# GEORGE E. PEARSON v. BOROUGH OF KEANSBURG (L-4135-18, MONMOUTH COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · October 24, 2022

URL: https://www.frixlaw.com/law-library/cases/8375565

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** October 24, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8375565

## How later opinions describe it (automated extraction)

- explaining that the overall approach of the TCA is to broadly limit public entity liability

## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-3762-20

GEORGE E. PEARSON,

Plaintiff-Appellant,

v.

BOROUGH OF KEANSBURG,
BOROUGH OF KEANSBURG
POLICE DEPARTMENT,
KEANSBURG BOARD OF
EDUCATION, and JOHN NIESZ,
KEANSBURG
SUPERINTENDENT OF
SCHOOLS,

Defendants-Respondents.
______________________________

Argued October 6, 2022 – Decided October 24, 2022

Before Judges Sumners, Geiger, and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-4135-18.

John C. Feggeler, Jr., argued the cause for appellant.

Michael A. Pattanite, Jr., argued the cause for
respondents Keansburg Board of Education and John
Niesz, Keansburg Superintendent of Schools (Lenox,
Socey, Formidoni, Giordano, Lang, Carrigg & Casey,
LLC, attorneys; Michael A. Pattanite, Jr., on the brief).

Brian P. Trelease argued the cause for respondents
Borough of Keansburg and Borough of Keansburg
Keansburg Police Department (Rainone Coughlin
Minchello, LLC, attorneys; Brian P. Trelease, of
counsel and on the brief).

PER CURIAM

Plaintiff George E. Pearson appeals from Law Division orders: (1)

granting summary judgment dismissing his claims against defendants

Keansburg Board of Education (Board), Superintendent of Schools John Niesz

(Niesz), Borough of Keansburg (Borough), and Borough of Keansburg Police

Department (KPD); and (2) denying plaintiff's motion for partial summary

judgment. We affirm each of the orders.

We glean the following facts from the summary judgment record, viewing

them in the light most favorable to the non-moving party. See Richter v.

Oakland Bd. of Educ., 246 N.J. 507, 515 (2021).

Pritchard Industries, Inc. (Pritchard) had a contract (the Contract) with the

Board to provide custodial services for the schools in the Borough of Keansburg

School District (District). Plaintiff, who is African American, was employed as

a custodian by Pritchard from July 30, 2015 to November 28, 2016. Plaintiff

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was assigned by Pritchard as the head custodian at the District's Joseph Caruso

Elementary School (elementary school).

The Contract expressly provided that "Pritchard will perform its services

hereunder as an independent contractor, and nothing in this Agreement shall be

deemed to make Pritchard, or its employees, a common law employee, agent,

partner or fiduciary of, or joint venturer with, District." The Contract further

provides that all personnel actions with respect to the Pritchard employees "shall

be the sole responsibility of Pritchard." The Contract also states: "If a Pritchard

Manager or Service employee should become unacceptable to District's Chief

Executive Officer or such officer's designated representative, then District's

Chief Executive Officer or designated representative may request his or her

removal and Pritchard will provide a mutually acceptable replacement within a

reasonable time thereafter." The term "unacceptable" is not defined in the

Contract. The Contract requires the District to "provide Pritchard with

reasonable office space, storage and locker space, warehouse and distribution

space and services at District Facilities, at no cost to Pritchard" while they

perform work for the District.

Plaintiff was furnished with a key to the elementary school. On Sunday,

November 27, 2016, plaintiff used that key to gain unauthorized entrance to the

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elementary school during non-school hours to run laps with his son in the

school's gymnasium.

Plaintiff was previously assigned to the District's high school. There he

requested and was granted permission by the high school's athletic director, to

use the high school gym. That permission did not extend to the District's other

schools. Plaintiff did not request permission to use the elementary school's gym

after his transfer to that school.

Pritchard issued guidelines to its employees. The guidelines state: "Never

use customer property for any reason." They also state: "Always return keys

that are given to you each night after you have finished your work."

On the date of the incident, a security guard was on duty at the elementary

school. The guard observed plaintiff and his son using the gym and contacted

police stating that she did not know if plaintiff's entry into the school was

authorized. KPD Officer Francis Wood responded to the elementary school.

Plaintiff advised Wood that he was permitted to be in the gym because he was

the school's custodian. Shortly after speaking with plaintiff, Wood departed

from the elementary school without further action. Plaintiff and his son

remained at the elementary school and proceeded to work out in the gym.

