WILLIAM SHARP VS. NORTH HUDSON REGIONAL FIRE & RESCUE (L-1443-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3414-16T4
WILLIAM SHARP,
Plaintiff-Appellant,
v.
NORTH HUDSON REGIONAL
FIRE & RESCUE, DIRECTOR
MICHAEL DEORIO and DIRECTOR
JEFF WELZ,
Defendants-Respondents.
_________________________________
Argued on May 20, 2019 – Decided July 30, 2019
Before Judges Haas, Sumners and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1443-15.
Wolodymyr P. Tyshchenko argued the cause for
appellant (Caurso Smith Picini PC, attorneys; Louis A.
Zayas and Cody Bonk, on the briefs).
Eric Labes Harrison argued the cause for respondents
North Hudson Fire & Rescue, Michael DeOrio, and Jeff
Welz (Methfessel & Werbel, attorneys; Brent Robert
Pohlman, of counsel; Raina Marie Johnson, on the
briefs).
Michael Archangel D'Anton, Sr. argued the cause for
respondent Michael DeOrio (Chasan Lamparello
Mallon & Cappuzzo, PC, attorneys; Michael Archangel
D'Anton, Sr., of counsel and on the briefs).
David F. Corrigan argued the cause for respondent Jeff
Welz (David F. Corrigan LLC, attorneys; David F.
Corrigan, of counsel and on the brief).
PER CURIAM
Plaintiff William Sharp appeals from a Law Division order granting
summary judgment to defendants North Hudson Regional Fire & Rescue (North
Hudson), and Co-Executive Directors Michael DeOrio and Jeff Welz,
dismissing with prejudice his complaint alleging violations of the New Jersey
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the New Jersey
Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Sharp contended his rights
were violated when he was forced to take involuntary disability retirement from
his firefighter position with North Hudson due to his injured knee. On appeal,
he contends summary judgment should not have been granted because there
were issues of material facts and discovery was incomplete. In light of the
competent evidence in the record and the prevailing legal principles, we affirm
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substantially for the reasons set forth by Judge Joseph V. Isabella in his cogent
written statement of reasons.
I.
We summarize the following facts from the record, viewing "the facts in
the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co.
v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)).
Sharp's Work-Related Injury and Its Effects
After being employed as an active-duty firefighter with North Hudson for
eighteen months, Sharp tore the meniscus in his left knee after he slipped off a
firetruck on May 30, 2009. Surgery followed, causing him to remain out of work
until September. He was then placed on modified duty – performing clerical
duties at North Hudson's headquarters – per North Hudson's policy. He took
another leave from work after having microfracture surgery in May 2010. In
August 2010, he underwent a functional capacity evaluation (FCE), which
determined that he was not fit for, or capable of, engaging in firefighting
activities. When Sharp returned to work from his second long-term leave of
absence in September 2010, he was again placed on modified duty.
In October 2011, another FCE determined Sharp was fit for active
firefighting duty. However, before returning to active duty, he sought a second
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opinion from another doctor to determine if his knee was fit. The doctor
concluded that he was unable to perform the duties of a firefighter; specifically,
not being able to lift any object in excess of seventy-five pounds, climb a ladder,
or crawl.
In August 2012, North Hudson Fire Chief Frank Montague asked Sharp if
he could obtain political help for himself. 1 Additionally, DeOrio explained how
Sharp could be declared fit for active duty so that he could return to his
firefighting position, or remain on modified duty until he had enough time to be
eligible for a pension. 2 A union representative told Sharp he was being kept on
modified duty long enough so that he would be eligible for a pension. Although
North Hudson permitted Sharp to remain on modified duty for approximately
four years, its policy only permits employees to remain on modified duty for up
to one year.
In February 2013, an orthopedic specialist recommended that Sharp
undergo knee replacement surgery; however he elected not to undergo the
procedure. Sharp believed it would be highly unlikely that he would ever be
1
Sharp recorded the conversation without Montague's consent.
2
DeOrio could not remember whether he held the conversation with Sharp or
the union.
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able to resume full firefighting activities even if he underwent knee replacement
surgery.
Based upon the recommendations of its co-executive directors, North
Hudson's management committee passed a resolution on March 25, 2013,
authorizing the submission of an involuntary disability retirement application
for Sharp with the Police and Firemen's Retirement System (PFRS). Sharp was
subsequently placed on a leave of absence without pay effective May 1. In the
ensuing evaluation to determine his eligibility for disability retirement, Dr.
Richard Rosa opined that Sharp was totally and permanently disabled
concerning his duties as a firefighter. Although the record is not clear, based on
the ensuing litigation, it would appear that the application was granted by the
PFRS.
