ROBERT PICCONI VS. ATLANTIC HEALTH SYSTEM, INC., Â(L-1019-14, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4195-15T3
ROBERT PICCONI and
STACIE PICCONI,
Plaintiffs-Appellants,
v.
ATLANTIC HEALTH SYSTEM, INC.,
AHS HOSPITAL CORP./MORRISTOWN
MEDICAL CENTER,1 SALVATORE
RUGGIERO, and KATHRYN SORTINO,
Defendants-Respondents.
_____________________________
Argued October 24, 2017 - Decided November 15, 2017
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-1019-14.
Anthony J. Macri argued the cause for
appellants.
Brett M. Anders argued the cause for
respondents (Jackson Lewis PC, attorneys; Mr.
Anders, of counsel and on the brief; Michael
D. Ridenour, on the brief).
1
Incorrectly designated as "MORRISTOWN MEDICAL CENTER a/k/a
ATLANTIC HEALTH SYSTEM."
PER CURIAM
Plaintiffs Robert and Stacie Picconi2 appeal from a May 3,
2016 order granting summary judgment in favor of defendants
Atlantic Health System, Inc., AHS Hospital Corp./Morristown
Medical Center (AHS), Salvatore Ruggiero, and Kathryn Sortino.
Plaintiff contends the motion judge erroneously dismissed his
claims against defendants. We disagree and affirm.
Plaintiff's claims arose from an incident in AHS's employee
locker room. A fellow employee reported seeing a bag containing
a white powdery substance on the floor near a locker. Security
for AHS investigated and questioned plaintiff, as they mistakenly
believed the locker belonged to him.3 Plaintiff voluntarily
responded to security's questions, and never asked to terminate
the questioning or leave the locker room. At some point during
the brief questioning conducted by AHS's security, plaintiff left
the locker room to obtain the combination to his new locker in
order to prove that the substance was not near his locker.
2
We hereafter refer to Robert Picconi as plaintiff in the
singular, as Stacie Picconi's claims are derivative of her
husband's claims.
3
Upon further investigation, AHS confirmed that the substance was
a harmless vitamin supplement. AHS also concluded that the
substance was found near plaintiff's former locker, not his newly
assigned locker.
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Security then opened plaintiff's locker and found nothing
suspicious. The matter was closed, and no allegations were levied
against plaintiff as a result of the incident.
Shortly after the incident, plaintiff heard rumors within AHS
that he was accused of having drugs in the workplace. No one from
AHS management accused plaintiff of possessing drugs in the
workplace. Plaintiff, upset by rumors of his drug possession,
requested that AHS's Human Resources Department investigate the
rumors and refused to return to work until the matter was resolved.
Significantly, plaintiff never suggested what he wanted from AHS
in order to return to work. Several days later, plaintiff
requested assignment of a new supervisor as he claimed continuing
to work with his current supervisor was creating a hostile work
environment.
Plaintiff returned to work at AHS one week after the locker
room incident. Upon his return to work, plaintiff claims he
continued to hear rumors regarding his alleged drug possession.
Plaintiff again told AHS's Human Resources Department that he
would not return to work until the matter was resolved to his
satisfaction. Plaintiff never articulated what he wanted AHS to
do in order to resolve the matter. AHS's Human Resources
Department telephoned plaintiff on March 3, 2014 to advise that
the investigation was complete. According to AHS's Human Resources
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Department personnel, plaintiff was rude and combative during this
telephone conversation. Two days later, plaintiff sent an e-mail
to AHS's Human Resources Department advising he was still awaiting
a resolution of the situation and complaining that the telephone
call from its staff member was harassing.
On March 7, 2014, plaintiff attended a meeting with
representatives from AHS's Human Resources and Security
Departments. AHS intended to have a productive meeting to address
concerns related to the locker room incident. However, plaintiff
repeatedly interrupted those who spoke during the meeting, and
became increasingly loud, agitated, and volatile according to
individuals who attended the meeting. Plaintiff left the meeting
abruptly rather than discussing the matter with AHS's
representatives. As a result of his disruptive and disrespectful
behavior during the March 7 meeting and during the March 3
telephone conversation, AHS terminated plaintiff's employment.4
Plaintiffs filed suit alleging violations of the New Jersey
Law Against Discrimination, false imprisonment, slander, and
intentional infliction of emotional distress. After discovery was
completed, defendants filed a motion for summary judgment arguing
4
Plaintiff was an at-will employee of AHS and could be terminated
at any time without cause or notice. Plaintiff acknowledged his
at-will employment status by signing AHS's employment application
and receiving AHS's employee handbook.
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that plaintiffs were unable to prevail on any of their claims as
a matter of law. Plaintiffs, in opposition to the motion, argued
that material disputed facts precluded dismissal of their claims.
Judge W. Hunt Dumont issued a comprehensive and thorough
written statement of reasons in support of his order granting
summary judgment and dismissing plaintiffs' complaint for failure
to cite any competent evidence in support of their asserted claims.
We affirm for the reasons set forth in Judge Dumont's statement
of reasons and add only the following comment.
Our review of an order 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).
Accordingly, we determine whether the moving party has
demonstrated that there are no genuine disputes as to any material
facts and, if not, whether the moving party is entitled to judgment
as a matter of law. Id. at 405-06 (citing Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995)); R. 4:46.
In opposition to defendants' summary judgment motion,
plaintiff submitted a certification in an effort to raise genuinely
disputed material facts. However, plaintiff's certification
directly contradicted his sworn testimony and was properly
rejected by the motion judge. See Hinton v. Meyers, 416 N.J.
Super. 141, 149-50 (App. Div. 2010) (affirming the trial court's
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decision to disregard a plaintiff's certification that "differed
significantly from the testimony plaintiff provided at his
deposition[, and] . . . [p]laintiff offered no explanation for
the two different versions."). A "[p]laintiff cannot create an
issue of fact simply by raising arguments contradicting his own
prior statements and representations." Mosior v. Ins. Co. of N.
Am., 193 N.J. Super. 190, 195 (App. Div. 1984). When an offsetting
affidavit or certification is submitted in opposition to a motion
for summary judgment, a trial court may reject that document "as
a sham when it 'contradict[s] patently and sharply' earlier
deposition testimony, there is no reasonable explanation offered
for the contradiction, and at the time the deposition testimony
was elicited, there was no confusion or lack of clarity evident
from the record." Hinton, supra, 416 N.J. Super. at 150 (quoting
Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002)). The motion
judge expressly found that plaintiff's "self-serving affidavit"
was "contradicted by his testimony" and failed to create a genuine
question of material fact precluding the entry of summary judgment.
Because plaintiff failed to present competent evidence in
support of his claims, other than a "self-serving affidavit,"
which contradicted plaintiff's sworn deposition testimony, the
judge correctly granted defendants' motion for summary judgment.
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We affirm for the reasons set forth in the judge's written
statement of reasons dated May 3, 2016.
Affirmed.
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