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The following day, Niesz spoke with the security guard about what had

transpired. Niesz instructed Officer John Sorano, the District's school resource

officer, to review the video tape recording from the elementary school from the

prior evening. Officer Sorano reviewed the video tape and reported to Niesz

that the video footage showed plaintiff "was in the gym." Plaintiff was removed

from performing services under the Contract and terminated by Pritchard.

That same day, the District informed Pritchard that they were barring

plaintiff from working in the District for entering the elementary school

premises at an off-hour while school was not in session. It is undisputed that

plaintiff's access to the school on November 27, 2016, was not related to his

employment with Pritchard. This litigation followed.

On May 2, 2019, plaintiff filed a seven-count complaint alleging: (1) a

discrimination claim against the KPD, Board, and Niesz under the New Jersey

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; (2) a hostile work

environment claim under LAD against the Board and Niesz; (3) claims against

the Board and Niesz under Title VII of the Civil Rights Act of 1964 and 42

U.S.C. §§ 2000e to 2000e-17; (4) a violation of civil rights claim against the

Board and Niesz under 42 U.S.C. § 1983; (5) tortious interference with a

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contractual relationship against the Board and Niesz; (6) negligence against the

Board and Niesz; and (7) negligence against the Borough and KPD.

In August 2019, the Board and Niesz moved pursuant to Rule 4:6-2(e) to

dismiss the LAD hostile work environment claim, Section 1983 claim, tortious

interference with a contractual relationship claim, and negligence claim, for

failure to state a claim upon which relief may be granted. The court issued an

order dismissing the LAD hostile work environment and negligence claims

against the Board and Niesz. Discovery related to the remaining claims

continued.

Plaintiff acknowledged during his deposition that after being moved from

the high school to the elementary school, he never sought permission from the

principal or his Pritchard supervisor to use the elementary school gym. Nor did

plaintiff fill out any type of District form requesting to use the elementary school

gym.

Plaintiff testified he reported to the elementary school principal. Plaintiff

also took direction from whomever had a problem inside the elementary school.

Niesz acknowledged at his deposition the KPD officers have permission

to use District facilities such as school gymnasiums. The KPD was entirely

Caucasian at the time.

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Niesz testified that he did not have the authority to fire plaintiff as plaintiff

worked for Pritchard, not the District. He acknowledged he requested that

plaintiff be removed from performing services in the District under the Contract.

Niesz testified there is a blanket District policy providing that no one is

permitted to enter District buildings and use District facilities "without filling

out what's called a use premise request."

Niesz testified that he was a defendant in litigation brought against him as

the Superintendent of the Bayonne City Schools by a person who claimed she

was passed over for a position.

Following the completion of discovery, plaintiff moved for partial

summary judgment against the Board and Niesz on his tortious interference with

a contractual relationship claim. Defendants moved for summary judgment on

all remaining claims. On July 13, 2021, the court issued an oral decision and

orders that denied plaintiff's motion and granted defendants summary judgment

dismissing all remaining claims with prejudice.

This appeal followed. Plaintiff raises the following points for our

consideration:

POINT ONE

STANDARD OF APPELLATE REVIEW.

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POINT TWO

THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS AS TO PLAINTIFF'S CAUSE OF
ACTION FOR TORTIOUS INTERFERENCE WITH
THE CONTRACT BETWEEN THE PLAINTIFF AND
PRITCHARD INDUSTRIES.

A. Actual Interference with Pritchard-Plaintiff
Contract.

B. Interference was Inflicted Intentionally.

C. Interference was Without Justification.

D. The Interference Caused Damage.

POINT THREE

THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS BOROUGH OF KEANSBURG AND
BOROUGH OF KEANSBURG POLICE
DEPARTMENT AS GENUINE ISSUES OF
MATERIAL [FACT] REMAIN IN DISPUTE.

POINT FOUR

DEFENDANTS BOROUGH OF KEANSBURG AND
BOROUGH OF KEANSBURG POLICE
DEPARTMENT OWED A DUTY OF CARE TO THE
PLAINTIFF.

POINT FIVE

THE TRIAL COURT ERRED IN FINDING THAT
PLAINTIFF WAS NOT AN EMPLOYEE FOR THE

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PURPOSES OF LAD, TITLE VII OF CIVIL RIGHTS
ACT OF 1964, AND 42 U.S.C. § 1983 PROTECTION.

