Muracco v. Township of Washington - Appellate Law NJ Blog

Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
2010 WL 5376867
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UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.
Superior Court of New Jersey,
Appellate Division.
Peter J. MURACCO, Jr., Plaintiff-Appellant,
v.
TOWNSHIP OF WASHINGTON-
Gloucester County, Defendant-Respondent.
Submitted July 13, 2010. Decided Nov. 16, 2010.
On appeal from Superior Court of New Jersey, Law Division,
Gloucester County, Docket No. L-1277-07.
Attorneys and Law Firms
Timothy J. Higgins, attorney for appellant.
Brown & Connery, LLP, attorneys for respondent (William
M. Tambussi and Christopher A. Orlando, on the brief).
Before Judges R.B. COLEMAN and C.L. MINIMAN.
Opinion
PER CURIAM.
*1 Plaintiff Peter J. Muracco, Jr., appeals from an April
17, 2009, grant of summary judgment in favor of defendant
Township of Washington dismissing plaintiff's complaint
with prejudice. We now affirm.
Plaintiff was employed by defendant in its public works
department and was a member of the American Federation
of State, County and Municipal Employees Council 71,
Local 3303A (the Union). It is undisputed that plaintiff's
employment was governed by a valid and enforceable
collective negotiation agreement (CNA).
After work on March 7, 2007, at about 8:00 p.m., plaintiff
was involved in a motor vehicle accident with an ambulance.
Washington Township police officers charged plaintiff with
reckless driving, contrary to N.J.S.A. 39:4-96; driving while
intoxicated (DWI), contrary to N.J.S.A. 39:4-50; failure to
maintain liability insurance, contrary to N.J.S.A. 39:6B-2;
and possession of a controlled dangerous substance (Xanax),
contrary to N.J.S.A. 2C:35-10a(1), a third-degree offense for
which a term of imprisonment up to five years could be
imposed, N.J.S.A. 2C:43-6a(3). The following day, Debra
Fourre, Township Business Administrator, sent a formal
notice of disciplinary charges to plaintiff charging him with:
1. Article 14, Discipline and Discharge, G.6. A crime more
serious than a misdemeanor punishable by one (1) year or
more in prison for the possession, sale, purchase or use of
illegal drugs.
2. Township of Washington Policy and Procedure Manual,
7-01 Employee Conduct and Work Rules. Other sufficient
cause[.]
The notice informed plaintiff that a hearing would
be conducted that day at 2:30 p.m. at the Business
Administrator's Office to determine whether his current
suspension with pay should be converted to a suspension
without pay pending a final hearing on the disciplinary
charges. The charges were:
1. On March 7, 2007, you were arrested for driving
while intoxicated and charged with possession of controlled
dangerous substance in violation of NJS 2C:35-10a(1) which
charges you with a crime punishable by more than one year
in New Jersey state prison.
2. If convicted, the employee is subject to a two year loss of
New Jersey driving privilege as well as a permanent loss of
CDL license. 1
At the time, plaintiff was hospitalized for injuries he
suffered in the motor vehicle accident, and the hearing was
postponed by defendant. The following day, Fourre sent
another memorandum to plaintiff, which stated in part:
Please be advised that the L[o]udermill 2 Hearing scheduled
for this afternoon has been postponed because you were
hospitalized and unable to attend. Your union representatives
did attend on your behalf but no hearing was conducted
pending your availability. The hearing has been postponed
until such time as you are able to return to work or Monday,
March 26, 2007 at 10:00 a.m., whichever occurs first. In the
meantime, the charges and specifications remain as stated in
my memo of yesterday.
*2 Because of the extension of the hearing, your suspension
with pay has been converted to suspension without pay,
effective Monday, March 12, 2007....
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Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
When you are cleared to return to work by your doctor, you
will need to provide my office with written documentation of
the clearance.
On March 22, 2007, plaintiff's attorney sought an
adjournment of the hearing pending his receipt of discovery
and any and all documents to be used by defendant at
the hearing. He also suggested that it would be premature
to conduct a hearing while the criminal charges were still
pending with the Gloucester County Prosecutor's Office. The
hearing was not rescheduled by defendant.
On June 13, 2007, plaintiff sought and was granted a
conditional discharge for a term of one year in connection
with a disorderly persons offense under N.J.S.A. 2C:35-10c.
