The opinion
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0802-16T3
BRYAN BRANCACCIO,
Plaintiff-Appellant,
v.
CITY OF HACKENSACK,
Defendant-Respondent.
__________________________________
Submitted November 16, 2017 – Decided December 5, 2017
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
8335-14.
Costello & Mains, LLC, attorneys for appellant
(Deborah L. Mains, on the brief).
Pfund McDonnell, PC, attorneys for respondent
(David T. Pfund and Mary C. McDonnell, of
counsel and on the brief).
PER CURIAM
Plaintiff Bryan Brancaccio appeals from the Law Division's
September 26, 2016 order granting summary judgment and dismissing
his claim that his employer, defendant City of Hackensack,
discriminated against him based upon its perception that he was
disabled and unable to work as an "on the line" firefighter in
violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-
1 to -49. We affirm.
We draw the facts from the summary judgment record and view
them in a light most favorable to plaintiff, the non-moving party.
Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). The
Hackensack Fire Department (Department) consists of approximately
114 firefighters spread between four platoons and one fire
prevention bureau. Firefighters assigned to the platoons work
twenty-four-hour shifts, working one day and then having the next
three days off. This is commonly referred to as "on the line"
work and firefighters assigned to a platoon respond to the scene
of a fire wearing appropriate equipment and perform the tasks
necessary to extinguish a blaze.
Firefighters in the fire prevention bureau inspect buildings
for fire code violations. These firefighters work eight-hour
shifts for four days each week. All firefighters receive the same
salary regardless of their assignment. However, firefighters
assigned to the fire prevention bureau receive an additional $1500
annual stipend.
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Plaintiff began working for the Department in January 1986.
During his career, he primarily worked on the line in a platoon.
Plaintiff's duties typically included driving the fire engine and
operating the water pump at the scene to suppress the fire.
On May 15, 2012, plaintiff followed Department protocol and
submitted a written request to the Fire Chief (the Chief) asking
to be transferred from his platoon to the fire prevention bureau.
Plaintiff told the Chief he was suffering from double pneumonia
and supplied a supporting doctor's note. The Chief approved the
transfer and plaintiff joined the bureau.
A few months later, plaintiff submitted a written request
asking to be transferred back to a platoon. The Chief granted
this request and plaintiff resumed working on the line.
In May 2013, a deputy fire chief encountered plaintiff at a
firehouse during his shift. The deputy stated that plaintiff was
sitting on the front bumper of an engine, and looked "gray and
appeared to have discomfort in breathing." The deputy urged
plaintiff to go to a hospital for treatment. Plaintiff refused.
Later, a lieutenant checked plaintiff's condition and found that
he needed "100% oxygen[.]" Plaintiff then acceded to the
lieutenant's request that he go to the hospital for evaluation.
Because plaintiff was the assigned engine driver, and was
clearly incapacitated that day, the deputy advised the Chief that
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plaintiff endangered his crew and asked that plaintiff be "sent
for a fitness for duty test." Following this incident, the Chief
met with plaintiff and they agreed that if plaintiff became "ill
while on duty in the future, [he would] notify [his] immediate
supervisor and take the appropriate measures so as to relieve
[himself] from duty by either requesting an ambulance or placing
[himself] on sick leave."
In September 2013, plaintiff submitted a written request for
a transfer from one platoon to another. The Chief granted this
request five days later.
In October 2013, the Department directed plaintiff and other
firefighters to take a pulmonary function test required by the
Public Employee Occupational Health and Safety Association to
determine if they were fit to wear a respirator, which is a self-
contained breathing apparatus. The test was administered at the
hospital by a doctor.
On October 1, 2013, the doctor found that plaintiff was "not
medically fit" to wear a respirator and gave the Department a
written certification to this effect. On October 9, 2013, the
doctor issued a second statement clarifying that plaintiff was
"medically fit" but could "not wear or use a respirator." That
same day, the Chief reassigned plaintiff to the fire prevention
bureau. This assignment was effective on October 14, 2013.
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Plaintiff scheduled an appointment with a private physician.
On November 12, 2013, this physician rendered a written report
after examining plaintiff. The physician concluded that despite
having some underlying medical conditions, "[t]here [was] no
pulmonary contraindication to [plaintiff] using a respirator."
One day after receiving this report, the first doctor issued a
third statement finding that plaintiff was medically fit to wear
a respirator.
Thereafter, plaintiff continued working in the fire
prevention bureau until he retired on January 1, 2016, and he
never submitted a written request to return to a platoon. Because
he was in the bureau, plaintiff received the extra $1500 stipend
each year.
The Chief testified at his deposition that plaintiff "was
doing an extraordinarily good job for us" in the fire prevention
bureau. The Chief also stated that the bureau was "in dire need
of inspectors" and, because the bureau was "several hundred
inspections behind[,] . . . we needed the manpower in there." At
his deposition, plaintiff agreed the Department was not "up to
date in its fire inspections" and that "there was a shortage of
inspectors[.]"
