Muracco v. Township of Washington - Appellate Law NJ Blog

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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, © 2011 Thomson Reuters. No claim to original U.S. Government Works. 2
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. © 2011 Thomson Reuters. No claim to original U.S. Government Works. 3
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