Plaintiff also pled guilty to the DWI charge and had his
driver's license suspended for two years. Various fines and
penalties were imposed in connection with both offenses,
and the charges under N.J.S.A. 39:4-96 and 39:6B-2 were
dismissed.
On August 6, 2007, plaintiff filed a Verified Complaint
instituting this action. He alleged the facts we have outlined
above and noted that he was required to use all of his accrued
vacation time and personal days during the suspension. He
alleged that the charge remanded by the prosecutor to the
municipal court, a violation of N.J.S.A. 2C:35-10c, was a
disorderly persons offense subject to no more than six months
in jail. Plaintiff contended that he had been constructively
discharged and that defendant had prematurely suspended
him without pay and without a proper hearing. He also alleged
that defendant's conduct had deprived him of due process by
its refusal to reschedule a hearing.
On October 4, 2007, defendant's counsel wrote to plaintiff's
counsel confirming the adjournment of the hearing until
October 11, 2007, and requested his consent to a Stipulation
to Extend Time to Answer the complaint.
On October 11, 2007, defendant conducted a “Public
Hearing in the Peter Muracco, Jr. vs. Washington Township
matter.” Both parties' counsel attended the hearing, and
the hearing officer, Jack Lipsett, Business Administrator,
reserved decision. On October 15, 2007, defendant answered
the complaint and asserted various affirmative defenses,
including failure to exhaust administrative remedies.
Defendant did not assert that plaintiff was required to arbitrate
the dispute. On October 18, 2007, Lipsett released his
decision in which he ruled in favor of defendant for several
reasons:
The Township of Washington's Policy and Procedures
Manual clearly states in section 5-08 that any employee
whose work requires the operation of Washington Township
vehicles must hold a valid Driver's License.
Additionally, the township job description for Laborer states
that one of the requirements is to possess a Class B CDL
driver's license.
Furthermore, [plaintiff] was in receipt of the directive from
2000 that all Municipal Service Department employees must
have a CDL license.
*3 It is an essential job requirement for a Laborer working
for Washington Township to have a license to do his job
effectively. Mr. Muracco will not have a license for the
foreseeable future.
Accordingly, he should be terminated from employment
effective immediately.
On February 24, 2009, defendant, for the second time, moved
for summary judgment, asserting in its statement of material
facts that a CNA applied to plaintiff's employment and that
Article 14(B) gave defendant the right to suspend or discharge
an employee “immediately prior to an appeal or grievance
hearing where it is determined by the township personnel that
the employee is unfit for duty or is a hazard to any person
if permitted to remain on the job.” Additionally, defendant
alleged that the CNA in Articles 13 and 14 “sets forth the
procedure in which an employee can challenge disciplinary
decision[s] up to and including termination.”
The Statement asserted the facts of defendant's accident
and arrest and the nature of the charges. It set forth the
facts of defendant's disciplinary action and the hearing
scheduled and then postponed at plaintiff's request. It
stated its decision to suspend without pay effective March
12, 2007, and acknowledged plaintiff's counsel's letter of
representation and request to adjourn the March 26, 2007,
hearing and suspend all disciplinary action pending action by
the Gloucester County Prosecutor's Office, which defendant
granted. Defendant then described the outcome of the
criminal charges, plaintiff's plea to DWI and a violation of
N.J.S.A. 2C:35-10c, and the sentences imposed.
The Statement also asserted that plaintiff's disciplinary
hearing was scheduled for October 4, 2007, and adjourned
at plaintiff's request. When it was conducted on October 11,
2007, the Township Business Administrator, Jack Lipsett,
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Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
served as the hearing officer in accordance with the CNA.
On October 18, 2007, Lipsett ruled in favor of defendant
and formally terminated plaintiff's employment. Finally, the
Statement asserted that pursuant to Article 13 of the CNA,
plaintiff had thirty working days to request arbitration to
challenge the decision but failed to do so, which barred further
challenge to the decision to terminate.
Defendant argued that it was entitled to summary judgment
because the court lacked jurisdiction over the dispute by
virtue of Articles 13 and 14 of the CNA because the parties
had agreed to arbitrate disciplinary disputes. Even if that
were not so, defendant argued that the only issue properly
before the court was whether defendant had the authority to
suspend plaintiff without pay before a Loudermill hearing was
conducted.
