                                NOT FOR PUBLICATION WITHOUT THE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-2245-17T2

MARCUS TAYLOR,

          Plaintiff-Appellant,

v.

THE RICHARD STOCKTON
COLLEGE OF NEW JERSEY,

     Defendant-Respondent.
______________________________

                    Argued February 25, 2019 – Decided March 11, 2019

                    Before Judges Sabatino, Haas and Sumners.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-0341-14.

                    Justin T. Loughry argued the cause for appellant
                    (Loughry and Lindsay, LLC, attorneys; Justin T.
                    Loughry, on the briefs).

                    James M. Duttera, Deputy Attorney General, argued the
                    cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
                    Attorney General, of counsel; Christie Pazdzierski,
                    Deputy Attorney General, on the brief).
PER CURIAM

      Plaintiff Marcus Taylor appeals from the Law Division's December 8,

2017 order denying his motion to vacate the court's October 19, 2016 order

granting summary judgment in favor of defendant The Richard Stockton College

of New Jersey (Stockton), and dismissing his complaint alleging a failure to

accommodate his alleged disability, and improper retaliation in violation of the

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.

      Plaintiff began working at Stockton as a police officer in August 2005.

On October 4, 2011, he responded to a fatal motor vehicle accident. Plaintiff

alleged that the victim died, "as far as [he] could detect, while [he] []held him[]

while [he] was in physical contact with him[.]" As a result of this incident,

plaintiff asserted he developed Post-Traumatic Stress Disorder (PTSD).

      In January 2012, plaintiff told his supervisor, Lieutenant Britton, that he

was having difficulty as a result of witnessing the aftermath of the accident.

Plaintiff admitted that the lieutenant "quickly referred" him to the Cop2Cop peer

counseling program so he could speak to other law enforcement officers who

had experienced similar situations. Lieutenant Britton also told plaintiff he

could see a counselor and that these services would be covered by his health

insurance.


                                                                           A-2245-17T2
                                        2
      Plaintiff testified in a related proceeding that he had a "good" experience

in the Cop2Cop program and, when he later asked to see a counselor, Lieutenant

Britton immediately contacted the Stockton Human Resources Department to

make the arrangements. However, plaintiff did not keep the appointment with

the counselor. At first, plaintiff claimed he was unable to do so because he was

working the midnight shift and needed to sleep during the day. However, he

ultimately admitted that he was not even at work on the day of the scheduled

appointment.

      Plaintiff later alleged that over the course of the next year, he saw a

therapist whose name he could not remember, as well as a licensed clinical social

worker (LCSW). However, the LCSW told Stockton that plaintiff only kept one

scheduled appointment during that entire period.

      On January 24, 2012, plaintiff submitted a letter to Stockton from a doctor.

The letter stated:

             Due to his diagnosis of [PTSD,] I am recommending
             that [plaintiff] be put on day shift for the next 30 days.
             At that time he will be re-evautated [sic], and I will
             have further recommendations.

In response, Stockton moved plaintiff from his regular midnight shi ft to the day

shift. Plaintiff remained on the day shift from January 25 to February 24, 2012,

the full thirty-day period recommended by his doctor.

                                                                          A-2245-17T2
                                         3
      At that end of the thirty days, plaintiff did not submit another doctor's

note, and there is no evidence in the record that the doctor ever re-evaluated him

as he stated he would in the January 24 letter. Nevertheless, Lieutenant Britton

asked plaintiff if he would like to continue on the day shift for another thirty

days and, when he replied that he would, Stockton allowed him to remain on the

day shift through April 1, 2012. Thereafter, plaintiff did not ask to continue on

the day shift and, as stated above, his doctor made no further recommendations.

Therefore, plaintiff returned to his former assignment on the midnight shift. 1




1
  In his responses to interrogatories, plaintiff admitted that the only request he
ever made for an accommodation was to be placed on the day shift for thirty
days. He also acknowledged that Stockton permitted him to remain in this
assignment twice as long as his doctor had recommended.

       Nevertheless, in a certification he submitted in support of his motion to
vacate the October 19, 2016 judgment, plaintiff claimed for the first time that
he also asked to be placed on desk duty. However, plaintiff's doctor had only
recommended a brief transfer to the day shift, and plaintiff presented no
additional medical documentation in connection with this new allegation. He
also failed to explain why he did not raise this contention in his complaint or his
answers to interrogatories. Under these circumstances, we treat plaintiff's
subsequent certification for what it was, a "sham affidavit" that contradicted his
earlier certified statements. See Shelcusky v. Garjulio, 172 N.J. 185, 193-94
(2002) (noting that the sham affidavit "doctrine calls for rejection of the affidavit
where[, as here,] the contradiction is unexplained and unqualified by the affiant.
In such circumstances, the alleged factual issue in dispute can be perceived as a
sham, and as such it is not an impediment to a grant of summary judgment."
                                                                             A-2245-17T2
                                         4
      Plaintiff presented no further information to Stockton concerning his

alleged medical condition, and the record does not reflect that plaintiff had any

further difficulty in performing his assignments.

