WILLIAM SHARP VS. NORTH HUDSON REGIONAL FIRE & RESCUE (L-1443-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3414-16T4

WILLIAM SHARP,

Plaintiff-Appellant,

v.

NORTH HUDSON REGIONAL

FIRE & RESCUE, DIRECTOR

MICHAEL DEORIO and DIRECTOR

JEFF WELZ,

Defendants-Respondents.

_________________________________

Argued on May 20, 2019 – Decided July 30, 2019

Before Judges Haas, Sumners and Susswein.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-1443-15.

Wolodymyr P. Tyshchenko argued the cause for

appellant (Caurso Smith Picini PC, attorneys; Louis A.

Zayas and Cody Bonk, on the briefs).

Eric Labes Harrison argued the cause for respondents

North Hudson Fire & Rescue, Michael DeOrio, and Jeff

Welz (Methfessel & Werbel, attorneys; Brent Robert

Pohlman, of counsel; Raina Marie Johnson, on the

briefs).

Michael Archangel D'Anton, Sr. argued the cause for

respondent Michael DeOrio (Chasan Lamparello

Mallon & Cappuzzo, PC, attorneys; Michael Archangel

D'Anton, Sr., of counsel and on the briefs).

David F. Corrigan argued the cause for respondent Jeff

Welz (David F. Corrigan LLC, attorneys; David F.

Corrigan, of counsel and on the brief).

PER CURIAM

Plaintiff William Sharp appeals from a Law Division order granting

summary judgment to defendants North Hudson Regional Fire & Rescue (North

Hudson), and Co-Executive Directors Michael DeOrio and Jeff Welz,

dismissing with prejudice his complaint alleging violations of the New Jersey

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the New Jersey

Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Sharp contended his rights

were violated when he was forced to take involuntary disability retirement from

his firefighter position with North Hudson due to his injured knee. On appeal,

he contends summary judgment should not have been granted because there

were issues of material facts and discovery was incomplete. In light of the

competent evidence in the record and the prevailing legal principles, we affirm

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substantially for the reasons set forth by Judge Joseph V. Isabella in his cogent

written statement of reasons.

I.

We summarize the following facts from the record, viewing "the facts in

the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co.

v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)).

Sharp's Work-Related Injury and Its Effects

After being employed as an active-duty firefighter with North Hudson for

eighteen months, Sharp tore the meniscus in his left knee after he slipped off a

firetruck on May 30, 2009. Surgery followed, causing him to remain out of work

until September. He was then placed on modified duty – performing clerical

duties at North Hudson's headquarters – per North Hudson's policy. He took

another leave from work after having microfracture surgery in May 2010. In

August 2010, he underwent a functional capacity evaluation (FCE), which

determined that he was not fit for, or capable of, engaging in firefighting

activities. When Sharp returned to work from his second long-term leave of

absence in September 2010, he was again placed on modified duty.

In October 2011, another FCE determined Sharp was fit for active

firefighting duty. However, before returning to active duty, he sought a second

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opinion from another doctor to determine if his knee was fit. The doctor

concluded that he was unable to perform the duties of a firefighter; specifically,

not being able to lift any object in excess of seventy-five pounds, climb a ladder,

or crawl.

In August 2012, North Hudson Fire Chief Frank Montague asked Sharp if

he could obtain political help for himself. 1 Additionally, DeOrio explained how

Sharp could be declared fit for active duty so that he could return to his

firefighting position, or remain on modified duty until he had enough time to be

eligible for a pension. 2 A union representative told Sharp he was being kept on

modified duty long enough so that he would be eligible for a pension. Although

North Hudson permitted Sharp to remain on modified duty for approximately

four years, its policy only permits employees to remain on modified duty for up

to one year.

In February 2013, an orthopedic specialist recommended that Sharp

undergo knee replacement surgery; however he elected not to undergo the

procedure. Sharp believed it would be highly unlikely that he would ever be

1

Sharp recorded the conversation without Montague's consent.

2

DeOrio could not remember whether he held the conversation with Sharp or

the union.

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able to resume full firefighting activities even if he underwent knee replacement

surgery.

Based upon the recommendations of its co-executive directors, North

Hudson's management committee passed a resolution on March 25, 2013,

authorizing the submission of an involuntary disability retirement application

for Sharp with the Police and Firemen's Retirement System (PFRS). Sharp was

subsequently placed on a leave of absence without pay effective May 1. In the

ensuing evaluation to determine his eligibility for disability retirement, Dr.

Richard Rosa opined that Sharp was totally and permanently disabled

concerning his duties as a firefighter. Although the record is not clear, based on

the ensuing litigation, it would appear that the application was granted by the

PFRS.