In plaintiff's responding Statement of Material Facts, he
denied that the CNA could waive the requirements of
Loudermill for a hearing prior to suspension without pay
and that he never waived these rights at any time after his
arrest. He stated that he had been constructively terminated on
March 8, 2007, in contravention of his rights and that Lipsett's
action was not done pursuant to the terms and conditions of
the CNA. Further, the notice of termination made no reference
to any rights of appeal.
*4 Plaintiff filed a cross-motion for summary judgment,
which he supported with his own certification, and in his
Statement of Material Facts explained that he requested an
adjournment of the hearing because he expected that the
criminal charge would be downgraded to a disorderly persons
offense, which would not be a ground for termination of his
employment. He stated that he had been granted a conditional
discharge in the Washington Township Municipal Court,
came under the supervision of probation, and successfully
completed the program. He further stated that when he was
hired in 1998, “there was no requirement that a laborer have
a New Jersey driver's or CDL license” and that no such
requirement had been incorporated into the Employee Manual
or Policy and Procedures Manual nor imposed by resolution
of the governing body. He asserted that there was very little
driving involved in his duties as a laborer and that janitorial
positions did not require driving at all.
Plaintiff argued that defendant failed to comply with Rule
1:6-6 because the supporting certification to defendant's
summary judgment motion was signed by defendant's
counsel, not an employee or elected official of defendant.
He also argued under Loudermill that he was entitled to
reinstatement, full back pay, and benefits due to defendant's
failure to provide due process, notice, and opportunity
to be heard prior to discipline and termination. Last, he
contended that the termination of his employment was
arbitrary, capricious, and contrary to the facts and evidence.
On April 17, 2009, the motion judge denied plaintiff's
motion and granted defendant's motion, dismissing plaintiff's
complaint with prejudice. She found that the CNA stated “that
an employee may be suspended or discharged immediately
prior to an appeal or grievance hearing where it is determined
by the Township personnel that the employee is unfit for
duty or is a hazard to any person if permitted to remain on
the job.” She found that Articles 13 and 14 “set[ ] forth the
manner in which an employee can challenge a disciplinary
decision up to and including termination.” She found the
facts we have discussed above and observed that defendant
characterized the October 11, 2007, hearing as one conducted
pursuant to Article 14 of the CNA whereas plaintiff said that
the hearing was for a violation of policies and procedures and
not part of the CNA. She found that Lipsett noted that one of
the violations charged was of CNA Article 14, § G(6). This
led her to conclude “that the proper next step following the
hearing officer's determination would be to request arbitration
pursuant to the agreement. That request was not made,” and
she granted summary judgment to defendant.
This appeal followed. Plaintiff contends first that he was not
given notice and opportunity to be heard in a Loudermill
hearing, which requires his reinstatement with full back pay
and benefits. Second, he argues that the termination of his
employment was contrary to the facts and evidence and
was arbitrary and capricious. Third, even if the termination
on October 18, 2007, is sustainable, plaintiff urges that
he is still entitled to back pay and benefits for the period
prior to that date because he was not afforded a Loudermill
hearing. Fourth, he urges that the supporting documentation
for defendant's summary judgment motion failed to meet the
requirements of Rules 1:6-2, 1:6-6, and 4:46-2. We will begin
with the last issue and then address the Loudermill issues
before considering the second issue.
*5 The CNA was attached as an exhibit to defendant's brief
in support of summary judgment, but no one with personal
knowledge of the facts certified that the attached copy of the
CNA was kept in the ordinary course of defendant's business
and was a true and complete copy of the CNA in effect at
the time of defendant's arrest. Rather, an attorney from the
defense law firm certified that he attached “a true copy” of the
CNA effective January 1, 2006, through December 31, 2009.
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Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
This certainly violates Rule 1:6-6. 3 The affidavit of
defendant's counsel does not meet the requirements of this
rule. Claypotch v. Heller, Inc., 360 N.J.Super. 472, 489
(App.Div .2003); F.B. v. A.L.G., 350 N.J.Super. 389, 393
(App.Div.2002), rev'd on other grounds, 176 N.J. 201 (2003).
However, plaintiff's complaint alleged the existence of a
CNA and specifically referenced Article 14 as applicable,
and defendant admitted same in its answer. In raising this
objection, plaintiff did not dispute that the CNA attached to
defendant's moving papers was a true copy of the CNA in
existence at the time of his arrest. Indeed, plaintiff discussed
the terms of the CNA in opposing defendant's motion. As a
consequence, we are satisfied that the motion judge properly
considered the CNA presented to her.
