GEORGE E. PEARSON v. BOROUGH OF KEANSBURG (L-4135-18, MONMOUTH COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3762-20
GEORGE E. PEARSON,
Plaintiff-Appellant,
v.
BOROUGH OF KEANSBURG,
BOROUGH OF KEANSBURG
POLICE DEPARTMENT,
KEANSBURG BOARD OF
EDUCATION, and JOHN NIESZ,
KEANSBURG
SUPERINTENDENT OF
SCHOOLS,
Defendants-Respondents.
______________________________
Argued October 6, 2022 – Decided October 24, 2022
Before Judges Sumners, Geiger, and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-4135-18.
John C. Feggeler, Jr., argued the cause for appellant.
Michael A. Pattanite, Jr., argued the cause for
respondents Keansburg Board of Education and John
Niesz, Keansburg Superintendent of Schools (Lenox,
Socey, Formidoni, Giordano, Lang, Carrigg & Casey,
LLC, attorneys; Michael A. Pattanite, Jr., on the brief).
Brian P. Trelease argued the cause for respondents
Borough of Keansburg and Borough of Keansburg
Keansburg Police Department (Rainone Coughlin
Minchello, LLC, attorneys; Brian P. Trelease, of
counsel and on the brief).
PER CURIAM
Plaintiff George E. Pearson appeals from Law Division orders: (1)
granting summary judgment dismissing his claims against defendants
Keansburg Board of Education (Board), Superintendent of Schools John Niesz
(Niesz), Borough of Keansburg (Borough), and Borough of Keansburg Police
Department (KPD); and (2) denying plaintiff's motion for partial summary
judgment. We affirm each of the orders.
We glean the following facts from the summary judgment record, viewing
them in the light most favorable to the non-moving party. See Richter v.
Oakland Bd. of Educ., 246 N.J. 507, 515 (2021).
Pritchard Industries, Inc. (Pritchard) had a contract (the Contract) with the
Board to provide custodial services for the schools in the Borough of Keansburg
School District (District). Plaintiff, who is African American, was employed as
a custodian by Pritchard from July 30, 2015 to November 28, 2016. Plaintiff
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was assigned by Pritchard as the head custodian at the District's Joseph Caruso
Elementary School (elementary school).
The Contract expressly provided that "Pritchard will perform its services
hereunder as an independent contractor, and nothing in this Agreement shall be
deemed to make Pritchard, or its employees, a common law employee, agent,
partner or fiduciary of, or joint venturer with, District." The Contract further
provides that all personnel actions with respect to the Pritchard employees "shall
be the sole responsibility of Pritchard." The Contract also states: "If a Pritchard
Manager or Service employee should become unacceptable to District's Chief
Executive Officer or such officer's designated representative, then District's
Chief Executive Officer or designated representative may request his or her
removal and Pritchard will provide a mutually acceptable replacement within a
reasonable time thereafter." The term "unacceptable" is not defined in the
Contract. The Contract requires the District to "provide Pritchard with
reasonable office space, storage and locker space, warehouse and distribution
space and services at District Facilities, at no cost to Pritchard" while they
perform work for the District.
Plaintiff was furnished with a key to the elementary school. On Sunday,
November 27, 2016, plaintiff used that key to gain unauthorized entrance to the
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elementary school during non-school hours to run laps with his son in the
school's gymnasium.
Plaintiff was previously assigned to the District's high school. There he
requested and was granted permission by the high school's athletic director, to
use the high school gym. That permission did not extend to the District's other
schools. Plaintiff did not request permission to use the elementary school's gym
after his transfer to that school.
Pritchard issued guidelines to its employees. The guidelines state: "Never
use customer property for any reason." They also state: "Always return keys
that are given to you each night after you have finished your work."
On the date of the incident, a security guard was on duty at the elementary
school. The guard observed plaintiff and his son using the gym and contacted
police stating that she did not know if plaintiff's entry into the school was
authorized. KPD Officer Francis Wood responded to the elementary school.
Plaintiff advised Wood that he was permitted to be in the gym because he was
the school's custodian. Shortly after speaking with plaintiff, Wood departed
from the elementary school without further action. Plaintiff and his son
remained at the elementary school and proceeded to work out in the gym.