Civil Litigation
On March 24, 2015, Sharp filed a complaint alleging claims of unlawful
discrimination under the LAD, by not granting him reasonable accommodation
for his knee injury, and civil rights violations under the NJCRA by refusing to
accommodate him due to his lack of political affiliation and retaliating against
him for engaging in protected activities – filing complaints, refusing to sign
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waivers on the date of his termination, and considering filing a disability claims
lawsuit.
During discovery, Sharp noticed the deposition of Weehawken Mayor
Richard Turner, a member of the North Hudson management committee.
Defendants unilaterally adjourned the deposition, followed by DeOrio's motion
for a protective order to prevent the taking of Mayor Turner's deposition,
claiming: no new information would result; the deposition was intended to
harass and coerce a settlement; he is a high-ranking government official
invoking the deliberative process privilege; and he lacked personal knowledge
of Sharp's termination. Judge Isabella granted the motion because there were
less intrusive and burdensome ways to acquire the information Sharp sought –
assessing the credibility of the North Hudson management committee as to their
motive behind involuntarily retiring him – such as deposing one of the other
four commissioners.
While the protective order motion was pending, defendants filed summary
judgment motions to dismiss Sharp's complaint and all cross-claims on the basis
that he could not establish claims under the NJCRA and LAD because: his
termination stemmed entirely from his inability to perform essential functions
of his job; no information was provided showing that he engaged in any
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protected activity connected to defendants' submission of an application for
involuntary disability retirement benefits; and he is not entitled to punitive
damages. Sharp opposed the motions. Judge Isabella heard counsel's arguments
and granted the motions in their entirety, dismissing Sharps' complaint with
prejudice. In his statement of reasons, Judge Isabella determined "[d]efendants
have not discriminated against [Sharp] in anyway and there is no political
affiliation or lack thereof that has prevented [Sharp] from remaining on light
modified duty for a period longer than allowed." The judge cited Potente v.
County of Hudson, 187 N.J. 103, 110-11 (2006) (quoting N.J.A.C. 13:13-
2.8(a)), which provided, "an employer is not required to take actions 'where it
can reasonably be determined than an . . . employee, as a result of the individual's
disability, cannot perform the essential function of the job even with reasonable
accommodation.'" Thus, the judge reasoned, "[w]hen [Sharp] was presented
with the option to undergo a medical procedure that would lead to a likelihood
he could return to work, [he] refused. As such, [d]efendants were left with no
option but to file for an involuntary disability retirement for [him]." This appeal
followed.
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II.
We are guided by the well-known principle that we review a ruling on a
summary judgment motion de novo, applying the same standard governing the
trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199
(2016)). Thus, we consider, as the motion judge did, "'whether the co mpetent
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.'" Holmes v. Jersey City
Police Dep't, 449 N.J. Super. 600, 602-03 (App. Div. 2017) (citation omitted).
If there is no genuine issue of material fact, we must then "'decide whether the
trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation
omitted). We review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Applying these standards, we discern no reason to disturb Judge Isabella's order.
A.
We first address Sharp's contentions that the judge erred in granting
summary judgment because there were material facts in dispute regarding
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whether defendants could have offered him another position to reasonably
accommodate his disability, rather than force his disability retirement. He
argues there were sufficient facts in the record for a jury to conclude such a
position was available. Sharp claims there are numerous instances in the record
that reflect DeOrio's recommendations to terminate his employment. He asserts
that defendants treated him disparately compared to other similarly situated
employees by refusing to accommodate his severe workplace injury and
recommending his involuntary retirement, while treating other politically-
connected employees more favorably. He also contends that summary judgment
should not have been granted as there was incomplete discovery because he was
prohibited from taking Mayor Turner's deposition.
Having considered Sharp's contentions in light of the governing
principles, we conclude that his arguments are without sufficient merit to
warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We
therefore affirm substantially for the reasons stated by Judge Isabella. We add
the following comments.
LAD Claims
To establish a LAD prima facie case of failure to accommodate, a plaintiff
must demonstrate:
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1) the employer knew about the employee's disability;
2) the employee requested accommodations or
assistance for his or her disability; 3) the employer did
not make a good faith effort to assist the employee in
seeking accommodations; and 4) the employee could
have been reasonably accommodated but for the
employer's lack of good faith.
[Victor v. State, 203 N.J. 383, 415 (2010) (internal
quotation marks omitted) (quoting Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 317-18 (3d Cir.
1999)).]
An employee need not place a request for a reasonable accommodation in
writing, or even use the phrase "reasonable accommodation." Tynan v. Vicinage
13 of the Superior Court of N.J., 351 N.J. Super. 385, 400 (App. Div. 2002).
However, the employee must make clear that assistance is desired. Ibid. Once
such a request is made, "the employer must initiate an informal interact ive
process with the employee[,]" to identify possible reasonable accommodations
that could be implemented "to overcome the employee's precise limitations
resulting from the disability." Ibid. The employer must make a "reasonable
effort to determine the appropriate accommodations." Ibid.