POINT SIX

THE TRIAL COURT ERRED IN HOLDING THAT
PLAINTIFF DID NOT SATISFY THE BURDEN
IMPOSED UPON HIM TO ESTABLISH
DISCRIMINATION.

We affirm substantially for the reasons expressed by the judge in her

comprehensive oral decision. We add the following comments.

A motion for summary judgment must be granted "if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c). The court must "consider whether the competent

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." Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"To decide whether a genuine issue of material fact exists, the trial court

must 'draw[] all legitimate inferences from the facts in favor of the non -moving

party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)

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(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's

function is not 'to weigh the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,

Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540).

We review the grant or denial of a motion for summary judgment de novo,

applying the same standard used by the trial court. Samolyk v. Berthe, 251 N.J.

73 (2022). We consider "whether the competent 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." Brill, 142 N.J. at 540.

Tortious Interference with Contractual Relations

In count five of his amended complaint, plaintiff alleges the Board and

Niesz tortiously interfered with his employment contract with Pritchard.

To establish a claim for tortious interference with
contractual relations, a plaintiff must prove: (1) actual
interference with a contract; (2) that the interference
was inflicted intentionally by a defendant who is not a
party to the contract; (3) that the interference was
without justification; and (4) that the interference
caused damage.

[Russo v. Nagel, 358 N.J. Super. 254, 268 (App. Div.
2003) (citing 214 Corp. v. Casino Reinvestment Dev.
Auth., 280 N.J. Super. 624, 628 (Law. Div. 1994)).]

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As to the second prong of that test, the judge noted plaintiff asserted that

Niesz individually and as a representative of the Board, was not a party to the

Pritchard/plaintiff employment contract yet requested that plaintiff be

terminated from employment at the District's schools. The judge noted,

however, that Niesz requested that plaintiff be removed from employment at the

district under the Pritchard/District contract, not terminated from employment

with Pritchard altogether. We agree. The record shows that Niesz directed

Pritchard to remove plaintiff from working at any of the District's schools

because he was not acceptable. Neither Niesz nor the Board asked or demanded

that plaintiff be fired by Pritchard. Pritchard made the decision to terminate

plaintiff's employment.

The judge found that viewing the facts in the light most favorable to

plaintiff, there was no evidence to suggest that Niesz or the Board requested

Pritchard to fire plaintiff or otherwise intended to interfere with plaintiff's

employment contract with Pritchard. The judge explained that although

defendants' request to remove plaintiff from working at District schools "may

have influenced Pritchard's decision to terminate plaintiff does not amount to a

showing of intentional interference" with plaintiff's employment by Pritchard

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"as a matter of law." Accordingly, the judge found plaintiff could not satisfy

the second prong. We agree.

As to the third prong, which requires that the interference is without

justification, the judge noted Niesz clarified that plaintiff could not be allowed

to remain working at District schools because he and his son entered the

elementary school without permission. The fact that the security guard and

responding police officer did not remove plaintiff and his son from the building

was not controlling. Plaintiff was aware of Pritchard's policy that employees

should never use customer property for any reason for non-work purposes. The

judge found that having an authorized work key to access the school for work

purposes did not equate to permission for plaintiff to use the key to access the

school for non-work purposes.

Nor did the fact that plaintiff at one time had permission to use the high

school gym confer plaintiff with the right to use any gym at any school in the

district without obtaining permission from the District or its authorized

representative. The judge also found that there was no indication in the record

that plaintiff sought permission to use the elementary school's gym from his

Pritchard supervisor.

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The judge nevertheless concluded there was a question of fact whether

plaintiff's removal from working at the District's schools was justified under the

terms of the Contract due to being caught trespassing on school property in

violation of District policy. We part company with the judge in that respect.

The judge found "there is no evidence that defendants intended for plaintiff to

be terminated from his employment with Pritchard" rather than just being

removed from working at the District's schools. The record supports that

finding.

Undisputed facts in the record demonstrate that plaintiff did not request

or obtain permission to use the elementary school's gymnasium when the school

was closed. Plaintiff and his son entered the school when it was closed to use

the gym in violation of District policy and Pritchard's employee policy. The

Board's decision to remove plaintiff from working at its schools was justified

under these circumstances. Therefore, plaintiff cannot satisfy the third prong.

plaintiff was unable to satisfy the second and third prongs. His tortious

interference claims against the Board and Niesz were properly dismissed.

