ROGERS v. PLUMSTED TOWNSHIP BOARD OF FIRE COMMISSIONERS FIRE DISTRICT NO. 1 et al

Filing 47

OPINION filed. Signed by Judge Brian R. Martinotti on 1/31/2019. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
:
DAVID R. ROGERS, JR.,
:
:
Plaintiff,
:
:
v.
:
:
PLUMSTED TOWNSHIP BOARD OF
:
FIRE COMMISSIONERS FIER DISTRICT :
NO. 1 and NEW EGYPT FIRST AID AND :
EMERGENCY SQUAD, INC.,
:
:
Defendants,
:
:

Civil Action No. 16-00594-BRM-DEA

OPINION

MARTINOTTI, DISTRICT JUDGE
Before the Court is Plumsted Township Board of Fire Commissioners Fire District No. 1
(“District No. 1”) and New Egypt First Aid and Emergency Squad, Inc.’s (collectively,
“Defendants”) Motion for Summary Judgment. (ECF No. 33.) Plaintiff David R. Rogers (“Rogers”)
opposes the Motion. (ECF No. 45.) Having reviewed the parties’ submissions filed in connection
with the motions and having declined to hold oral argument, pursuant to Federal Rule of Civil
Procedure 78(b), for the reasons set forth below, and for good cause shown, Defendants’ Motion for
Summary Judgment is GRANTED in part as to Rogers’ American with Disabilities Act (“ADA”)
claim and DENIED in part as MOOT as to Rogers’ state law claims, and the Court REMANDS
the matter to the Superior Court of New Jersey, Ocean County.
I.

BACKGROUND
The Court has, through its best efforts, taken the limited facts stated herein from the

Complaint and legal memoranda, to the extent the parties directed its attention to them and properly
cited to the record. “In reviewing the summary judgment evidence, the Court has no duty to search
1

the record for triable issues; rather, it need rely only on those portions of the evidentiary record to
which the nonmoving party directs its attention.” Tilley v. Allegheny Cty. Jail, No. 09-299, 2010 WL
3522115, at *3 (W.D. Pa. Sept. 8, 2010); (citing Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404
(6th Cir. 1992); Ne. Nat’l Ins. Co. v. Baltes, 15 F.3d 660, 662–63 (7th Cir. 1994) (stating “judges are
not archaeologists. They need not excavate masses of papers in search of revealing tidbits-not only
because the rules of procedure place the burden on the litigants, but also because their time is
scarce.”)).
Counsel for each party submitted statements of material fact that do not comply with the
Local Civil Rule 56.1. See L. Civ. R. 56.1 (a) (stating that “[o]n motions for summary judgment, the
movant shall furnish a statement which sets forth material facts as to which there does not exist a
genuine issue, in separately numbered paragraphs citing to the affidavits and other documents
submitted in support of the motion. . . . Each statement of material facts shall be a separate document
(not part of a brief) and shall not contain legal argument or conclusions of law”). Defendants’ counsel
submitted within their moving brief a statement of facts with only ten separately numbered
paragraphs, most of which describe only the procedural history of the case both at the administrative
level and before this Court. Defendants’ Statement of Facts do not provide the Court with an
appropriate narrative of the underlying matter. (ECF No. 33-3 at 1-4.) Counsel for Rogers failed to
submit a statement of facts, and instead interwove a narrative of facts within its argument in the brief,
many of which fail to cite to the record. (See ECF No. 45.) Consequently, it has been difficult for the
Court glean the facts at issue in this matter, especially since no prior motions were ever filed, and it
is not the Court’s duty to search the record. Tilley, 2010 WL 3522115, at *3. Nevertheless, the
following seems clear.
Rogers was an Emergency Medical Service (“EMS”) Chief and firefighter for District No. 1
in the Township of Plumsted. (Compl. (Ex. A to ECF No. 1-1) ¶ 8; Def.s’ Statement of Facts (ECF
2