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The following day, Niesz spoke with the security guard about what had
transpired. Niesz instructed Officer John Sorano, the District's school resource
officer, to review the video tape recording from the elementary school from the
prior evening. Officer Sorano reviewed the video tape and reported to Niesz
that the video footage showed plaintiff "was in the gym." Plaintiff was removed
from performing services under the Contract and terminated by Pritchard.
That same day, the District informed Pritchard that they were barring
plaintiff from working in the District for entering the elementary school
premises at an off-hour while school was not in session. It is undisputed that
plaintiff's access to the school on November 27, 2016, was not related to his
employment with Pritchard. This litigation followed.
On May 2, 2019, plaintiff filed a seven-count complaint alleging: (1) a
discrimination claim against the KPD, Board, and Niesz under the New Jersey
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; (2) a hostile work
environment claim under LAD against the Board and Niesz; (3) claims against
the Board and Niesz under Title VII of the Civil Rights Act of 1964 and 42
U.S.C. §§ 2000e to 2000e-17; (4) a violation of civil rights claim against the
Board and Niesz under 42 U.S.C. § 1983; (5) tortious interference with a
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contractual relationship against the Board and Niesz; (6) negligence against the
Board and Niesz; and (7) negligence against the Borough and KPD.
In August 2019, the Board and Niesz moved pursuant to Rule 4:6-2(e) to
dismiss the LAD hostile work environment claim, Section 1983 claim, tortious
interference with a contractual relationship claim, and negligence claim, for
failure to state a claim upon which relief may be granted. The court issued an
order dismissing the LAD hostile work environment and negligence claims
against the Board and Niesz. Discovery related to the remaining claims
continued.
Plaintiff acknowledged during his deposition that after being moved from
the high school to the elementary school, he never sought permission from the
principal or his Pritchard supervisor to use the elementary school gym. Nor did
plaintiff fill out any type of District form requesting to use the elementary school
gym.
Plaintiff testified he reported to the elementary school principal. Plaintiff
also took direction from whomever had a problem inside the elementary school.
Niesz acknowledged at his deposition the KPD officers have permission
to use District facilities such as school gymnasiums. The KPD was entirely
Caucasian at the time.
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Niesz testified that he did not have the authority to fire plaintiff as plaintiff
worked for Pritchard, not the District. He acknowledged he requested that
plaintiff be removed from performing services in the District under the Contract.
Niesz testified there is a blanket District policy providing that no one is
permitted to enter District buildings and use District facilities "without filling
out what's called a use premise request."
Niesz testified that he was a defendant in litigation brought against him as
the Superintendent of the Bayonne City Schools by a person who claimed she
was passed over for a position.
Following the completion of discovery, plaintiff moved for partial
summary judgment against the Board and Niesz on his tortious interference with
a contractual relationship claim. Defendants moved for summary judgment on
all remaining claims. On July 13, 2021, the court issued an oral decision and
orders that denied plaintiff's motion and granted defendants summary judgment
dismissing all remaining claims with prejudice.
This appeal followed. Plaintiff raises the following points for our
consideration:
POINT ONE
STANDARD OF APPELLATE REVIEW.
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POINT TWO
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS AS TO PLAINTIFF'S CAUSE OF
ACTION FOR TORTIOUS INTERFERENCE WITH
THE CONTRACT BETWEEN THE PLAINTIFF AND
PRITCHARD INDUSTRIES.
A. Actual Interference with Pritchard-Plaintiff
Contract.
B. Interference was Inflicted Intentionally.
C. Interference was Without Justification.
D. The Interference Caused Damage.
POINT THREE
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS BOROUGH OF KEANSBURG AND
BOROUGH OF KEANSBURG POLICE
DEPARTMENT AS GENUINE ISSUES OF
MATERIAL [FACT] REMAIN IN DISPUTE.
POINT FOUR
DEFENDANTS BOROUGH OF KEANSBURG AND
BOROUGH OF KEANSBURG POLICE
DEPARTMENT OWED A DUTY OF CARE TO THE
PLAINTIFF.
POINT FIVE
THE TRIAL COURT ERRED IN FINDING THAT
PLAINTIFF WAS NOT AN EMPLOYEE FOR THE
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PURPOSES OF LAD, TITLE VII OF CIVIL RIGHTS
ACT OF 1964, AND 42 U.S.C. § 1983 PROTECTION.
POINT SIX
THE TRIAL COURT ERRED IN HOLDING THAT
PLAINTIFF DID NOT SATISFY THE BURDEN
IMPOSED UPON HIM TO ESTABLISH
DISCRIMINATION.
