DEWANE PARKER VS. ATLANTIC CITY BOARD OF EDUCATION Â ATLANTIC CITY BOARD OF EDUCATION VS. GARY ADAIRÂ (DC-4376-15 AND DC-6094-15, ATLANTIC COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3472-15T3
A-3610-15T3
DEWANE PARKER,
Plaintiff-Respondent,
v.
ATLANTIC CITY BOARD
OF EDUCATION,
Defendant-Appellant.
ATLANTIC CITY BOARD
OF EDUCATION,
Plaintiff-Appellant,
v.
GARY ADAIR,
Defendant-Respondent.
__________________________________
Argued October 31, 2017 - Decided November 29, 2017
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Atlantic
County, Docket Nos. DC-4376-15 and DC-6094-
15.1
Tracy L. Riley argued the cause for appellant
(Law Offices of Riley and Riley, attorneys;
Ms. Riley and Rachel M. Conte, on the briefs).
Arnold M. Mellk argued the cause for
respondents (Mellk O'Neill, attorneys; Mr.
Mellk, of counsel, Edward A. Cridge, on the
briefs).
PER CURIAM
The Atlantic City Board of Education (Board) appeals from
Special Civil Part orders dated March 1, 2016, and March 15, 2016,
granting summary judgment in favor of two Board employees, Dewane
Parker and Gary Adair. These matters involve the recovery of
money paid to Parker and Adair for their emergency shelter work
during Hurricane Sandy. Parker and Adair were both supervisors
who were paid annual salaries under individual contracts. The
Board contends that the motion judge erred in allowing Parker and
Adair to retain money paid to them for their work during the storm.
We affirm.
During Hurricane Sandy, the City of Atlantic City (City)
asked to use the Board's schools as shelters for residents who had
not evacuated in advance of the storm. The Atlantic City Board
1
We have consolidated these two appeals for purposes of this
opinion.
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of Education agreed, and the City paid the Board to use the schools
as emergency shelters. The Board's superintendent of operations,
Barry Caldwell, testified at his deposition that he contacted
Parker about staffing the emergency shelters. Caldwell also
testified that when Board employees were asked to assist with the
Hurricane Sandy emergency shelters, he was aware they were not
obligated to perform the work. Moreover, Caldwell assured Parker
that those who worked during the storm would get paid for their
work, either by the Board or by the City.
On the weekend preceding the storm, and for the duration of
the storm, Parker and other school staff prepared and staffed the
school buildings for use as emergency shelters. Schools were not
in session during this time period, and Parker and Adair were not
working in their capacity as school supervisors. There were no
issues related to the school facilities, such as leaking roofs or
broken windows, requiring repair to ensure that the school
buildings would be operational when school resumed.
After the storm event, in accordance with Caldwell's
instructions, Parker and Adair submitted timesheets reflecting
their work at the emergency shelters. Caldwell approved the
timesheets. After payroll processed the timesheets, they were
returned to Caldwell or the superintendent of schools, who gave
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them final approval. For their emergency shelter work, Adair was
paid $3,174.32 and Parker was paid $13,999.59.
More than two years later, the New Jersey State Office of
Fiscal Accountability and Compliance (OFAC) investigated possible
overpayment to Board employees during Hurricane Sandy. In its
investigative report, OFAC concluded that "payments issued to
[administrators, such as Parker and Adair,] were not authorized
by the respective employment contracts." OFAC found that
administrators were not entitled to overtime pay as they were
exempt under the Fair Labor Standards Act (FLSA), 29 U.S.C.A.
§§ 201-219. OFAC recommended that the Board consider recovering
the money paid to Parker and Adair for their Hurricane Sandy work.
In accordance with the OFAC report, the Board was instructed
to adopt a corrective action plan or appeal OFAC's findings within
thirty days. The Board elected to adopt a corrective action plan
whereby the Board demanded that all administrators, including
Parker and Adair, reimburse the money paid to them during Hurricane
Sandy. Parker and Adair declined to repay the money, but three
other administrators reimbursed the Board.
The Board filed suit against Adair demanding reimbursement
of the money paid during Hurricane Sandy. Because Parker was
terminated as a Board employee, the Board unilaterally elected to
withhold $13,999.59 from his accrued vacation pay and paid Parker
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the difference in the amount of $3,081.41. Parker had no notice
of the Board's action until he received his unused vacation pay.
Parker then sued the Board for withholding his accrued vacation
pay.
The parties moved for summary judgment. The motion judge
granted summary judgment in favor of Parker and Adair on the bases
of quantum merit and unjust enrichment. Under the highly unusual
and unique circumstances of Hurricane Sandy, the motion judge
concluded that Parker and Adair were entitled to compensation
based upon their performance of extraordinary and unexpected work
with the expectation of remuneration. He also observed that the
Board was paid by the City for the emergency shelter work performed
by Parker and Adair, and concluded that the Board would be unjustly
enriched if it kept the City's payment and, simultaneously,
recouped the money it paid Parker and Adair.
