KENNETH REID VS. CITY OF PLAINFIELD (L-3967-17, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." 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-2691-19
KENNETH REID,
Plaintiff-Appellant,
v.
CITY OF PLAINFIELD,
ADRIAN MAPP, and
CARL RILEY,
Defendants-Respondents.
__________________________
Submitted March 1, 2021 – Decided September 14, 2021
Before Judges Messano, Hoffman, and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3967-17.
O'Connor, Parsons, Lane & Noble, LLC, attorneys for
appellant (Gregory B. Noble and Robert A. Ballard, III,
of counsel; Meredith Mona, on the briefs).
Rainone Coughlin Minchello, LLC, attorneys for
respondents City of Plainfield and Adrian Mapp (John
F. Gillick, of counsel and on the brief).
Antonelli Kantor, PC, attorneys for respondent Carl
Riley (Jarrid H. Kantor and Yulieika Tamayo, on the
brief).
PER CURIAM
Plaintiff Kenneth Reid appeals the January 24, 2020 summary judgment
orders of the Law Division that dismissed his second amended complaint
(complaint) with prejudice. His complaint alleged violations of the New Jersey
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, against defendants,
the City of Plainfield (City), Adrian O. Mapp, the Mayor of Plainfield, and Carl
Riley (Riley), the Police Director of Plainfield. We reverse these orders and
remand for further proceedings.
I.
Plaintiff was employed by the City of Plainfield Police Department
(Department) as a lieutenant. On December 2, 2015, the Department received a
call about a motor vehicle accident involving an intoxicated driver. The officers
who responded to the scene noted the driver was not conscious or able to
communicate. Suspecting the driver was intoxicated, they requested a blood
draw search warrant, but the Assistant Prosecutor would not approve this
without properly identifying the driver. The officers later misrepresented they
had obtained the driver's identity, and a search warrant was issued.
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One of the officers became uncomfortable with what occurred and advised
plaintiff. Plaintiff never notified the Union County Prosecutor's Office about
what occurred, although he said he would. The Prosecutor's Office became
aware of the issue and investigated it. It did not authorize criminal charges, but
because plaintiff had not notified the Prosecutor's Office, it recommended
administrative discipline against him for the failure to supervise, and against the
other officers for their involvement.
The Department commenced an internal investigation. Approximately a
week later, plaintiff was admitted to the hospital having suffered a minor stroke.
While he was hospitalized, Riley and another officer visited. Plaintiff testified
Riley and the other officer asked him how old he was and when he was
considering retirement. He testified Riley referenced the potential disciplinary
charges and told him these charges could "go away" if he retired. Plaintiff
interpreted these statements as a threat.
On February 24, 2016, plaintiff received a preliminary notice of
disciplinary charges pending a final hearing. The charges included negligence
in his duties as a watch commander, failure to take appropriate action of illegal
activity, failure to provide proper training, wasting public resources, failure to
report perjury, failure to report to the Police Director, providing misleading
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information to the Prosecutor's Office, and failure to notify them of perjury. He
was charged with conduct unbecoming a public employee, N.J.A.C. 4A:2-
2.3(a)(6), and "other sufficient cause" for failing to properly supervise, N.J.A.C.
4A:2-2.3(a)(12).
Plaintiff and the City, including the Department, entered into a Stipulation
of Settlement (Stipulation) on April 29, 2016, that settled the disciplinary
charges. Plaintiff was represented by counsel. Under the Stipulation, plaintiff
retired from the Department and agreed to withdraw his request for a hearing of
the disciplinary charges. He acknowledged he "did not engage in the proper
supervision of subordinates," and he did not advise the Prosecutor's Office or
others about the "conduct of subordinate officers under [his] command." He
acknowledged the "[d]isciplinary [c]harges were not racially motivated." The
Stipulation provided the Department withdraw all pending disciplinary issues
against plaintiff. He retired in "good standing."
The Stipulation included "Release" and "Knowing and Voluntary Waiver"
provisions. Relevant here, paragraph ten provided:
Release. As inducement for the City to enter into this
Agreement, Employee hereby withdraws his request for
a hearing on this disciplinary matter waives (sic).
Further he waives his right to appeal pursuant to
N.J.S.A. 40A:14-150, and accepts the above-described
terms of settlement of this matter, and does remise,
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release and forever discharge the City and its members
of the governing body, including all of its divisions,
departments, employees and agents from any and all
debts, obligations, suits, actions, causes of action,
claims or demands, in law or in equity, which Employee
now has, or hereafter can, shall or may have, with
respect to the subject matter of this disciplinary action.
Paragraph eleven provided:
Knowing and Voluntary Waiver. Employee
acknowledges that in the execution of this Agreement
he is effecting a knowing and voluntary waiver of any
claims, liabilities or causes of action against the City
and any of its members of the governing body,
employees, agents, successors and assigns of the
Township by reason of the subject matter of this
disciplinary action or issue. Employee further
acknowledges that he has discussed the terms of this
Agreement with his attorney, . . . and that [he] has
answered any questions [plaintiff] may have regarding
this matter to [plaintiff]'s full satisfaction. [Plaintiff]
also hereby agrees and acknowledges that he has been
fully, fairly and adequately represented by [his
attorney] in this matter.
