KEVIN M. WRIGHT VS. TOWNSHIP OF CHERRY HILL (L-4769-12, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2770-14T1
KEVIN M. WRIGHT,
Plaintiff-Appellant,
v.
TOWNSHIP OF CHERRY HILL,
Defendant-Respondent.
_______________________________
Argued October 13, 2016 – Remanded November 28, 2016
Resubmitted February 2, 2017 – Remanded March 6, 2017
Resubmitted April 19, 2017 – Decided June 13, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
4769-12.
Matthew S. Wolf, attorney for appellant.
Brown & Connery, L.L.P., attorneys for
respondent (Christine P. O'Hearn, of counsel;
Ms. O'Hearn and Michael J. Miles, on the
brief).
PER CURIAM
Plaintiff appeals from a January 23, 2015 order denying his
motion for reconsideration of a November 21, 2014 order, granting
defendant's motion for summary judgment. We twice remanded this
case for findings of fact or conclusions of law as required by
Rule 1:7-4. Having reviewed submissions of the parties and the
judge's findings on the record March 9, 2017, we affirm.
The underlying facts are outlined in our previous opinion of
November 28, 2016. In that opinion, we affirmed the motion judge's
denial of a plaintiff's adjournment request but reversed and
remanded the entry of an order granting summary judgment for
defendants because the judge had not provided a statement of
reasons supporting the entry of judgment on an unopposed motion.
Wright v. Twp of Cherry Hill, No. A-2770-14 (App. Div. Nov. 28,
2016). We summarize the facts relevant to the summary judgment
motion.
Plaintiff was a Cherry Hill police officer for nineteen years.
After an automobile accident while on duty in 1995, plaintiff
suffered a brain injury and later suffered from major depression,
headaches, and numerous personal and psychological problems.
Notwithstanding his injury, plaintiff returned to work without
restriction and was deemed fit for duty after several psychological
examinations. In June 2010, plaintiff was suspended for ten days
after an internal affairs investigation resulted in a finding of
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improper conduct because he did not appear in court when required.
On August 30, 2010, Cherry Hill Police Department suspended
plaintiff after an internal affairs investigation uncovered
plaintiff had abandoned hundreds of law enforcement items and
documents. These items were found after Cherry Hill Police
searched plaintiff's home without a warrant or consent.
Plaintiff was advised he was subject to termination. In
September 2010, while on paid leave, plaintiff submitted to a
fitness for duty examination and was found to be suffering from
severe depression. Counseling was recommended, but plaintiff did
not fully comply. Notwithstanding his non-compliance, defendant
did not terminate plaintiff but continued to pay him for seven
months.
On August 30, 2011, a disciplinary hearing was scheduled
before an independent arbitrator. Plaintiff did not appear. On
September 1, 2011, the arbitrator issued a decision concluding
plaintiff had "ceased to conduct his affairs in a manner required
by a police officer," and plaintiff was unresponsive to defendant's
efforts to assist him. The arbitrator agreed termination from the
police force was the only option because plaintiff could not
function as a police officer.
Plaintiff filed suit on November 7, 2012, under the New Jersey
Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, and
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the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2. The
first count of the complaint alleged plaintiff suffered a
disability under the NJLAD and had suffered adverse employment
consequences as a result thereof. The second count asserted
plaintiff's constitutional rights had been violated as a result
of the illegal search of his home and the use of the illegally
seized items.1
On appeal, plaintiff argues the judge erred because he did
not construe all facts and inferences in favor of the non-moving
party as required by Rule 4:46(2)(c), and the judge failed to
correlate factual findings with legal conclusions. We disagree.
In Allstate Insurance Co. v. Fisher, we said, "[s]ummary
judgment is appropriate where the evidence fails to show a genuine
issue as to any material fact challenged and the moving party is
entitled to judgment as a matter of law." 408 N.J. Super. 289,
299 (App. Div. 2009) (citing R. 4:46-2(c)). In support of an
1
On October 4, 2013, prior to the completion of discovery,
defendant moved for partial summary judgment dismissing the claim
under the NJCRA because the claims alleged were barred by the two-
year statute of limitations. Through counsel, plaintiff submitted
a certification stating he had been unaware Cherry Hill police
searched his home without a warrant until September 17, 2012,
because the police had previously lied to him, telling him they
had been responding to a burglary report. The court rejected
plaintiff's assertion and granted defendant's motion on November
22, 2013. That order was not appealed.
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order granting summary judgment, a judge is required to detail the
findings of fact and conclusions of law in a written or oral
opinion. R. 1:7-4(a); R. 4:46-2(c). A trial judge is obligated
"to set forth factual findings and correlate them to legal
conclusions. Those findings and conclusions must then be measured
against the standards set forth in Brill v. Guardian Life Insurance
Co. of America, 142 N.J. 520, 540 (1995)." Great Atl. & Pac. Tea
Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000).
Neither the parties nor the appellate court is "well-served by an
opinion devoid of analysis or citation to even a single case."
Ibid.Rule 4:46-2(b) provides that all sufficiently supported
material facts will be deemed admitted for purposes of the motion
unless "specifically disputed" by the party opposing the motion.
Pursuant to Rule 1:7-4(a), however, the judge must still correlate
those facts to legal conclusions.
Here, the judge explicitly adopted defendant's reasoning and
arguments and read into the record facts he deemed material and
admitted. The judge determined plaintiff had not set forth a
prima facie case of disability discrimination under the NJLAD
because he had not produced evidence defendant was aware of his
disability, and defendant was justified in terminating plaintiff's
employment because he did not perform the essential functions of
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his job. Based on the undisputed record, the court determined
even if plaintiff had pled a prima facie claim, defendant had
established a non-pretextual, non-discriminatory basis for
removing plaintiff from his job. Plaintiff's failure to
accommodate claim was rejected by the court because plaintiff
could no longer perform the essential functions of the job. The
record supports the judge's findings.
Affirmed.
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