Melick v. Township of Oxford

• Citation: 294 N.J.Super. 386,683 A.2d 584
• Parties: , 8 NDLR P 398 Ellen Z. MELICK and Kimberly Schiereck, Plaintiffs/Appellants, v. TOWNSHIP OF OXFORD and Donald Niece, Individually and as Mayor of the Township, Defendants/Respondents.
• Decision Date: 24 October 1996
• Court: New Jersey Superior Court — Appellate Division

Page 386

294 N.J.Super. 386

683 A.2d 584, 8 NDLR P 398

Ellen Z. MELICK and Kimberly Schiereck, Plaintiffs/Appellants, v. TOWNSHIP OF OXFORD and Donald Niece, Individually and as

Mayor of the Township, Defendants/Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 16, 1996.

Decided Oct. 24, 1996.

Stephen E. Klausner, Somerville, for plaintiffs/appellants (Klausner & Hunter, attorneys; Mr. Klausner, of counsel and on the brief; James P. Madden, on the brief).

Sharon Handrock Moore, Clinton, for respondents (Gebhardt & Kiefer, attorneys; Ms. Moore, of counsel and on the brief; Deborah B. Rosenthal, on the brief).

Before Judges PETRELLA, WALLACE and KIMMELMAN.

WALLACE, J.A.D.

This is an action for wrongful discharge brought by Ellen Melick and Kimberly Schiereck, respectively, the former municipal court clerk and deputy court clerk for the Township of Oxford. Plaintiffs alleged that defendants, Township of Oxford and Donald Niece, the Mayor, fired them for reporting their concerns about poor air quality in the Oxford Municipal building where they worked and claimed that defendants' actions violated their rights under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Defendants denied plaintiffs' allegations and asserted defenses under the provisions of the Tort Claims Act, N.J.S.A. 59:9-4 to 59:9-7, as well as other defenses. Defendants' motion for summary judgment was granted. Plaintiffs appeal from that judgment. We now affirm.

The essential facts as developed in discovery are as follows. Melick began working for Oxford in 1986 and became the Court Administrator for Oxford in April 1988. Schiereck began working as Deputy Court Clerk for Oxford in May 1990.

The Oxford municipal building is over 100 years old. The bottom floor consists of a municipal garage, and the upper floor contains municipal offices and a meeting room where court is held. In 1989, Michael Spillane, a professional engineer, inspected the municipal building. He noted certain deficiencies in the building and cautioned against "large meetings in the building or significant floor loads added to the building." Spillane advised that in the near future, Oxford would have to build a new building or make renovations.

Melick was aware of odors in the building. By October 1992, she believed the odors were a serious problem. When trucks entered the garage, she would become dizzy. Melick complained to Katherine Becker, the municipal clerk. Melick had two blood tests performed, which showed elevated levels of carbon monoxide. She filed a formal complaint with Public Employees Occupational Safety and Health Administration (PEOSHA) on November 23, 1992. PEOSHA investigated the complaint and inspected the building on December 16, 1992.

On December 18, 1992, Mayor Niece wrote the State Department of Health a letter stating Oxford's initial response to Melick's complaint. The letter included the following:

1. The Public Works Director has been directed to provide improved ventilation at both ends of the building with a view toward containing any fumes generated in the first floor area.

2. The Public Works Director has been directed to secure and seal all visible openings between floors to eliminate to the extent possible air passage between the two floors.

3. The Public Works Director has further been directed to eliminate the idling of engines in the garage area to the extent practical.

On January 13, 1993, a PEOSHA official sent a copy of an inspection report to Mayor Niece, which noted that adverse health effects from carbon monoxide in the second-floor offices were possible. The report recommended that the motorized equipment be kept outdoors at all times and that the public works department "continue its new policy of working outdoors when they are performing activities that generate contaminants."

On January 29, 1993, the State Department of Community Affairs wrote to Mayor Niece about the "possibility of a collapse of any one of the [structural] members should the building ever become overloaded with large numbers of people ... during a public meeting." The letter included a "Notice of Unsafe Structure," which prevented public meetings but allowed the municipality to conduct normal business activities in the municipal building. As a consequence, Oxford had to locate other space for public meetings and the court.