LAD, Title VII, and Section 1983 Claims Against the Board and Niesz

The LAD prohibits unlawful employment discrimination. N.J.S.A. 10:5-

12; Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002). "The LAD was enacted

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to protect not only the civil rights of individual aggrieved employees but also to

protect the public's strong interest in a discrimination-free workplace." Lehman

v. Toys R Us, Inc., 132 N.J. 587, 600 (1993) (citing Fuchilla v. Layman, 109

N.J. 319, 334 (1988)). The LAD prohibits an employer from engaging in

discrimination based on race against any individual by "refus[ing] to hire or

employ or to bar or to discharge . . . from employment such individual."

N.J.S.A. 10:5-12.

New Jersey has adopted the procedural burden-shifting methodology set

forth in McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973). Zive v.

Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). To establish a prima facie case

of discriminatory discharge, plaintiff must prove: "(1) he was in the protected

group; (2) he was performing his job at a level that met his employer's legitimate

expectations; (3) he nevertheless was fired; and (4) the employer sought

someone to perform the same work after he left." Zive, 182 N.J. at 450.

The judge noted that in Pukowsky v. Caruso we stated that "independent

contractors are not to be considered 'employees' within the meaning of the LAD,

and are therefore not entitled to avail themselves of its protections." 312 N.J.

Super. 171, 180 (App. Div. 1998) (citing Lehman,132 N.J. at 600-01). We agree

that independent contractors cannot recover under the LAD.

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Plaintiff argues that the judge incorrectly concluded that he did not qualify

as an employee of the Board to obtain protection under the LAD. We disagree.

The judge applied the twelve-factor test adopted in Pukowsky for determining a

worker's status as an employee or an independent contractor. 312 N.J. Super. at

182-83. Upon doing so, the judge found that the factors "overwhelmingly weigh

in favor of plaintiff's status as an independent contractor." The record supports

those findings.

The judge also found that the plain language of the Contract identified

Pritchard's workers as independent contractors. The judge found this

designation to be "fatal" as to counts one, three, and four of plaintiff's amended

complaint. We concur that plaintiff cannot recover against the Board or Niesz

under the LAD.

Plaintiff was employed by Pritchard, not the Board. Pritchard was an

independent contractor of the Board. The LAD did not create a cause of action

for employment discrimination against entities or persons that are not the

claimant's employer. See Pukowsky, 312 N.J. Super. at 180; N.J.S.A. 10:5-12(a)

(stating it is "unlawful discrimination [f]or an employer" to discriminate against

an individual because of race). Plaintiff had no viable cause of action against

the Board or Niesz because they were not his employer.

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Regarding the substance of plaintiff's claims under LAD, Title VII, and

Section 1983, the judge found no evidence that would support a finding of any

form of discrimination by the Board or Niesz, much less discrimination based

on race. The judge noted that plaintiff's arguments in support of his LAD, Title

VII, and Section 1983 claims were similar to his tortious interference arguments.

The judge reiterated that "there is no evidence that defendants intended for

plaintiff to be terminated from his employment with Pritchard." On the contrary,

the judge stated "there's nothing to show any intent, any malice, any . . .

intention" on the part of Niesz "that he intended that . . . plaintiff be terminated

from his contract with . . . Pritchard. It's just not there." Because there was no

evidence of malicious and intentional interference by the Board or Niesz, the

court concluded that defendants' motions for summary judgment should be

granted.

We concur. Aside from the fact that the Board was not plaintiff's

employer, plaintiff has not produced any evidence that the Board or Niesz

engaged in racial discrimination or violated his civil rights.

The fact that the District allowed KPD officers, who were all Caucasian,

to use the weight room at the high school does not demonstrate the Board treated

plaintiff differently. First, the KPD officers were given permission to use that

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facility. Second, plaintiff himself was given permission to use the gymnasium

at the high school when he asked for it. When plaintiff was transferred to the

elementary school, he neither sought nor obtained permission to use the

elementary school's gym. Contrary to school policy, he and his son used the

gym anyway.

Plaintiff's reliance on Niesz being named as a defendant in a separate

action involving the Bayonne School District is misplaced. The unproven

allegations raised in that action relate to unconnected subsequent events.

Negligence Claim Against the KPD

Relying on Adams v. City of Camden, 461 F. Supp. 2d 263, 266 (D.N.J.