We affirm substantially for the reasons expressed by the judge in her
comprehensive oral decision. We add the following comments.
A motion for 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." R. 4:46-2(c). The court must "consider whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[] all legitimate inferences from the facts in favor of the non -moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)
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(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's
function is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,
Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540).
We review the grant or denial of a motion for summary judgment de novo,
applying the same standard used by the trial court. Samolyk v. Berthe, 251 N.J.
73 (2022). We consider "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged disputed issue in favor of
the non-moving party." Brill, 142 N.J. at 540.
Tortious Interference with Contractual Relations
In count five of his amended complaint, plaintiff alleges the Board and
Niesz tortiously interfered with his employment contract with Pritchard.
To establish a claim for tortious interference with
contractual relations, a plaintiff must prove: (1) actual
interference with a contract; (2) that the interference
was inflicted intentionally by a defendant who is not a
party to the contract; (3) that the interference was
without justification; and (4) that the interference
caused damage.
[Russo v. Nagel, 358 N.J. Super. 254, 268 (App. Div.
2003) (citing 214 Corp. v. Casino Reinvestment Dev.
Auth., 280 N.J. Super. 624, 628 (Law. Div. 1994)).]
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As to the second prong of that test, the judge noted plaintiff asserted that
Niesz individually and as a representative of the Board, was not a party to the
Pritchard/plaintiff employment contract yet requested that plaintiff be
terminated from employment at the District's schools. The judge noted,
however, that Niesz requested that plaintiff be removed from employment at the
district under the Pritchard/District contract, not terminated from employment
with Pritchard altogether. We agree. The record shows that Niesz directed
Pritchard to remove plaintiff from working at any of the District's schools
because he was not acceptable. Neither Niesz nor the Board asked or demanded
that plaintiff be fired by Pritchard. Pritchard made the decision to terminate
plaintiff's employment.
The judge found that viewing the facts in the light most favorable to
plaintiff, there was no evidence to suggest that Niesz or the Board requested
Pritchard to fire plaintiff or otherwise intended to interfere with plaintiff's
employment contract with Pritchard. The judge explained that although
defendants' request to remove plaintiff from working at District schools "may
have influenced Pritchard's decision to terminate plaintiff does not amount to a
showing of intentional interference" with plaintiff's employment by Pritchard
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"as a matter of law." Accordingly, the judge found plaintiff could not satisfy
the second prong. We agree.
As to the third prong, which requires that the interference is without
justification, the judge noted Niesz clarified that plaintiff could not be allowed
to remain working at District schools because he and his son entered the
elementary school without permission. The fact that the security guard and
responding police officer did not remove plaintiff and his son from the building
was not controlling. Plaintiff was aware of Pritchard's policy that employees
should never use customer property for any reason for non-work purposes. The
judge found that having an authorized work key to access the school for work
purposes did not equate to permission for plaintiff to use the key to access the
school for non-work purposes.
Nor did the fact that plaintiff at one time had permission to use the high
school gym confer plaintiff with the right to use any gym at any school in the
district without obtaining permission from the District or its authorized
representative. The judge also found that there was no indication in the record
that plaintiff sought permission to use the elementary school's gym from his
Pritchard supervisor.
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The judge nevertheless concluded there was a question of fact whether
plaintiff's removal from working at the District's schools was justified under the
terms of the Contract due to being caught trespassing on school property in
violation of District policy. We part company with the judge in that respect.
The judge found "there is no evidence that defendants intended for plaintiff to
be terminated from his employment with Pritchard" rather than just being
removed from working at the District's schools. The record supports that
finding.
Undisputed facts in the record demonstrate that plaintiff did not request
or obtain permission to use the elementary school's gymnasium when the school
was closed. Plaintiff and his son entered the school when it was closed to use
the gym in violation of District policy and Pritchard's employee policy. The
Board's decision to remove plaintiff from working at its schools was justified
under these circumstances. Therefore, plaintiff cannot satisfy the third prong.
plaintiff was unable to satisfy the second and third prongs. His tortious
interference claims against the Board and Niesz were properly dismissed.