No. 33-3) ¶ 1; ECF No. 45 at 5.) While performing his duties, he injured his shoulder, which led him
to seek medical attention, where a physician prescribed him opioid painkillers. (Ex. A. to ECF No.
1-1 ¶ 9 and ECF No. 45 at 5.) Rogers became addicted to the opioid medication. (ECF No. 45 at 5
and ECF No. 45-2 at 12-15:25, 18:7-18). In November 2013, District No. 1 conducted a random drug
test, which Rogers failed due to his opioid intake. (ECF No. 33-3 ¶ 7 and ECF No. 45 at 7.) In
December 2013, Rogers received a notice of suspension without pay from District No. 1. (Ex. A to
ECF No. 1-1 ¶ 15.) A Laudermill 1 hearing was conduct for the disciplinary charges against Rogers
and he remained suspended without pay. (Id. ¶ 17; ECF No. 33-12.)
On January 15, 2014, Rogers notified District No. 1 of his intent to file a Tort Claim Notice
pursuant to N.J. Ann. Stat. § 59:8-1. (ECF No. 33-6.) He alleged District No. 1 had violated his rights
with respect to but not limited to: (1) the American with Disabilities Act (“ADA”); (2) the
Conscientious Employee Protection Act; (3) the New Jersey Law Against Discrimination
(“NJLAD”); (4) defamation; (5) negligent misrepresentation; (6) retaliatory discharge under the New
Jersey Workers’ Compensation law; (7) retaliatory discharge under the Worker Health and Safety
Act; (8) invasion of privacy; (9) abuse of process; (10) intentional and negligent infliction of
emotional distress; (11) breach of employment contract; (12) breach of implied duty of good faith
and fair dealing; and (13) tortious interference with his contractual relations and prospective
economic advantage. (Id.) Sometime thereafter, he filed a charge with the Equal Employment
Opportunity Commission (“EEOC”). (ECF No. 33-9.) On March 4, 2015, Rogers was discharged as
EMS Chief and firefighter. (Id. ¶ 20.) On September 21, 2015, Rogers received a Notice of Right to
Sue by the U.S. Department of Justice, Civil Rights Division, pursuant to Title I of the ADA stating:
Because you filed the above charge with the Equal
Employment Opportunity Commission, and more than 180 days have
1

In Cleveland Board of Education v. Laudermill, 470 U.S. 532 (1985), the Supreme Court held that
the discharging of a government employee without a “pretermination hearing” was a violation of due
process, even if the employee was provided access to a post-termination hearing and an appeals
process.
3

elapsed since the date the Commission assumed jurisdiction over the
charge, and no suit based thereon has been filed by this Department,
and because you through your attorney have specifically requested this
Notice, you are hereby notified that you have the right to institute a
civil action under Title 1 of the [ADA] against the above-named
respondent.
If you choose to commence a civil action, such suit must be
filed in the appropriate Court within 90 days of your receipt of this
Notice.
(Ex. A to ECF No. 1-1 ¶ 32 and ECF No. 33-9.)
On December 23, 2015, Rogers, a New Jersey resident, initiated this lawsuit against
Defendants, also all New Jersey entities, in the Superior Court of New Jersey, Ocean County, alleging
thirteen causes of action: violations of the ADA, violations of the NJLAD, violations of the New
Jersey Workers’ Compensation law, intentional infliction of emotional distress, negligent infliction
of emotional distress, breach of contract, breach of implied duty of good faith and fair dealing, unjust
enrichment, defamation, tortious interference with contractual relations, civil conspiracy, and
fictitious entity allegations. (See Ex. A to ECF No. 1-1.) On February 3, 2016, the matter was
removed to this Court based on federal question, since the first cause of action asserts a violation of
the ADA claim. (ECF No. 1 ¶ 2.) On January 29, 2018, Defendants filed a Motion for Summary
Judgment. (ECF No. 33.) Rogers opposes the Motion. (ECF No. 45.)
II.

LEGAL STANDARD
Summary judgment is appropriate “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 and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary basis on which a
reasonable jury could find for the non-moving party,” and it is material only if it has the ability to
“affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks, 455 F.3d 418, 423
(3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over
4

irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S.
at 248. “In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence
‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating
Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)); see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986); Curley v. Klem, 298 F.3d 271,
276-77 (3d Cir. 2002). “Summary judgment may not be granted . . . if there is a disagreement over
what inferences can be reasonably drawn from the facts even if the facts are undisputed.” Nathanson
v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3rd Cir. 1991) (citing Gans v. Mundy, 762 F.2d 338, 340
(3d Cir.), cert. denied, 474 U.S. 1010 (1985)); Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d
737, 744 (3d Cir. 1996).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party bears the burden of
persuasion at trial, summary judgment is appropriate only if the evidence is not susceptible to
different interpretations or inferences by the trier of fact. Hunt v. Cromartie, 526 U.S. 541, 553
(1999). On the other hand, if the burden of persuasion at trial would be on the nonmoving party, the
party moving for summary judgment may satisfy Rule 56’s burden of production by either (1)
“submit[ting] affirmative evidence that negates an essential element of the nonmoving party’s claim”
or (2) demonstrating “that the nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.” Celotex, 477 U.S. at 330 (Brennan, J., dissenting). Once
the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving
party to “go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue
for trial.” Id. at 324; see also Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d
5