The same problem infuses the police reports attached to
defendant's moving papers. Defendant's counsel did not
certify that he obtained the same from the police department,
and we do not know how he could attest to the fact that he was
attaching a true copy of same. However, the police reports
were relevant only with respect to the defendant's arrest for
DWI, an arrest that he admitted in his Verified Complaint.
Plaintiff was not prejudiced by the judge's consideration of
these documents.
The memoranda from Fourre dated March 8 and 9, 2007,
which also suffer from the same defect as the police reports,
were addressed to plaintiff, and he alleged in his Verified
Complaint that these notices were given to him. He did not
assert in his opposition to summary judgment that these were
not true copies of the document addressed to him. The judge
did not err in considering these documents.
The correspondence between plaintiff's attorney and defense
counsel was certainly well within the knowledge of the
attesting defense attorney and was properly before the judge
pursuant to Rule 1:6-6. Additionally, the letter from Charles
W. Wigginton, Esquire, was addressed to plaintiff's counsel
and discussed the outcome of the criminal proceedings. From
the tenor of the letter, Wigginton was plaintiff's criminal
defense counsel who was informing plaintiff's attorney in this
action of the results of the municipal court proceedings. It
could hardly have come into the hands of defense counsel
if it was not supplied by plaintiff's counsel. As a result, we
infer that defendant's counsel was in a position to attest to the
document.
The last document was Lipsett's October 18, 2007, written
decision. It was sent to plaintiff by Lipsett, and copies
were provided to the attorneys who represented plaintiff and
defendant at the hearing. As such, defendant's counsel could
certainly attest to this document. As a result, we find that the
procedural irregularities in defendant's summary judgment
were not an impediment to the determination of the motion.
We turn to the Loudermill issues.
*6 The Supreme Court in Loudermill “consider[ed] what
pretermination process must be accorded a public employee
who can be discharged only for cause.” Loudermill, supra,
470 U.S. at 535, 105 S.Ct. at 1489, 84 L. Ed.2d at 499.
Loudermill was charged with dishonesty in filling out his
employment application because he failed to disclose a
conviction for grand larceny. Ibid. He was dismissed without
having an opportunity to challenge his dismissal. Id. at 535,
105 S.Ct. at 1489-90, 84 L. Ed.2d at 499.
Loudermill was classified as a civil servant and exercised his
right to administrative review under Ohio law. Id. at 535,
105 S.Ct. at 1490, 84 L. Ed.2d at 499. The appointed referee
recommended reinstatement; the Civil Service Commission
upheld the dismissal. Id. at 535-36, 105 S.Ct. at 1490, 84 L.
Ed.2d at 499. Although Loudermill was entitled to state-court
review, he instituted an action in the federal district court
alleging that the Ohio statute providing administrative review
of adverse employment action “was unconstitutional on its
face because it did not provide the employee an opportunity
to respond to the charges against him prior to removal.” Id.
at 536, 105 S.Ct. at 1490, 84 L. Ed.2d at 500. As a result, he
alleged that he was deprived of liberty and property without
due process. Ibid.
The district court dismissed for failure to state a claim
because the statute at issue afforded Loudermill procedures
for discharge that were followed. Ibid. As a consequence,
he received all the process he was due. Ibid. A parallel
case instituted by Donnelly was consolidated with that of
Loudermill for purposes of appeal. Id. at 536-37, 105 S.Ct.
at 1490-91, 84 L. Ed.2d at 500. A divided panel of the Sixth
Circuit reversed and remanded. Id. at 537, 105 S.Ct. at 1491,
84 L. Ed.2d at 500. It “concluded that the compelling private
interest in retaining employment, combined with the value of
presenting evidence prior to dismissal, outweighed the added
administrative burden of a pretermination hearing.” Id. at 537,
105 S.Ct. at 1491, 84 L. Ed.2d at 501 (citation omitted).
The Court first observed that Loudermill and Donnelly's
“federal constitutional claim depends on their having had
a property right in continued employment. If they did, the
State could not deprive them of this property without due
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Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
process.” Id. at 538, 105 S. Ct . at 1491, 84 L. Ed.2d at
501 (footnote and citations omitted). The Court found that
the Ohio statute “plainly supports the conclusion, reached by
both lower courts, that [Loudermill and Donnelly] possessed
property rights in continued employment.” Id . at 539, 105
S.Ct. at 1491, 84 L. Ed.2d at 501.