2006) (citing N.J.S.A. 40A:14-118), the judge explained that "a municipal police

department is not an entity separate from the municipality." Therefore, the court

concluded "a police department cannot be sued in conjunction with a

municipality because they are . . . administrative arms of local municipalities,

not separate entities." Plaintiff did not oppose dismissal of the KPD. The judge

dismissed the claims against the KPD with prejudice. The KPD is not a separate

legal entity from the Borough. Claims seeking liability for actions of municipal

police officers are properly brought against the municipality, not the police

department. Naming the police department as a defendant is legally equivalent

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to naming the municipality. Accordingly, we analyze plaintiff's negligence

claims as though they were brought against the Borough.

Negligence Claim Against the Borough

Negligence claims against public entities in New Jersey are governed by

the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. As a general

proposition, liability of public entities is the exception and immunity from

liability is the rule under the TCA. Fluehr v. City of Cape May, 159 N.J. 532,

539 (1999); see also N.J.S.A. 59:1-2 (declaring it "to be the public policy of this

State that public entities shall only be liable for their negligence within the

limitations of [the TCA] and in accordance with the fair and uniform principles

established [t]herein"); D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130,

133-34 (2013) (explaining that the overall approach of the TCA is to broadly

limit public entity liability). To that end, the public policy adopted by the

Legislature is to construe the immunity provisions of the TCA broadly and the

liability provisions narrowly. Gerber v. Springfield Bd. of Educ., 328 N.J.

Super. 24, 34 (App Div. 2000).

The trial court noted that plaintiff did not respond to any of the defenses

raised by the Borough under the TCA. Instead, plaintiff raised a new argument

regarding the actions of Officer Sorano, which was not pled in the original or

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amended complaint. Sorano was not named as a defendant in the amended

complaint.

Plaintiff alleges that Sorano negligently relayed what he had seen on the

surveillance footage to Niesz. Plaintiff claims it is for the jury to determine

whether Sorano purposely provided a false account of the video surveillance

footage to Niesz. The Borough responded that there is nothing in the record that

suggests Sorano was not truthful when he testified that he told Niesz that

plaintiff remained in the gymnasium. The Borough further argued that it is not

liable for the intentional acts of its employees under the TCA. See N.J.S.A.

59:2-10 ("A public entity is not liable for the acts or omissions of a public

employee constituting . . . actual malice, or willful misconduct."). The Borough

also argued that plaintiff's theory that Sorano and Niesz conspired together to

exonerate Niesz failed for the same reason of intentionality.

The judge found that plaintiff mischaracterized Sorano's deposition

testimony. Sorano testified that the camera footage of the incident showed

plaintiff and his son in the elementary school gym and that plaintiff's son was

doing some type of physical activities in the gym. The judge noted Sorano did

not testify that he told Niesz plaintiff was allowed to remain in the gym.

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In addition, the judge found plaintiff's claims involving Sorano were

improperly raised for the first time in opposition to the summary judgment

motion and were not a basis to find that an issue of material fact existed

sufficient to defeat the Borough's motion for summary judgment.

The judge then addressed the Borough's affirmative defenses under the

TCA. The Borough asserted immunity under N.J.S.A. 59:2-2(b) because Wood

was immune under N.J.S.A. 59:3-2(a) for exercising the judgment and discretion

vested in him in performing an investigation of an unknown male on the

premises of the school on the date of the incident. The judge found Wood was

vested with the judgment and discretion to permit plaintiff to remain in the

gymnasium based upon the information provided by the security guard's

supervisor. As such, the judge concluded the TCA's discretionary immunity

exception to liability applied. The judge found there were no material facts in

dispute regarding whether Wood's actions were undertaken in good faith and

were objectionably reasonable. Therefore, Wood was entitled to immunity from

plaintiff's negligence claims under N.J.S.A. 59:3-2(a) and N.J.S.A. 59:3-3.1 In

1
N.J.S.A. 59:3-2(a) provides that "[a] public employee is not liable for an injury
resulting from the exercise of judgment or discretion vested in him." N.J.S.A.
59:3-3 provides that "[a] public employee is not liable if he acts in good faith in
the execution or enforcement of any law."
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turn, pursuant to N.J.S.A. 59:2-2(b), "[a] public entity is not liable for an injury

resulting from an act or omission of a public employee where the public

employee is not liable."

For these reasons, the trial court granted summary judgment dismissing

plaintiff's claims against the Borough with prejudice. We concur that there was

no viable cause of action against the Borough for the actions or inactions of

Officers Wood and Sorano. The claims against the Borough were properly

dismissed with prejudice.

To the extent we have not expressly addressed plaintiff's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8375565. Public record. Not legal advice.