CURT BRICKELL VS. CABLEVISION (L-0971-15, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5232-16T1
CURT BRICKELL,
Plaintiff-Appellant,
v.
CABLEVISION, a/k/a
CSC TKR, LLC, MARK LIME,
and ROBERT KNAPP,
Defendants-Respondents.
____________________________
Argued February 6, 2019 – Decided June 22, 2020
Before Judges Fuentes, Accurso, and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0971-15.
Eric V. Kleiner argued the cause for appellant (Eric V.
Kleiner and Rudie O. Weatherman, on the briefs).
Barbara E. Hoey (Kelley Drye & Warren LLP) of the
New York bar, admitted pro hac vice, argued the cause
for respondents (Kelley Drye & Warren, LLP,
attorneys; Barbara E. Hoey and John P.J. Mattiace, on
the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff Curt Brickell worked at Cablevision a/k/a CSC TKR, LLC
(Cablevision) from December 1996 until he was terminated for cause on
February 26, 2014. On January 23, 2015,1 nearly a year after his termination,
plaintiff filed a six-count civil action against his former employer predicated on
violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
Plaintiff also named as defendants Mark Lime and Robert Knapp, two of his
former supervisors. In Counts I through III of the complaint plaintiff alleged he
was subject to a hostile work environment, discrimination, and retaliation.
According to plaintiff, his supervisors and coworkers incessantly harassed and
taunted him based on his alleged cognitive deficits and/or developmental
disabilities. Count IV alleged violations of his right to due process and equal
protection under our State and federal constitutions; Count V alleged intentional
infliction of emotional distress; and Count VI alleged negligent management or
retention by Cablevision.
Plaintiff appeals from: (1) the court's decision to strike his expert's report
as a sanction for his attorney's failure to adhere to a court-ordered discovery
1
Plaintiff filed an amended complaint on March 10, 2015.
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schedule; and (2) the court's subsequent decision to grant defendants' motion for
summary judgment which resulted in the dismissal of his complaint with
prejudice. After reviewing the record developed before the trial court, we
affirm.
Plaintiff worked for Cablevision as a field service technician. In this role,
he traveled to customers' homes in response to reports of technical problems
with their cable service. Plaintiff's fellow service technicians made numerous
complaints to management about plaintiff's technical proficiency and work
ethic. They alleged that work assigned to plaintiff was not performed correctly
or left incomplete requiring other technicians to return to the worksite to finish
the job. From August 2000 until he was terminated on February 26, 2014,
Cablevision formally disciplined plaintiff sixteen times for dereliction of duty,
failure to complete work assignments, and other employment-related
misconduct. Plaintiff's employment file contained a myriad of poor
performance evaluations, customer complaints, documented oral warnings about
substandard work, and written disciplinary warnings.
For example, a written performance review dated January 19, 2001 shows
a supervisor personally met with plaintiff to discuss numerous complaints made
by his fellow field technicians about his consistent failure to finish work
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assignments. This form of misconduct is known as "kicking back" work and
caused "a lot of dissention in the crew." A "performance improvement" memo
sent to plaintiff by his supervisors dated January 22, 2001 warned plaintiff that
"[n]o work that is kicked back by you should be rescheduled to another
technician."
However, substandard job performance and dereliction of duty were not
the only reasons that caused Cablevision to terminate plaintiff's employment.
Cablevision claims that the complaint made by a customer on February 4, 2014
was the event that tipped the scales in favor of termination. On that date, a
female customer called to complain that plaintiff arrived at her home on a
service call and began to work on her property without identifying himself as a
Cablevision service technician. The customer specifically stated that plaintiff's
surreptitious presence made her uncomfortable.
The record of this incident also shows that plaintiff made a number of
personal phone calls while inside the customer's home. He asked the customer
to use her bathroom and remained inside the bathroom for an unusually long
period of time. The customer claimed she heard plaintiff talking on his
cellphone while inside her bathroom. Finally, plaintiff walked into the
customer's bedroom and closed the door to respond to a personal phone call.