On November 7, 2017, plaintiff filed a discrimination complaint against
defendants. It was amended twice. As amended, Count One alleged age
discrimination contrary to the LAD "because [plaintiff] was [fifty-eight] at the
time of his forced retirement." Count Two alleged that plaintiff was the victim
of "hostile work environment disability and/or perceived disability harassment
and discrimination" by defendants because they allegedly harassed and
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intimidated him during his medical leave. Count Three alleged defendants were
liable for "aiding and abetting" discrimination or harassment of plaintiff.
Plaintiff sought back pay, front pay, compensatory and punitive damages,
attorney's fees and costs.
On December 27, 2019, defendants filed motions for summary judgment
predicated on the Stipulation. On January 24, 2020, following oral argument,
the trial court granted defendants' summary judgment motions, dismissing
plaintiff's complaint with prejudice. In its statement of reasons, the trial court
determined "[p]laintiff entered into a valid waiver and release of all claims
against [d]efendants, including claims under the LAD." It found plaintiff
entered into "a 'knowing and voluntary waiver of any claims, liabilities or causes
or action[.]'" Noting that plaintiff was represented by counsel and was aware of
pending disciplinary charges, the trial court found plaintiff was allowed to retire
in good standing, "[i]n exchange for the dismissal of the pending disciplinary
charges." The trial court found,
[p]laintiff cannot defeat this summary judgment motion
by arguing that the language in the Stipulation of
Settlement is not clear or unambiguous. The Court
finds that there are no genuine issues of material fact
regarding the language of the agreement or the intent of
the parties in entering into the agreement.
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Plaintiff argues on appeal that the trial court erred in finding the
Stipulation was a waiver by plaintiff of all his claims against defendants under
the LAD. He contends the judge should have found the Stipulation's language
was "unclear and ambiguous" because it did not mention age or disability
discrimination. Plaintiff contends the hostile work environment claim is a
separate and distinct claim that is not encompassed by the Stipulation, and there
are genuine issues of material fact that should have precluded summary
judgment.
II.
We review a court's grant of summary judgment de novo, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (quoting R. 4:46-2(c)).
The central issue in this case is whether plaintiff released all claims
against defendants by entering into the Stipulation. "The scope of a release is
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determined by the intention of the parties as expressed in the terms of the
particular instrument, considered in the light of all the facts and circumstances."
Bilotto v. Accurate Forming Corp., 39 N.J. 184, 203 (1963). Questions about
intent "cannot ordinarily be fairly disposed of on affidavits in a summary
judgment application." Id. at 204 (citation omitted).
In interpreting the intent of the parties to a contract, the contract "must be
read as a whole, in 'accord with justice and common sense.'" Cumberland Ctny.
Improvement Auth. v. GSP Recycling Co., Inc., 358 N.J. Super. 484, 497 (App.
Div. 2003) (quoting Krosnowski v. Krosnowski & Garford Trucking, Inc., 22
N.J. 376, 387 (1956)). "A general release, not restricted by its terms to particular
claims or demands, ordinarily covers all claims and demands due at the time of
its execution and within the contemplation of the parties." Bilotto, 39 N.J. at
204 (citations omitted).
The trial court relied on Swarts v. Sherwin-Williams, Co., 244 N.J. Super.
170 (App. Div. 1990), in reaching its conclusion that plaintiff knowingly and
voluntarily waived his claims against defendants. In Swarts, the plaintiff signed
a release and covenant not to sue his prior employer to obtain a special severance
allowance as part of his retirement. 244 N.J. Super. at 172. We affirmed the
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trial court's dismissal of the plaintiff's complaint by adopting a "totality of the
circumstances approach for determining the validity of such waivers." Ibid.The waiver the plaintiff signed in Swarts provided it was in "full
satisfaction of any and all claims or demands" that he had "arising either directly
or indirectly out of [his] present or past employment relationship." Id. at 175.
He then sued his former employer alleging age discrimination under the LAD.
In an affidavit, the plaintiff alleged there was a genuine issue of material fact
about whether he intended to waive the age discrimination claim even t hough it
apparently was not disputed he had "full awareness" of these rights based on a
letter he sent to the former employer. Id. at 178. We were "satisfied the trial
judge correctly concluded plaintiff voluntarily and knowingly waived any age
discrimination claim he had." Ibid.In the present appeal, the trial court dismissed plaintiff's complaint finding
the Stipulation was a "valid waiver and release" of all of plaintiff's claims
including all LAD claims. The court quoted from the Stipulation that it was a
"voluntary waiver of any claims, liabilities or causes of action[.]" However, the
actual sentence said that plaintiff released defendants from claims plaintiff
"now has, or hereafter can, shall or may have, with respect to the subject matter
of this disciplinary action." The waiver paragraph contained the same reference
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to "disciplinary action." This was a critical omission by the trial court and
distinct from Swarts where the waiver was of claims arising from the
"employment relationship." Reference in the Stipulation to the "disciplinary
action" might have been intended as a limitation.
The trial court also did not consider whether there were genuine issues of
material fact about plaintiff's claims. Plaintiff contended there was an ongoing
scheme by defendants to pressure and harass him into retiring. He argued the
evidence showed a prima facie case of age and disability discrimination and
hostile work environment claim. At the summary judgment stage, the trial court
is to view the evidence "in a light most favorable to the non-moving party" to
determine if there are genuine issues of material fact. Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). The trial court did not undertake this
type of analysis. We are constrained to reverse the summary judgment orders
and remand. The trial court may consider any other arguments defendants raised
when they sought summary judgment which were not addressed.
Reversed and remanded. We do not retain jurisdiction.
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