Civil Litigation

On March 24, 2015, Sharp filed a complaint alleging claims of unlawful

discrimination under the LAD, by not granting him reasonable accommodation

for his knee injury, and civil rights violations under the NJCRA by refusing to

accommodate him due to his lack of political affiliation and retaliating against

him for engaging in protected activities – filing complaints, refusing to sign

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waivers on the date of his termination, and considering filing a disability claims

lawsuit.

During discovery, Sharp noticed the deposition of Weehawken Mayor

Richard Turner, a member of the North Hudson management committee.

Defendants unilaterally adjourned the deposition, followed by DeOrio's motion

for a protective order to prevent the taking of Mayor Turner's deposition,

claiming: no new information would result; the deposition was intended to

harass and coerce a settlement; he is a high-ranking government official

invoking the deliberative process privilege; and he lacked personal knowledge

of Sharp's termination. Judge Isabella granted the motion because there were

less intrusive and burdensome ways to acquire the information Sharp sought –

assessing the credibility of the North Hudson management committee as to their

motive behind involuntarily retiring him – such as deposing one of the other

four commissioners.

While the protective order motion was pending, defendants filed summary

judgment motions to dismiss Sharp's complaint and all cross-claims on the basis

that he could not establish claims under the NJCRA and LAD because: his

termination stemmed entirely from his inability to perform essential functions

of his job; no information was provided showing that he engaged in any

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protected activity connected to defendants' submission of an application for

involuntary disability retirement benefits; and he is not entitled to punitive

damages. Sharp opposed the motions. Judge Isabella heard counsel's arguments

and granted the motions in their entirety, dismissing Sharps' complaint with

prejudice. In his statement of reasons, Judge Isabella determined "[d]efendants

have not discriminated against [Sharp] in anyway and there is no political

affiliation or lack thereof that has prevented [Sharp] from remaining on light

modified duty for a period longer than allowed." The judge cited Potente v.

County of Hudson, 187 N.J. 103, 110-11 (2006) (quoting N.J.A.C. 13:13-

2.8(a)), which provided, "an employer is not required to take actions 'where it

can reasonably be determined than an . . . employee, as a result of the individual's

disability, cannot perform the essential function of the job even with reasonable

accommodation.'" Thus, the judge reasoned, "[w]hen [Sharp] was presented

with the option to undergo a medical procedure that would lead to a likelihood

he could return to work, [he] refused. As such, [d]efendants were left with no

option but to file for an involuntary disability retirement for [him]." This appeal

followed.

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II.

We are guided by the well-known principle that we review a ruling on a

summary judgment motion de novo, applying the same standard governing the

trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199

(2016)). Thus, we consider, as the motion judge did, "'whether the co mpetent

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.'" Holmes v. Jersey City

Police Dep't, 449 N.J. Super. 600, 602-03 (App. Div. 2017) (citation omitted).

If there is no genuine issue of material fact, we must then "'decide whether the

trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation

omitted). We review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Applying these standards, we discern no reason to disturb Judge Isabella's order.

A.

We first address Sharp's contentions that the judge erred in granting

summary judgment because there were material facts in dispute regarding

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whether defendants could have offered him another position to reasonably

accommodate his disability, rather than force his disability retirement. He

argues there were sufficient facts in the record for a jury to conclude such a

position was available. Sharp claims there are numerous instances in the record

that reflect DeOrio's recommendations to terminate his employment. He asserts

that defendants treated him disparately compared to other similarly situated

employees by refusing to accommodate his severe workplace injury and

recommending his involuntary retirement, while treating other politically-

connected employees more favorably. He also contends that summary judgment

should not have been granted as there was incomplete discovery because he was

prohibited from taking Mayor Turner's deposition.

Having considered Sharp's contentions in light of the governing

principles, we conclude that his arguments are without sufficient merit to

warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We

therefore affirm substantially for the reasons stated by Judge Isabella. We add

the following comments.

LAD Claims

To establish a LAD prima facie case of failure to accommodate, a plaintiff

must demonstrate:

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1) the employer knew about the employee's disability;

2) the employee requested accommodations or

assistance for his or her disability; 3) the employer did

not make a good faith effort to assist the employee in

seeking accommodations; and 4) the employee could

have been reasonably accommodated but for the

employer's lack of good faith.

[Victor v. State, 203 N.J. 383, 415 (2010) (internal

quotation marks omitted) (quoting Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 317-18 (3d Cir.

1999)).]

An employee need not place a request for a reasonable accommodation in

writing, or even use the phrase "reasonable accommodation." Tynan v. Vicinage

13 of the Superior Court of N.J., 351 N.J. Super. 385, 400 (App. Div. 2002).

However, the employee must make clear that assistance is desired. Ibid. Once

such a request is made, "the employer must initiate an informal interact ive

process with the employee[,]" to identify possible reasonable accommodations

that could be implemented "to overcome the employee's precise limitations

resulting from the disability." Ibid. The employer must make a "reasonable

effort to determine the appropriate accommodations." Ibid.