The Court rejected one employer's argument that because
the statute creating the property right also specified the
procedures by which that right could be terminated, the right
itself was a limited one. Id. at 539-41, 105 S.Ct. at 1492-93,
84 L. Ed.2d at 502-03.
*7 In Vitek v. Jones, 445 U.S. 480, 491[, 100 S.Ct. 1254,
1263, 63 L. Ed.2d 552, 563] (1980), we pointed out that
“minimum [procedural] requirements [are] a matter of federal
law, they are not diminished by the fact that the State may
have specified its own procedures that it may deem adequate
for determining the preconditions to adverse official action.”
This conclusion was reiterated in Logan v. Zimmerman Brush
Co., 455 U.S. 422, 432[, 102 S.Ct. 1148, 1155-56, 71 L. Ed.2d
265, 275] (1982), where we reversed the lower court's holding
that because the entitlement arose from a state statute, the
legislature had the prerogative to define the procedures to be
followed to protect that entitlement.
[Id. at 541, 105 S.Ct. at 1492-93, 84 L. Ed.2d at 503.]
The Court found that the Due Process Clause applied, leaving
only the question of “ ‘what process is due,’ “ a question that
was not answered by the state statute. Id. at 541, 105 S.Ct.
at 1493, 84 L. Ed.2d at 503 (quoting Morrissey v. Brewer,
408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L. Ed.2d 484,
494 (1972)). It described “ ‘the root requirement’ of the
Due Process Clause as being ‘that an individual be given
an opportunity for a hearing before he is deprived of any
significant property interest.’ “ Id. at 542, 105 S.Ct. at 1493,
84 L. Ed.2d at 503-04 (quoting Boddie v. Connecticut, 401
U.S. 371, 379[, 91 S.Ct. 780, 786, 28 L. Ed.2d 113, 119]
(1971)) (footnote omitted). The Court found that this required
some type of a hearing before discharge. Id. at 542, 105 S.Ct.
at 1493, 84 L. Ed.2d at 504. In reaching this conclusion the
Court balanced the competing interests of the state employer
and the employee. Id. at 542-45, 105 S.Ct. at 1493-95, 84 L.
Ed.2d at 504-06.
The essential requirements of due process, and all that
respondents seek or the Court of Appeals required, are notice
and an opportunity to respond. The opportunity to present
reasons, either in person or in writing, why proposed action
should not be taken is a fundamental due process requirement.
The tenured public employee is entitled to oral or written
notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of
the story. To require more than this prior to termination would
intrude to an unwarranted extent on the government's interest
in quickly removing an unsatisfactory employee.
[Id. at 546, 105 S.Ct. at 1495, 84 L. Ed.2d at 506 (citations
omitted); see also Caldwell v. N.J. Dep't of Corr., 250
N.J.Super. 592, 613 (App.Div.), certif. denied, 127 N .J. 555
(1991).]
Plaintiff's claim that an actual hearing is required by the
Due Process Clause is simply not supported by Loudermill,
as the above-quoted material demonstrates. It is clear from
the memoranda from Fourre that defendant was specifically
acting pursuant to Loudermill in giving notice of the
disciplinary action to be taken and the factual basis for
that action. Because plaintiff was hospitalized as a result
of the accident, defendant rescheduled his March 8, 2007,
Loudermill hearing to March 26, 2007, or earlier if he was
able to return to work.
*8 Despite recognizing the necessity of providing plaintiff
with an opportunity to present his version of the facts under
Loudermill, which must occur before adverse action is taken,
Loudermill, supra, 470 U.S. at 542, 105 S.Ct. at 1493,
84 L. Ed.2d at 503-04, the defendant converted plaintiff's
suspension with pay to a suspension without pay. This action
was clearly prohibited by Loudermill, entitling defendant
to back pay from March 9 to October 18, 2007. However,
defendant urges that plaintiff must vindicate his due process
rights under the terms of the CNA.