LAD, Title VII, and Section 1983 Claims Against the Board and Niesz
The LAD prohibits unlawful employment discrimination. N.J.S.A. 10:5-
12; Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002). "The LAD was enacted
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to protect not only the civil rights of individual aggrieved employees but also to
protect the public's strong interest in a discrimination-free workplace." Lehman
v. Toys R Us, Inc., 132 N.J. 587, 600 (1993) (citing Fuchilla v. Layman, 109
N.J. 319, 334 (1988)). The LAD prohibits an employer from engaging in
discrimination based on race against any individual by "refus[ing] to hire or
employ or to bar or to discharge . . . from employment such individual."
N.J.S.A. 10:5-12.
New Jersey has adopted the procedural burden-shifting methodology set
forth in McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973). Zive v.
Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). To establish a prima facie case
of discriminatory discharge, plaintiff must prove: "(1) he was in the protected
group; (2) he was performing his job at a level that met his employer's legitimate
expectations; (3) he nevertheless was fired; and (4) the employer sought
someone to perform the same work after he left." Zive, 182 N.J. at 450.
The judge noted that in Pukowsky v. Caruso we stated that "independent
contractors are not to be considered 'employees' within the meaning of the LAD,
and are therefore not entitled to avail themselves of its protections." 312 N.J.
Super. 171, 180 (App. Div. 1998) (citing Lehman,132 N.J. at 600-01). We agree
that independent contractors cannot recover under the LAD.
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Plaintiff argues that the judge incorrectly concluded that he did not qualify
as an employee of the Board to obtain protection under the LAD. We disagree.
The judge applied the twelve-factor test adopted in Pukowsky for determining a
worker's status as an employee or an independent contractor. 312 N.J. Super. at
182-83. Upon doing so, the judge found that the factors "overwhelmingly weigh
in favor of plaintiff's status as an independent contractor." The record supports
those findings.
The judge also found that the plain language of the Contract identified
Pritchard's workers as independent contractors. The judge found this
designation to be "fatal" as to counts one, three, and four of plaintiff's amended
complaint. We concur that plaintiff cannot recover against the Board or Niesz
under the LAD.
Plaintiff was employed by Pritchard, not the Board. Pritchard was an
independent contractor of the Board. The LAD did not create a cause of action
for employment discrimination against entities or persons that are not the
claimant's employer. See Pukowsky, 312 N.J. Super. at 180; N.J.S.A. 10:5-12(a)
(stating it is "unlawful discrimination [f]or an employer" to discriminate against
an individual because of race). Plaintiff had no viable cause of action against
the Board or Niesz because they were not his employer.
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Regarding the substance of plaintiff's claims under LAD, Title VII, and
Section 1983, the judge found no evidence that would support a finding of any
form of discrimination by the Board or Niesz, much less discrimination based
on race. The judge noted that plaintiff's arguments in support of his LAD, Title
VII, and Section 1983 claims were similar to his tortious interference arguments.
The judge reiterated that "there is no evidence that defendants intended for
plaintiff to be terminated from his employment with Pritchard." On the contrary,
the judge stated "there's nothing to show any intent, any malice, any . . .
intention" on the part of Niesz "that he intended that . . . plaintiff be terminated
from his contract with . . . Pritchard. It's just not there." Because there was no
evidence of malicious and intentional interference by the Board or Niesz, the
court concluded that defendants' motions for summary judgment should be
granted.
We concur. Aside from the fact that the Board was not plaintiff's
employer, plaintiff has not produced any evidence that the Board or Niesz
engaged in racial discrimination or violated his civil rights.
The fact that the District allowed KPD officers, who were all Caucasian,
to use the weight room at the high school does not demonstrate the Board treated
plaintiff differently. First, the KPD officers were given permission to use that
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facility. Second, plaintiff himself was given permission to use the gymnasium
at the high school when he asked for it. When plaintiff was transferred to the
elementary school, he neither sought nor obtained permission to use the
elementary school's gym. Contrary to school policy, he and his son used the
gym anyway.
Plaintiff's reliance on Niesz being named as a defendant in a separate
action involving the Bayonne School District is misplaced. The unproven
allegations raised in that action relate to unconnected subsequent events.
Negligence Claim Against the KPD
Relying on Adams v. City of Camden, 461 F. Supp. 2d 263, 266 (D.N.J.