Defendants clearly satisfied these requirements. Sharp was

accommodated with modified duty for four years, which was well beyond the

one-year time period set forth in North Hudson's policy. Yet, he asserts

defendants, specifically identifying DeOrio as the person making the

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recommendation to North Hudson to submit an application for his involuntary

disability retirement, terminated his employment because of his disability. To

the contrary, North Hudson did not terminate Sharp. Sharp refused to go through

with a knee replacement procedure that North Hudson suggested, and would

have given him the opportunity to return to full active duty. Thus, North Hudson

was left with no other recourse but to pursue involuntary disability retirement

because Sharp was no longer able to perform his duties as a firefighter.

Consequently, we see no basis for a reasonable jury to conclude that Sharp was

terminated because of his disability in violation of the LAD.

NJCRA Claim

The NJCRA in pertinent part states that:

Any person who has been deprived of . . . any

substantive rights, privileges or immunities secured by

the Constitution or laws of this State, or whose exercise

or enjoyment of those substantive rights, privileges or

immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by

a person acting under color of law, may bring a civil

action for damages and for injunctive or other

appropriate relief.

[N.J.S.A. 10:6-2(c) (emphasis added).]

Thus, the NJCRA provides a cause of action to any person who has been

deprived of any rights under either the federal or state constitutions by a

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"person" acting under color of law. N.J.S.A. 10:6-2(c). The NJCRA, modeled

after the Federal Civil Rights Act, 42 U.S.C. § 1983, affords "a remedy for the

violation of substantive rights found in our State Constitution and laws." Brown

v. State, 442 N.J. Super. 406, 425 (App. Div. 2015) (quoting Tumpson v. Farina,

218 N.J. 450, 474 (2014)).

Sharp asserts he satisfied the three-part test for establishing that he was

terminated due to political affiliation, prohibited by the First Amendment, by

showing that: (1) he was a public employee "in a position that does not require

political affiliation"; (2) he "engaged in constitutionally protected conduct"; and

(3) his "conduct was a substantial or motivating factor in the government's

employment decision[]" to seek his termination through. Stephens v. Kerrigan,

122 F.3d 171, 176 (3d Cir. 1997). In support, he cites Chief Montague's

suggestion that he reach out to political connections to help him maintain his

employment, and alleged evidence that other injured firefighters, who were

politically connected, remained on modified duty until they voluntarily retired.

Sharp's NJCRA claim was appropriately dismissed. He presented no

evidence in discovery indicating that he engaged in any protected conduct.

Taking Chief Montague's statement at face value, it suggested to Sharp that

unless he had a "political" godfather, there was nothing that could be done to

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keep him employed because he was not physically fit to perform his firefighter

position and he had served on modified duty much longer than North Hudson's

policy allowed. In fact, Sharp admitted to being politically affiliated with

individuals that were supportive of the political party in control of North Hudson

at the time the application for his involuntary disability retirement was

approved. As for his claim that he was disparately treated compared to other

similarly situated firefighters, Sharp failed to identify any similarly situated

disabled firefighter who was treated more favorably than he was due to political

connections. Based upon the record, it is clear that Sharp was relieved of his

duties because he was not physically fit as evidenced by medical reports and the

FCEs, not because North Hudson terminated him.

Alleged Incomplete Discovery

Sharp asserts that because he was not allowed to take the deposition of

Mayor Turner, discovery was incomplete, and therefore a bar to granting

defendants' summary judgment. Although Rule 4:46-1 permits a party to file a

motion for summary judgment before the close of discovery, "[g]enerally,

summary judgment is inappropriate prior to the completion of discovery."

Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)

(citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)). A party

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opposing a motion for summary judgment on the grounds that discovery is

incomplete, however, must "demonstrate with some degree of particularity the

likelihood that further discovery will supply the missing elements of the cause

of action." Badiali v. New Jersey Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015)

(quoting Wellington, 359 N.J. Super. at 496). The party must identify the

specific discovery that it maintains is still needed. See Trinity Church v.

Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party opposing

summary judgment on the ground that more discovery is needed must specify

what further discovery is required, rather than simply asserting a generic

contention that discovery is incomplete."). "[D]iscovery need not be undertaken

or completed if it will patently not change the outcome." Minoia v. Kushner,

365 N.J. Super. 304, 307 (App. Div. 2004) (citations omitted).

Sharp, however, fails to specify with sufficient particularity how the

deposition of Mayor Turner would change the outcome of this case. Moreover,

he did not appeal Judge Isabella's protective order. Based on our conclusion

above that summary judgment was proper because Sharp did not have viable

LAD or NJCRA claims, we fail to discern how additional discovery would alter

our thinking.

Affirmed.

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