That contract provides in Article 14, B that “[a]n employee
may be suspended or discharged immediately prior to an
appeal or grievance hearing where it is determined by the
township personnel that the employee is unfit for duty or is
a hazard to any person if permitted to remain on the job.” 4
The Union agreed to this exception to Loudermill when it
signed the CNA. However, Fourre did not find that plaintiff
was unfit for duty nor did she find that he was a hazard to any
person as a justification for his suspension without pay prior
to the Loudermill hearing and prior to an appeal or grievance
hearing.
Article 14, D of the CNA requires the employer to “provide
a copy of disciplinary charges to the employee and a copy
of the notice ... to the local Union representative and District
Council representative.” Presumably that was done because
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Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
the Union representatives appeared at the March 8, 2007,
Loudermill hearing, which was continued to March 26, 2007.
That paragraph goes on to provide that “[a]n employee may
appeal a disciplinary finding beginning at the third step of
the grievance procedure and within 10 working days of its
occurrence.” Article 13, A describes the third step of the
grievance procedure as follows:
If the grievance remains unsettled, the
representative may within twenty (20)
working days after the reply of the Business
Administrator is due, give written notice
to the Mayor or her designee requesting a
hearing of the aggrieved employee, his/her
Shop Steward, the Mayor or her designee and
the business representative of the Union. The
hearing will be held in no less than twenty (20)
working days.
There is no provision in the CNA for a hearing prior to
the imposition of discipline nor is a Loudermill hearing
prohibited. Article 14 speaks only of notice of disciplinary
charges and then speaks of an appeal from a disciplinary
finding. Thus, the CNA does not purport to waive Loudermill
hearings.
Certainly, the hearing that was conducted on October 11,
2007, was sufficient to satisfy the due process requirement for
a hearing under Loudermill. It was attended by the Township
Solicitor, John Eastlack, Jr., and plaintiff's counsel, Edward
Brennan. Plaintiff was given an opportunity to speak, and
both attorneys presented closing arguments. This hearing in
fact qualified as a Step Two grievance procedure under the
CNA, which provides in Article 13, A that a Step Two
grievance is to be presented to the Business Administrator,
who in this case was Lipsett. The resulting consequence is that
plaintiff was obligated by the terms of the CNA to request a
hearing by the Mayor or her designee within twenty working
days of the October 18, 2007, decision. If the dispute was not
resolved before the Mayor, plaintiff was obligated to arbitrate
the dispute pursuant to Article 13, A, Step Four.
*9 The CNA is governed by N.J.S.A. 2A:24-1 to -11, which
apply to collective bargaining agreements or collectively
negotiated agreements. N.J.S.A. 2A:24-1.
A provision in a written contract to settle by arbitration a
controversy that may arise therefrom or a refusal to perform
the whole or a part thereof or a written agreement to
submit, pursuant to section 2A:24-2 of this title, any existing
controversy to arbitration, whether the controversy arise out
of contract or otherwise, shall be valid, enforceable and
irrevocable, except upon such grounds as exist at law or in
equity for the revocation of a contract.
[N.J.S.A. 2A:24-1.]
New Jersey's public policy strongly favors arbitration to settle
labor-management disputes. Cnty. Coll. of Morris Staff Ass'n
v. Cnty. Coll. of Morris, 100 N.J. 383, 390 (1985). “Any
doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration.” Jansen v. Salomon Smith
Barney, Inc., 342 N.J.Super. 254, 258 (App.Div.) (citations
omitted), certif. denied, 170 N.J. 205 (2001).
Given this public policy, it was incumbent on plaintiff to
grieve the suspension without pay and then the termination
of his employment through the grievance procedures in the
CNA to binding arbitration. His resort to the courts was
inconsistent with his duty to grieve and then arbitrate the
dispute, presenting his claim that he was deprived of due
process under Loudermill for determination by the arbitrator.
This conclusion makes any further consideration of plaintiff's
second point on appeal unnecessary as the issue was one for
resolution through the grievance and arbitration procedure of
the CNA.
Affirmed.
Footnotes
1 CDL is a commercial driver's license.
2 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L. Ed.2d 494 (1985).
3 Rule 1:6-6 provides:
If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal
knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have
annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to crossexamination,
or hear the matter wholly or partly on oral testimony or depositions.
4 The corollary of this proposition would seem to be that employees may not be suspended or discharged prior to an appeal or grievance
hearing.
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Muracco, Jr. v. Township of Washington, Not Reported in A.3d (2010)
End of Document
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