Defendants clearly satisfied these requirements. Sharp was
accommodated with modified duty for four years, which was well beyond the
one-year time period set forth in North Hudson's policy. Yet, he asserts
defendants, specifically identifying DeOrio as the person making the
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recommendation to North Hudson to submit an application for his involuntary
disability retirement, terminated his employment because of his disability. To
the contrary, North Hudson did not terminate Sharp. Sharp refused to go through
with a knee replacement procedure that North Hudson suggested, and would
have given him the opportunity to return to full active duty. Thus, North Hudson
was left with no other recourse but to pursue involuntary disability retirement
because Sharp was no longer able to perform his duties as a firefighter.
Consequently, we see no basis for a reasonable jury to conclude that Sharp was
terminated because of his disability in violation of the LAD.
NJCRA Claim
The NJCRA in pertinent part states that:
Any person who has been deprived of . . . any
substantive rights, privileges or immunities secured by
the Constitution or laws of this State, or whose exercise
or enjoyment of those substantive rights, privileges or
immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by
a person acting under color of law, may bring a civil
action for damages and for injunctive or other
appropriate relief.
[N.J.S.A. 10:6-2(c) (emphasis added).]
Thus, the NJCRA provides a cause of action to any person who has been
deprived of any rights under either the federal or state constitutions by a
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"person" acting under color of law. N.J.S.A. 10:6-2(c). The NJCRA, modeled
after the Federal Civil Rights Act, 42 U.S.C. § 1983, affords "a remedy for the
violation of substantive rights found in our State Constitution and laws." Brown
v. State, 442 N.J. Super. 406, 425 (App. Div. 2015) (quoting Tumpson v. Farina,
218 N.J. 450, 474 (2014)).
Sharp asserts he satisfied the three-part test for establishing that he was
terminated due to political affiliation, prohibited by the First Amendment, by
showing that: (1) he was a public employee "in a position that does not require
political affiliation"; (2) he "engaged in constitutionally protected conduct"; and
(3) his "conduct was a substantial or motivating factor in the government's
employment decision[]" to seek his termination through. Stephens v. Kerrigan,
122 F.3d 171, 176 (3d Cir. 1997). In support, he cites Chief Montague's
suggestion that he reach out to political connections to help him maintain his
employment, and alleged evidence that other injured firefighters, who were
politically connected, remained on modified duty until they voluntarily retired.
Sharp's NJCRA claim was appropriately dismissed. He presented no
evidence in discovery indicating that he engaged in any protected conduct.
Taking Chief Montague's statement at face value, it suggested to Sharp that
unless he had a "political" godfather, there was nothing that could be done to
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keep him employed because he was not physically fit to perform his firefighter
position and he had served on modified duty much longer than North Hudson's
policy allowed. In fact, Sharp admitted to being politically affiliated with
individuals that were supportive of the political party in control of North Hudson
at the time the application for his involuntary disability retirement was
approved. As for his claim that he was disparately treated compared to other
similarly situated firefighters, Sharp failed to identify any similarly situated
disabled firefighter who was treated more favorably than he was due to political
connections. Based upon the record, it is clear that Sharp was relieved of his
duties because he was not physically fit as evidenced by medical reports and the
FCEs, not because North Hudson terminated him.
Alleged Incomplete Discovery
Sharp asserts that because he was not allowed to take the deposition of
Mayor Turner, discovery was incomplete, and therefore a bar to granting
defendants' summary judgment. Although Rule 4:46-1 permits a party to file a
motion for summary judgment before the close of discovery, "[g]enerally,
summary judgment is inappropriate prior to the completion of discovery."
Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)
(citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)). A party
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opposing a motion for summary judgment on the grounds that discovery is
incomplete, however, must "demonstrate with some degree of particularity the
likelihood that further discovery will supply the missing elements of the cause
of action." Badiali v. New Jersey Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015)
(quoting Wellington, 359 N.J. Super. at 496). The party must identify the
specific discovery that it maintains is still needed. See Trinity Church v.
Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party opposing
summary judgment on the ground that more discovery is needed must specify
what further discovery is required, rather than simply asserting a generic
contention that discovery is incomplete."). "[D]iscovery need not be undertaken
or completed if it will patently not change the outcome." Minoia v. Kushner,
365 N.J. Super. 304, 307 (App. Div. 2004) (citations omitted).
Sharp, however, fails to specify with sufficient particularity how the
deposition of Mayor Turner would change the outcome of this case. Moreover,
he did not appeal Judge Isabella's protective order. Based on our conclusion
above that summary judgment was proper because Sharp did not have viable
LAD or NJCRA claims, we fail to discern how additional discovery would alter
our thinking.
Affirmed.
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