KEVIN M. WRIGHT VS. TOWNSHIP OF CHERRY HILL (L-4769-12, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2770-14T1

KEVIN M. WRIGHT,

Plaintiff-Appellant,

v.

TOWNSHIP OF CHERRY HILL,

Defendant-Respondent.

_______________________________

Argued October 13, 2016 – Remanded November 28, 2016
Resubmitted February 2, 2017 – Remanded March 6, 2017
Resubmitted April 19, 2017 – Decided June 13, 2017

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
4769-12.

Matthew S. Wolf, attorney for appellant.

Brown & Connery, L.L.P., attorneys for
respondent (Christine P. O'Hearn, of counsel;
Ms. O'Hearn and Michael J. Miles, on the
brief).

PER CURIAM
 Plaintiff appeals from a January 23, 2015 order denying his

motion for reconsideration of a November 21, 2014 order, granting

defendant's motion for summary judgment. We twice remanded this

case for findings of fact or conclusions of law as required by

Rule 1:7-4. Having reviewed submissions of the parties and the

judge's findings on the record March 9, 2017, we affirm.

The underlying facts are outlined in our previous opinion of

November 28, 2016. In that opinion, we affirmed the motion judge's

denial of a plaintiff's adjournment request but reversed and

remanded the entry of an order granting summary judgment for

defendants because the judge had not provided a statement of

reasons supporting the entry of judgment on an unopposed motion.

Wright v. Twp of Cherry Hill, No. A-2770-14 (App. Div. Nov. 28,

2016). We summarize the facts relevant to the summary judgment

motion.

Plaintiff was a Cherry Hill police officer for nineteen years.

After an automobile accident while on duty in 1995, plaintiff

suffered a brain injury and later suffered from major depression,

headaches, and numerous personal and psychological problems.

Notwithstanding his injury, plaintiff returned to work without

restriction and was deemed fit for duty after several psychological

examinations. In June 2010, plaintiff was suspended for ten days

after an internal affairs investigation resulted in a finding of

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improper conduct because he did not appear in court when required.

On August 30, 2010, Cherry Hill Police Department suspended

plaintiff after an internal affairs investigation uncovered

plaintiff had abandoned hundreds of law enforcement items and

documents. These items were found after Cherry Hill Police

searched plaintiff's home without a warrant or consent.

Plaintiff was advised he was subject to termination. In

September 2010, while on paid leave, plaintiff submitted to a

fitness for duty examination and was found to be suffering from

severe depression. Counseling was recommended, but plaintiff did

not fully comply. Notwithstanding his non-compliance, defendant

did not terminate plaintiff but continued to pay him for seven

months.

On August 30, 2011, a disciplinary hearing was scheduled

before an independent arbitrator. Plaintiff did not appear. On

September 1, 2011, the arbitrator issued a decision concluding

plaintiff had "ceased to conduct his affairs in a manner required

by a police officer," and plaintiff was unresponsive to defendant's

efforts to assist him. The arbitrator agreed termination from the

police force was the only option because plaintiff could not

function as a police officer.

Plaintiff filed suit on November 7, 2012, under the New Jersey

Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, and

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the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2. The

first count of the complaint alleged plaintiff suffered a

disability under the NJLAD and had suffered adverse employment

consequences as a result thereof. The second count asserted

plaintiff's constitutional rights had been violated as a result

of the illegal search of his home and the use of the illegally

seized items.1

On appeal, plaintiff argues the judge erred because he did

not construe all facts and inferences in favor of the non-moving

party as required by Rule 4:46(2)(c), and the judge failed to

correlate factual findings with legal conclusions. We disagree.

In Allstate Insurance Co. v. Fisher, we said, "[s]ummary

judgment is appropriate where the evidence fails to show a genuine

issue as to any material fact challenged and the moving party is

entitled to judgment as a matter of law." 408 N.J. Super. 289,

299 (App. Div. 2009) (citing R. 4:46-2(c)). In support of an

1
On October 4, 2013, prior to the completion of discovery,
defendant moved for partial summary judgment dismissing the claim
under the NJCRA because the claims alleged were barred by the two-
year statute of limitations. Through counsel, plaintiff submitted
a certification stating he had been unaware Cherry Hill police
searched his home without a warrant until September 17, 2012,
because the police had previously lied to him, telling him they
had been responding to a burglary report. The court rejected
plaintiff's assertion and granted defendant's motion on November
22, 2013. That order was not appealed.

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order granting summary judgment, a judge is required to detail the

findings of fact and conclusions of law in a written or oral

opinion. R. 1:7-4(a); R. 4:46-2(c). A trial judge is obligated

"to set forth factual findings and correlate them to legal

conclusions. Those findings and conclusions must then be measured

against the standards set forth in Brill v. Guardian Life Insurance

Co. of America, 142 N.J. 520, 540 (1995)." Great Atl. & Pac. Tea

Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000).

Neither the parties nor the appellate court is "well-served by an

opinion devoid of analysis or citation to even a single case."

Ibid.

Rule 4:46-2(b) provides that all sufficiently supported

material facts will be deemed admitted for purposes of the motion

unless "specifically disputed" by the party opposing the motion.

Pursuant to Rule 1:7-4(a), however, the judge must still correlate

those facts to legal conclusions.

Here, the judge explicitly adopted defendant's reasoning and

arguments and read into the record facts he deemed material and

admitted. The judge determined plaintiff had not set forth a

prima facie case of disability discrimination under the NJLAD

because he had not produced evidence defendant was aware of his

disability, and defendant was justified in terminating plaintiff's

employment because he did not perform the essential functions of

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his job. Based on the undisputed record, the court determined

even if plaintiff had pled a prima facie claim, defendant had

established a non-pretextual, non-discriminatory basis for

removing plaintiff from his job. Plaintiff's failure to

accommodate claim was rejected by the court because plaintiff

could no longer perform the essential functions of the job. The

record supports the judge's findings.

Affirmed.

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