In Parker's case, the motion judge held that the Board's
unilateral decision to offset his vacation pay was a deprivation
of property without due process of law. In Adair's case, the same
motion judge specifically found that Adair's Hurricane Sandy work
was outside the scope of his employment contract.
Our review of orders granting summary judgment is de novo,
and we apply the same standard employed by the trial court. Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014).
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Accordingly, we 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). "[W]hen the evidence 'is so one-sided that
one party must prevail as a matter of law,' the trial court should
not hesitate to grant summary judgment." Ibid. (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512,
91 L. Ed. 2d 202, 214 (1986)).
The Board argues the motion judge failed to consider the law
compelling it to respond to OFAC. The Board contends that N.J.A.C.
6A:23A-5.6 requires adoption of a corrective action plan. The
Board claims it was legally required to recoup the money paid to
Parker and Adair and the Board fulfilled its legal responsibilities
by filing suit against Adair and withholding Parker's accrued
vacation pay. However, the Board failed to cite any legal
authority in support of this argument. The OFAC report only
recommended the Board consider seeking reimbursement. Rather than
dispute OFAC's findings by filing an appeal, the Board decided to
pursue reimbursement from Parker and Adair as its corrective action
plan.
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The Board's primary argument is that it was effectively
compelled to recover the monies paid to Parker, Adair, and three
other administrators based on the OFAC report. The OFAC report,
however, was not a legal mandate to institute legal actions against
Parker and Adair. Instead, the report evaluated whether
administrators were entitled to overtime under their contracts.
OFAC concluded that administrators were not entitled to overtime.
That conclusion does not control in these cases because the
undisputed facts established that Parker and Adair were not doing
work as Board employees; rather, they were doing work outside
their contractual duties by assisting the City in setting up
shelters for people displaced by Hurricane Sandy.
The Board next argues the motion judge erred because Parker
and Adair were not entitled to overtime wages under the FLSA and
New Jersey Minimum Wage Law (MWL), N.J.S.A. 34:11-56a to -56a38.
The Board misunderstands Parker and Adair's position. Parker and
Adair do not dispute that they are ineligible for overtime in
conjunction with their contractual job duties. Parker and Adair
argue that the work they performed during Hurricane Sandy was
extra-contractual and, thus, compensable under a quasi-contract
theory. Adair was in charge of maintaining the facilities for
educational use. Parker was head of security and truancy and
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tasked with ensuring the safety of students and teachers as well
as monitoring student truancy.
We concur with the motion judge's determination that Adair's
"labor during Hurricane Sandy [did] not fall within the scope of
his job description" and that Parker "bore the tremendous burden
of coordinating and supervising Hurricane Sandy relief," such that
Parker's and Adair's efforts were outside their employment
contracts. Parker's and Adair's job duties were clearly related
to school functions and the schools were closed when Parker and
Adair worked at the emergency shelters. Thus, Parker and Adair
were not performing work within their contractual scope during
Hurricane Sandy. The work performed by Parker and Adair under the
unique circumstances of the storm event constituted completely
different work – emergency shelter work – for a completely
different entity – the City.
The Board also argues that the motion judge erred in denying
its motion based upon unjust enrichment. To prove a claim for
unjust enrichment, a party must demonstrate that the opposing
party "received a benefit and that retention of that benefit
without payment would be unjust." Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realty
Corp., 135 N.J. 539, 554, (1994)). A quasi-contract theory
"requires that plaintiff show that it expected remuneration from
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the defendant at the time it performed or conferred a benefit on
defendant and that the failure of remuneration enriched defendant
beyond its contractual rights." Ibid. (quoting VRG Corp., supra,135 N.J. at 554).
The Board was paid approximately $168,000 by the City for
emergency shelter services provided by Board employees, including
Parker and Adair. The Board has not reimbursed the City for any
sums it recouped from employees who worked at the emergency
shelters during Hurricane Sandy. There is nothing in the record
to indicate that the City has demanded reimbursement from the
Board or that the State has withheld school funding due to the
Board's payment of Parker and Adair. Consequently, we agree with
the motion judge that the Board has been enriched by the work of
Parker and Adair in satisfaction of their unjust enrichment claim.
Nor did the Board dispute Parker's and Adair's expectation
of pay for their work during Hurricane Sandy. Parker was advised
by Caldwell that he would be paid for his time. Parker and Adair
kept track of the hours they worked, submitted their time to the
Board, and were issued checks for their work. Thus, the Board was
unjustly enriched by withholding Parker's accrued vacation pay,
and would be unjustly enriched if reimbursed by Adair.
Based upon the undisputed and competent evidential materials,
involving a rare, 100-year storm event, the motion judge correctly
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determined that the Board would be unjustly enriched if Parker and
Adair, who were working outside of their school contractual
obligations, were required to return the money paid for their work
at the emergency shelters.
Affirmed.
10 A-3472-15T3