On September 2, 2014, plaintiff filed his complaint under the
LAD and alleged that defendant discriminated against him by not
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placing him "back on the line" in a platoon after he was cleared
to wear a respirator in November 2013. Plaintiff alleged that
defendant took this discriminatory action based on its perception
that he had a disability.
Although plaintiff received the same salary as he would have
had he been assigned to a platoon, plus an extra $1500 annual
stipend,1 plaintiff alleged that he missed out on the "massive
line firefighter overtime" that was available to firefighters
assigned to a platoon. In addition, plaintiff argued that when
he was assigned to a platoon, he could perform per diem fire
inspection work for the Department on his days off. This work
paid $25 per hour and plaintiff estimated that before he was
assigned to the fire prevention bureau, he was able to work fifty
to one hundred hours a month as a per diem fire inspector.
Plaintiff did not provide any documentation or expert testimony
to support these claims.
Defendant subsequently filed a motion for summary judgment.
Following oral argument, Judge John Langan, Jr. rendered a
comprehensive written opinion granting summary judgment to
defendant and dismissing the complaint.
1
Plaintiff's annual salary was $134,000 at the time of his
retirement.
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The LAD "prohibits employers from discriminating against
employees based upon disability or perceived disability." Myers
v. AT&T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied,
186 N.J. 244 (2006). Proof that discrimination based on that
perception led to an adverse employment action is required. Ibid.
In reviewing plaintiff's claim under the LAD, Judge Langan
applied the familiar burden-shifting analysis established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct.
1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973). Under this test,
a plaintiff must first present the prima facie
elements required in any LAD disability
discrimination claim, that is: (1) [the]
plaintiff was disabled within the meaning of
the statute; (2) [the] plaintiff was qualified
to perform the essential functions of the
position of employment; and (3) [the]
plaintiff suffered an adverse employment
action because of the disability. Each of
these elements must be shown, including proof
of some material adverse change in the terms
and conditions of employment.
[Victor v. State, 401 N.J. Super. 596, 614
(App. Div. 2008), (citation omitted), aff'd
in part, modified in part, 203 N.J. 282
(2010).]
If the plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to produce
evidence that there was "a legitimate, non-discriminatory reason
for the adverse employment action[.]" Myers, supra, 380 N.J.
Super. at 452. If the employer satisfies this burden, plaintiff
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must then demonstrate "that the reason so articulated [was] not
the true reason for the adverse employment action, but [was]
instead a pretext for discrimination." Ibid.
With regard to the first prong of the test, Judge Langan
found that defendant did not dispute that it perceived plaintiff
to be disabled at the time the Chief transferred him to the fire
prevention bureau because plaintiff failed the pulmonary test and
was unable to wear a respirator. However, the judge held that
plaintiff did not suffer any adverse employment action as a result
of this reassignment. Plaintiff continued to earn the same salary
as firefighters assigned to platoons, and he also received an
additional $1500 stipend as a member of the bureau. Citing Victor,
supra, 401 N.J. Super. at 615, the judge noted that "a job
reassignment, with no corresponding reduction in wages or status
is insufficient to qualify as an adverse employment action."
Judge Langan next rejected plaintiff's claim that his alleged
loss of overtime and the opportunity to perform per diem work on
his days off constituted an adverse employment action. The judge
found that plaintiff
has not presented any evidence in opposition
to . . . [d]efendant's motion for summary
judgment to support his claim of lost
overtime. Plaintiff has no expert report on
his lost overtime wages. Accordingly,
[plaintiff's] lost wages in the form of his
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overtime potential are mere speculation on his
part.
The judge also concluded that plaintiff's assertion that he would
have worked additional hours as a per diem fire inspector if he
had been assigned to a platoon was likewise "too speculative[,]"
especially because he presented no concrete proof that "this work
[was] still available" at the Department.
Based upon his finding that plaintiff could not demonstrate
that defendant took any adverse employment action against him,
Judge Langan granted defendant's motion for summary judgment.
However, the judge also observed that even if there had been an
adverse employment action, plaintiff still failed to demonstrate
that defendant's reason for continuing to use him as a fire
inspector was a pretext for discrimination. As the judge
explained,
[d]efendant . . . was experiencing a shortage
of fire inspectors and as a result did not,
of its own volition, transfer [p]laintiff out
of the understaffed fire prevention bureau
back to the firefighter line because of [its]
critical need to have qualified fire
inspectors to avoid falling behind in [its]
inspections to keep the [c]ity safe [and this
was] more than a legitimate reason to keep
. . . [p]laintiff in the [f]ire [p]revention
[b]ureau.
This appeal followed.
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On appeal, plaintiff argues that the judge erred in granting
summary judgment to defendant and dismissing his LAD claim. We
disagree.
Our standard of review on appeal is well established. We
review a trial court's order granting summary judgment de novo,
applying the same standard the trial court applies, namely, the
standard set forth in Rule 4:46-2(c). Conley v. Guerrero, 228
N.J. 339, 346 (2017).
We have considered plaintiff's contentions in light of the
record and applicable legal principles. We are satisfied that
Judge Langan properly granted summary judgment to defendant, and
affirm substantially for the reasons expressed in his cogent and
thoughtful written opinion.
Affirmed.
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