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Plaintiff's theory of liability against Cablevision is based on how he was
treated by his supervisors and coworkers. He alleges he was harassed and
ridiculed by supervisors Lime and Knapp "on a daily basis." He claims these
two men disparaged him "in the presence of his fellow service technicians" and
called him "retarded, stupid, slow, dumb" and other similar insults based on his
alleged intellectual disability and/or cognitive deficits. Other than a former
coworker from 2002, plaintiff did not identify anyone else he told about his
alleged cognitive disabilities. The coworker claimed plaintiff told her he was
dyslexic. However, plaintiff has never been diagnosed with dyslexia. Plaintiff
also acknowledged at his deposition that his alleged learning disability did not
hamper his ability to perform his work-related responsibilities. Moreover,
plaintiff did not produce any medical evidence that he was diagnosed with a
learning disability during the time he was employed by Cablevision.
Discovery began in March 2015. On August 22, 2016, the judge entered
a case management order (CMO): (1) extending discovery until December 21,
2016; (2) requiring plaintiff to complete defendants' depositions by no later than
October 28, 2016; and (3) requiring the parties to complete all fact-witnesses
depositions by no later than December 21, 2016. The CMO also set deadlines
for serving expert reports and the completion of the experts' depositions.
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Plaintiff was required to serve his expert's report by no later than September 30,
2016. The attorneys retained the right to modify any part of the court-imposed
deadlines by consent provided the modification did not change the CMO's
discovery end date
On September 30, 2016, plaintiff's counsel served defendants with a
preliminary psychological report authored by Dr. Myra J. Marshall, plaintiff's
expert. In his transmittal letter, plaintiff's counsel noted that "this report will be
supplemented in the very near future." On October 11, 2016, defendants moved
to strike Dr. Marshall's September 30, 2016 preliminary report and to preclude
plaintiff from submitting any additional expert reports. In an order dated
December 12, 2016, the trial judge granted defendants' motion. The judge found
Dr. Marshall's September 30, 2016 preliminary report was incomplete and did
not justify an extension of the discovery end date. The judge concluded that
acceptance of this incomplete report would violate the CMO's unambiguous
deadlines. The judge also denied plaintiff's motion for reconsideration.
Defendants moved for summary judgment thereafter arguing plaintiff was
unable to prove any of the allegations in his complaint against Cablevision and
the two named supervisors as a matter of law. The motion came for oral
argument before the trial judge on April 21, 2017. Before hearing from counsel,
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the judge noted for the record that the case was scheduled for trial on May 2,
2017 and the parties had waived the ten-day requirement "with respect to the
summary judgment rules."2 After considering the arguments of counsel, the
judge granted defendants' motion and dismissed the complaint with prejudice as
a matter of law.
Plaintiff's argument challenging the trial judge's decision to preclude him
from presenting expert testimony is without merit. Rule 4:17-4(e) authorizes a
trial court to set a date certain for the production of expert reports. The record
shows plaintiff's counsel was well aware of the discovery schedule established
by the trial court in its CMO dated August 22, 2016. The trial judge has the
discretion to sanction a party who violates such an order. Maurio v. Mereck
Constr. Co., 162 N.J. Super. 566, 569 (App. Div. 1978). These sanctions may
include the preclusion of an expert's report or testimony. Ibid. In his decision
to strike Dr. Marshall's incomplete expert report, the judge found plaintiff did
2
Rule 4:46-1 provides, in relevant part, that:
All motions for summary judgment shall be returnable
no later than [thirty] days before the scheduled trial
date, unless the court otherwise orders for good cause
shown, and if the decision is not communicated to the
parties at least [ten] days prior to the scheduled trial
date, an application for adjournment shall be liberally
granted.
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not provide any reasonably justifiable basis to extend the long-established
deadlines in the CMO. To accept an incomplete expert's report in lieu of the
final document required under the CMO would undermine the court's authority
to manage civil disputes and creates an incentive for unscrupulous parties to use
these half-measures as a subterfuge to extend the discovery deadline.
An appellate court will generally defer to a trial court's disposition of
discovery matters, unless the record shows a clear abuse of discretion. Rivers
v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005). An abuse of discretion
"arises when a decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso–
Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir.