238, 252 (3d Cir. 1999). In deciding the merits of a party’s motion for summary judgment, the court’s
role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there
is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of
the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete failure
of proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).
III.

DECISION
A. ADA
Defendants’ argue their Motion must be granted as a matter of law because Rogers filed this

action beyond the 90 days allotted to institute suit after receipt of a Right to Sue Letter. (ECF No.
33-3 at 7-8.) Rogers does not address this argument. (See ECF No. 45 at 5-15.) Instead, Rogers argues
he has established that Defendants violated his rights under the ADA. (Id.)
A complaint alleging discrimination under the ADA must be filed “within 90 days of the date
on which the complainant has notice of the EEOC’s decision not to pursue the administrative charge.”
U.S.C. § 2000e–5(f)(1); see also Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108 & n. 4 (3d
Cir.2003). “[T]he on-set of the 90–day period is generally considered to be the date on which the
complainant receives the right-to-sue letter.” Burgh v. Borough Council of Montrose, 251 F.3d 465,
470 (3d Cir. 2001) Courts have “strictly construed the 90–day period and held that, in the absence of
some equitable basis for tolling, a civil suit filed even one day late is time-barred and may be
dismissed.” Id. (citation omitted).
Here, Rogers acknowledges, in his Complaint, that he received his Right to Sue Letter on
6

September 21, 2015. (Ex. A to ECF No. 1-1 ¶ 32.) The record confirms such. (See ECF No. 33-9.)
The matter was filed on December 23, 2015, well beyond the 90-day period. Indeed, Rogers admits
he “filed this action subsequent to the expiration of the 90 days from the date of receiving his Right
to Sue letter.” (Ex. A to ECF No. 1-1 ¶ 33.) Because courts strictly construe the 90-day period, this
claim is time-barred. Accordingly, Defendants’ Motion for Summary Judgment as to Rogers’ ADA
claim is GRANTED.
B. Motion for Summary Judgment as to Rogers’ State Law Claims
Regarding Rogers’ remaining state law claims, violations of the NJLAD, violations of the
New Jersey Workman’s Compensation, intentional infliction of emotional distress, negligent
infliction of emotional distress, breach of contract, breach of implied duty of good faith and fair
dealing, unjust enrichment, defamation, tortious interference with contractual relations, civil
conspiracy, and fictitious entity allegations (Ex. A to ECF No. 1-1), the Court declines to exercise
supplemental jurisdiction. Under 28 U.S.C. § 1367(c), a district court may decline to exercise
supplemental jurisdiction over a claim if the court “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). Federal district courts have original jurisdiction over “all civil
actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In
exercising its discretion, “the district court should take into account generally accepted principles of
‘judicial economy, convenience, and fairness to the litigants.’” Growth Horizons, Inc. v. Del. County,
Pa., 983 F.2d 1277, 1284 (3d Cir. 1993) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966)).
Traditionally, this is not a matter upon which this Court would decline to exercise jurisdiction
over supplement claims, considering the case is nearing three years old. However, because counsel
for each side submitted statements of material fact that do not comply with the Local Civil Rule 56.1
and because it is difficult for the Court to glean the material facts at issue in this matter with respect
7

to the remaining claims, the Court would require the parties, if the matter remained in this Court, to
re-file the Motion for Summary Judgment and responsive briefs in order to comply with the Rules.
Because the parties would have to re-file their submissions, the Court finds it would not be an
inconvenience or unfair to the litigants if they re-filed these motions in the Superior Court of New
Jersey. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED in part as to Rogers’
ADA claim and DENIED in part as MOOT as to Rogers’ state law claims.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment is GRANTED

in part as to Rogers’ ADA claim and DENIED in part as MOOT as to Rogers’ state law claims.
This matter is REMANDED to the Superior Court of New Jersey, Ocean County.

Date: January 31, 2019

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

8