208
(1999)). To defeat that showing, the Borough would then be
required to "produce evidence sufficient to show that it would
have made the same decision if illegal bias had played no role
in the employment decision." Id. at 395 (quoting Fleming,
supra, 164 N.J. at 100). That would be difficult to prove given
Cirulli's admission that he suggested Montag resign and accept
the value of his accrued sick and vacation leave. In the end,
the Borough achieved that by terminating Montag and crediting
him with his accrued time.
The Borough's ground for termination was Montag's mailing
and transmitting the fax notifying DEP of his intention to cease
18 A-5315-14T4
service as the Borough's licensed operator without giving the
Borough prior notice. Viewed in light of Montag's obligation to
give DEP two weeks' notice, the Borough's failure to have a plan
for covering Montag's responsibilities in the event of disabling
accident or illness, and Montag's actual notice to Cirulli and
Shell of his inability to serve while recovering from, as
Cirulli put it, "imminent" surgery, the Borough's non-
discriminatory reason for terminating this nineteen-year
employee was quite slim.
A jury could reasonably find it too slim considering the
Borough suffered no adverse consequence and, by terminating
Montag, achieved the result Cirulli wanted — avoidance of
arranging coverage by a licensed operator to accommodate Montag
post-operation and during any treatment required for his then-
suspected liver condition. After all, there was evidence the
Borough previously retained more than one employee qualified to
serve as a licensed operator.
In short, the evidence does not permit the conclusion that
the Borough was entitled to a judgment on Montag's claim of
direct discrimination as a matter of law.
Montag also had the option to establish discrimination on
an alternative basis: circumstantial evidence of discriminatory
discharge. Under New Jersey law, a plaintiff can prove a case
19 A-5315-14T4
based on circumstantial evidence of discriminatory discharge
based on disability as follows. The first step requires proof
of a prima facie case — proof of 1) a disability, actual or
perceived, 2) job performance meeting the employer's legitimate,
reasonable expectations at the time of termination, 3)
termination and 4) the employer's looking for a replacement.
Grande v. Clare's Health Sys., __ N.J. __, __ (2017) (slip op.
at 25). By presenting enough evidence to raise a jury question
on each of those elements, Montag was entitled to a presumption
that the Borough's action was discriminatory. Id. at 25-26.
Because the Borough's defense was a non-discriminatory
reason for terminating Montag, "the burden of production -- not
the burden of proof or persuasion -- shift[ed] to the employer"
to raise a legitimate reason for terminating Montag. Ibid.
(quoting Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363,
382 (1988)). Because the Borough did that, Montag had to prove
the Borough's reason was false, a pretext for discrimination.
See ibid.We conclude Montag raised a jury question on pretext. From
his testimony and evidence of his continued effort to meet DEP
testing deadlines, a reasonable jury could find Montag believed
he gave DEP notice of withdrawal to take effect fourteen days
later than August 27 or 31. Thus, he had not withdrawn as
20 A-5315-14T4
licensed operator without giving the Borough prior notice. He
had several days to alert the Borough or withdraw his notice.
Accordingly, the Borough was not entitled to summary judgment on
a claim of discriminatory termination based on circumstantial
evidence.
Finally, we cannot conclude that the Borough was entitled
to summary judgment on Montag's claim of failure to accommodate.
The Borough did not even consider the accommodation implicit in
Montag's dialog with Cirulli, which was coverage that would
allow him to take essential sick leave without concern for
violating his obligations as the licensed operator. A jury
could infer that accommodation was reasonable based on the
Borough's conduct in arranging such coverage in the past.
Moreover, to the extent the Borough's legitimate reason was
based on Montag's failure to provide adequate information about
the leave he would need, a jury believing Montag's account could
reasonably reject that claim as pretext. At that point in time,
Montag did not have a date for the operation and did not know
whether his ominous blood results suggesting liver failure would
prove fatal, which Montag believed was a real possibility.
The Borough was not entitled to summary judgment on
Montag's claim of failure to accommodate.
Reversed and remanded.
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