1985)). We discern no legal or factual basis to conclude the trial judge abused
his discretion when he enforced the discovery deadlines established in the
August 22, 2016 CMO.
Independent of these discovery violations, the trial judge granted
defendants' motion for summary judgment and dismissed plaintiff's cause of
action as a matter of law. Plaintiff's arguments attacking this decision also lack
merit.
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A trial court must grant a motion for summary judgment when "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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). To determine whether
there is a genuine issue of material fact in dispute, the motion judge 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 no n-
moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
This court applies the same standards and reviews a trial court's order granting
a motion for summary judgment de novo. Globe Motor Co. v. Igdalev, 225 N.J.
469, 479 (2016).
Here, the trial judge concluded that plaintiff did not make out a prima
facie case of a hostile work environment based on his alleged intellectual
disabilities. To survive defendants' summary judgment motion, plaintiff must
show: (1) that he was harassed by his coworkers and supervisors; (2) this
harassment would not have occurred but for his alleged intellectual disability;
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(3) the harassment was so severe and/or pervasive that; (4) a reasonable person
with the same intellectual disability would believe that; (5) the conditions of
employment were altered and the work environment was hostile and/or abusive.
Aguas v. State, 220 N.J. 494, 509 (2015) (alleging hostile work environment
through gender-based harassment).
The Court adopted a similar standard in Taylor v. Metzger, 152 N.J. 490
(1998), a case involving allegations of racial slurs in the workplace. The Court
in Taylor identified the elements a plaintiff must satisfy to establish a prima
facie case of hostile work environment based on racial animus: (1) the
complained of conduct would not have occurred but for plaintiff's status as a
member of a protected class; (2) the conduct was severe and/or pervasive; (3) to
make a reasonable individual who is a member of the protected class conclude
that; (4) the conditions of employment have been altered and the work
environment is hostile or abusive. Id. at 498.
Here, the judge found plaintiff did not make out a prima facie case of a
hostile work environment based on plaintiff's actual intellectual disabilities.
Stated differently, plaintiff did not produce sufficient evidence to meet the
standard established by the Court in Aguas and Taylor as a matter of law. The
judge found plaintiff did not prove he is a member of a protected class and did
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not produce evidence that being called "brick-head" by his coworkers and his
two supervisors as a nickname is sufficient to establish a reasonable individual
would conclude the conduct was severe and pervasive, as opposed to
sophomoric behavior and/or benign horseplay in the workplace.
Finally, the trial judge concluded plaintiff is barred from bringing this
cause of action by the two-year statute of limitations applicable to LAD claims.
N.J.S.A. 2A:14-2. All of the evidence plaintiff produced to support his claims
of bullying and other hostile acts in the workplace based on his alleged
intellectual disabilities and/or cognitive limitations occurred in 2000 and 2001.
Plaintiff filed this LAD complaint against Cablevision and his two supervisors
on January 23, 2015.
It is also undisputed that plaintiff did not base his LAD cause of action on
being "perceived" as an intellectually disabled or cognitively impaired
individual. The following exchange between plaintiff's counsel and the trial
judge in the course of oral argument addressing defendants' summary judgment
motion dispels any lingering doubts about this issue:
THE COURT: Is this a perceived disability case?
PLAINTIFF'S COUNSEL: And the answer to your
question, Judge, is it is not a perceived disability case.
In the arguments made by plaintiff at the summary
judgment stage what we're saying to the [c]ourt is
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there's ample evidence in this particular case to indicate
at the summary judgment stage, similar to where we are
with many of these cases that go to trial and then we
have these issues that come up on appeal, that there is
ample evidence that the disability is readily apparent.
The judge ruled that plaintiff cannot assert a cause of action based on
being intellectually disabled without expert medical or psychological evidence
to support it. We agree. Plaintiff's contrary position in this appeal is unavailing.
A party cannot raise a new cause of action in opposition to summary judgment
on appeal. Carlini v. Curtiss-Wright Corp., 71 N.J. Super. 101, 109 (App. Div.
1961). We thus end our analysis by incorporating by reference the trial judge's
statement of reasons attached to his June 29, 2017 order granting defendants'
motion for summary judgment. Plaintiff's remaining arguments lack sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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