Melick was diagnosed with grand mal seizures (epilepsy) after she had ten seizures in an hour on September 16, 1992. In February 1993, she took a disability leave of absence. She was taking an experimental anticonvulsant, which dulled her intellect and left her barely able to function.

Schiereck stated that in March 1993 Melick asked Mayor Niece for permission to do some of her work at home, which an Administrative Office of the Courts (AOC) official had told her was acceptable. Schiereck offered to drive Melick between home and the office and to perform for Melick certain tasks that had to be done at the office. Mayor Niece indicated he would see "what they could do."

Melick went back to the building occasionally to attend various meetings and proceedings. After her doctor advised her not to return there, she contacted an AOC official about the possibility of doing her work elsewhere. Melick acknowledged that working at home would have reduced the court's public office hours. Melick did not make a formal proposal to defendants about working at home.

Melick said that after a March or April 1993 meeting that she attended, the Township Committee "agreed that [she] did have medical conditions" and was "going to allow [her] to come back to [her] position."

On May 10, 1993, Mayor Niece forwarded a letter to Melick informing her that the decision whether or not to return to the Oxford Township Municipal Building was hers but that her proposal to do court work at home was unacceptable.

Meanwhile Oxford looked into various options for places to utilize for public meetings and for court. Mayor Niece contacted neighboring municipalities concerning a joint municipal court, but without success. Mayor Niece was able reach an agreement with Mayor Wyhopen of White Township, a contiguous community, regarding leasing space. White Township agreed to lease its court room, but it had no extra office space for Oxford's two court employees. White Township did not want non-Township "employees present in [its] building on a full time basis." Mayor Wyhopen suggested that if Mayor Niece "could come to an arrangement with [their] part-time court clerk, Gail Farrel[,] to hire her for the number of hours Oxford needed that [sic] White Township would have no objection to her using her office to serve Oxford." Subsequently, an agreement was reached on May 12, 1993, enabling Oxford to lease the White Township courtroom and to employ Farrel.

At its May 12, 1993 meeting, the Oxford Committee passed an ordinance, which authorized Oxford to enter into a lease to hold its municipal court in White Township's municipal facilities and to hire White Township's court clerk. On Mayor Niece's motion, the Committee unanimously directed Oxford's attorney "to write letters of dismissal for Mrs. Melick and Mrs. Schiereck for approval and signature of the Mayor." The Committee also viewed an "architectural rendering of the proposed Municipal Building" to replace Oxford's current one.

On May 13, 1993, Mayor Niece sent Melick and Schiereck a termination notice. Mayor Niece attributed the terminations to elimination of the positions due to lack of space in the leased premises in White Township's municipal building. The letter to Melick provided in part:

Unfortunately, White Township does not have excess office space for Oxford's use. In the Committee's judgment, the proper administration of our court and the convenience of the public that it serves requires the courtroom and court administration offices be located together.

We have, therefore, reluctantly determined that it is necessary to employ a person who, by virtue of her present part-time position with White Township already has an office located within the White Township Municipal Building, as Oxford Township's Court Administrator. White Township has agreed to permit her to use this space while employed by Oxford Township.

I am constrained, therefore, to advise you that as a consequence of this unfortunate circumstance, Oxford Township must terminate your employment as Court Administrator. This termination shall be effective as of May 14, 1993.

The notice added that "[t]he same circumstances have also required the Township to eliminate the position of Deputy Court Clerk."

Schiereck's notice of termination, also dated May 13, 1993, was similar, except for the statement that it was "also necessary to abolish the position of Deputy Court Clerk" because they "simply were not able to secure a work station for the Deputy." Schiereck was terminated as of May 14, 1993.

On August 17, 1993, plaintiffs filed their complaint against defendants, and defendants answered. In granting summary judgment against the plaintiffs, the judge reasoned that the evidence clearly demonstrated that defendants did not relocate the court as a pretext for terminating plaintiffs.

We first address Melick's contention that the judge should not have granted summary judgment to defendants because she was wrongfully terminated in violation of the LAD. Melick argues that the evidence of a link between her handicap and her termination was sufficient to shift the burden of proof to defendants. Further, she urges that defendants' failure to explore alternative locations for the court and its administrative functions demonstrated that defendants did not establish a non-discriminatory reason for her termination and did not seek a reasonable accommodation for her handicap.

The LAD makes it unlawful for an employee to be denied...