2006) (citing N.J.S.A. 40A:14-118), the judge explained that "a municipal police
department is not an entity separate from the municipality." Therefore, the court
concluded "a police department cannot be sued in conjunction with a
municipality because they are . . . administrative arms of local municipalities,
not separate entities." Plaintiff did not oppose dismissal of the KPD. The judge
dismissed the claims against the KPD with prejudice. The KPD is not a separate
legal entity from the Borough. Claims seeking liability for actions of municipal
police officers are properly brought against the municipality, not the police
department. Naming the police department as a defendant is legally equivalent
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to naming the municipality. Accordingly, we analyze plaintiff's negligence
claims as though they were brought against the Borough.
Negligence Claim Against the Borough
Negligence claims against public entities in New Jersey are governed by
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. As a general
proposition, liability of public entities is the exception and immunity from
liability is the rule under the TCA. Fluehr v. City of Cape May, 159 N.J. 532,
539 (1999); see also N.J.S.A. 59:1-2 (declaring it "to be the public policy of this
State that public entities shall only be liable for their negligence within the
limitations of [the TCA] and in accordance with the fair and uniform principles
established [t]herein"); D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130,
133-34 (2013) (explaining that the overall approach of the TCA is to broadly
limit public entity liability). To that end, the public policy adopted by the
Legislature is to construe the immunity provisions of the TCA broadly and the
liability provisions narrowly. Gerber v. Springfield Bd. of Educ., 328 N.J.
Super. 24, 34 (App Div. 2000).
The trial court noted that plaintiff did not respond to any of the defenses
raised by the Borough under the TCA. Instead, plaintiff raised a new argument
regarding the actions of Officer Sorano, which was not pled in the original or
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amended complaint. Sorano was not named as a defendant in the amended
complaint.
Plaintiff alleges that Sorano negligently relayed what he had seen on the
surveillance footage to Niesz. Plaintiff claims it is for the jury to determine
whether Sorano purposely provided a false account of the video surveillance
footage to Niesz. The Borough responded that there is nothing in the record that
suggests Sorano was not truthful when he testified that he told Niesz that
plaintiff remained in the gymnasium. The Borough further argued that it is not
liable for the intentional acts of its employees under the TCA. See N.J.S.A.
59:2-10 ("A public entity is not liable for the acts or omissions of a public
employee constituting . . . actual malice, or willful misconduct."). The Borough
also argued that plaintiff's theory that Sorano and Niesz conspired together to
exonerate Niesz failed for the same reason of intentionality.
The judge found that plaintiff mischaracterized Sorano's deposition
testimony. Sorano testified that the camera footage of the incident showed
plaintiff and his son in the elementary school gym and that plaintiff's son was
doing some type of physical activities in the gym. The judge noted Sorano did
not testify that he told Niesz plaintiff was allowed to remain in the gym.
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In addition, the judge found plaintiff's claims involving Sorano were
improperly raised for the first time in opposition to the summary judgment
motion and were not a basis to find that an issue of material fact existed
sufficient to defeat the Borough's motion for summary judgment.
The judge then addressed the Borough's affirmative defenses under the
TCA. The Borough asserted immunity under N.J.S.A. 59:2-2(b) because Wood
was immune under N.J.S.A. 59:3-2(a) for exercising the judgment and discretion
vested in him in performing an investigation of an unknown male on the
premises of the school on the date of the incident. The judge found Wood was
vested with the judgment and discretion to permit plaintiff to remain in the
gymnasium based upon the information provided by the security guard's
supervisor. As such, the judge concluded the TCA's discretionary immunity
exception to liability applied. The judge found there were no material facts in
dispute regarding whether Wood's actions were undertaken in good faith and
were objectionably reasonable. Therefore, Wood was entitled to immunity from
plaintiff's negligence claims under N.J.S.A. 59:3-2(a) and N.J.S.A. 59:3-3.1 In
1
N.J.S.A. 59:3-2(a) provides that "[a] public employee is not liable for an injury
resulting from the exercise of judgment or discretion vested in him." N.J.S.A.
59:3-3 provides that "[a] public employee is not liable if he acts in good faith in
the execution or enforcement of any law."
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turn, pursuant to N.J.S.A. 59:2-2(b), "[a] public entity is not liable for an injury
resulting from an act or omission of a public employee where the public
employee is not liable."
For these reasons, the trial court granted summary judgment dismissing
plaintiff's claims against the Borough with prejudice. We concur that there was
no viable cause of action against the Borough for the actions or inactions of
Officers Wood and Sorano. The claims against the Borough were properly
dismissed with prejudice.
To the extent we have not expressly addressed plaintiff's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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