      On March 13, 2013, the federal Drug Enforcement Administration (DEA)

arrested defendant on drug trafficking charges following an undercover

investigation it conducted between November 2012 and January 2013. The

investigation revealed that on five occasions during this period, plaintiff sold

oxycodone to a DEA agent and a cooperating witness working with the DEA.

Following his arrest, Stockton suspended plaintiff without pay pending the

outcome of the criminal charges. Stockton also sought to remove plaintiff from

employment for conduct unbecoming a public employee, and other related

charges. Thirteen months later, on April 14, 2014, plaintiff submitted a letter of

resignation to Stockton.

      On July 3, 2014, plaintiff pled guilty to distribution and possession with

intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C). At his sentencing hearing, plaintiff claimed that Stockton failed to

accommodate his disability and that was the reason he began using and selling

Oxycodone. The federal district court judge soundly rejected this contention,

and stated that plaintiff's testimony was not credible and, indeed, "was an affront


                                                                           A-2245-17T2
                                        5
to the judicial system." The judge also remarked that "[a] police officer who

swears to tell the truth, to uphold the law, who gets on this stand and flat -out

lies is an affront to the [c]ourt's integrity." The judge sentenced plaintiff to

thirty-one months in prison.

      On January 28, 2014, plaintiff filed a pro se complaint against Stockton,

and alleged that his employer violated the LAD by failing to accommodate his

disability. In February 2015, plaintiff amended his complaint to include a claim

that Stockton retaliated against him because he sought an accommodation.

      After taking some discovery, Stockton filed a motion for summary

judgment on September 15, 2016. Stockton asserted that it granted plaintiff the

exact accommodation he sought by placing him on the day shift for thirty days

as his doctor requested, and it extended that assignment for an additional thirty

days even though plaintiff did not request the extension or submit any follow-

up evaluations or recommendations from his doctor.

      In addition, Stockton pointed out that plaintiff suffered no adverse

employment consequences since he simply continued in his normal assignment

without any change in his pay or other employment condition. As an alternative

basis for the relief it sought, Stockton also posited that plaintiff should be

collaterally estopped from presenting his claim that it failed to accommodate his


                                                                         A-2245-17T2
                                       6
disability based on the federal judge's conclusion that plaintiff's assertion was

in no way credible.

        The motion, which Stockton properly served upon plaintiff, was

returnable on October 14, 2016. Plaintiff failed to respond to the motion. As a

result, the trial court granted Stockton's motion for summary judgment and

dismissed plaintiff's complaint with prejudice in an order filed on October 19,

2016.

        Almost a full year later, on October 6, 2017, plaintiff filed a motion to

vacate the October 19, 2016 judgment. He was now represented by an attorney.

In a supporting certification, plaintiff admitted that he received an envelope

from Stockton containing the motion for summary judgment, but he never

opened it.

        Plaintiff claimed that "[i]n or about the later summer and early fall of

2016," he "was consulting with an attorney . . . to ask that he consider taking

over [his] case." He put all of his papers concerning the case, including the

envelope he received from Stockton, in a box and took it to this attorney.

Plaintiff, who did not submit a certification from this attorney in support of the

motion, claimed the attorney told him "that he was very busy and it would take

him a little bit of time to get to the review." Again unable to specify the date on


                                                                           A-2245-17T2
                                        7
which anything happened, plaintiff asserted that "around mid to late October,"

the attorney returned the material to him and stated he would not be a ble to

represent plaintiff.

      Plaintiff claimed that "[i]n or about late October or early November,

2016," he called Stockton's attorney to ask to adjourn an upcoming deposition.

The attorney told plaintiff that the matter had been dismissed.

      Plaintiff alleged that he then took his file to a different attorney, who

"opened all the packages and found the summary judg[]ment papers[.]" He did

not explain why, if these assertions were true, the attorney did not simply file a

notice of appeal from the October 19, 2016 judgment or an immediate motion to

vacate it under Rule 4:50-1. Plaintiff did not even divulge the date on which he

formally retained this attorney.

      Plaintiff also submitted a certification from his new attorney, but it is also

vague. In the certification, the attorney stated that plaintiff "came to [him] in or

about November 2016 to report . . . that his case appeared to have been

dismissed." The attorney never states that plaintiff retained him at that time.

Instead, the attorney asserted that he "undertook to review the extensive motion

to attempt to determine whether [plaintiff] might meet the standards for relief

for vacation of judgment." This review, the attorney stated, took eleven months


                                                                            A-2245-17T2
                                         8
to complete "[i]n light of [his] other case commitments including trials and

pretrial hearings, appellate briefs and arguments, discovery depositions and de

bene esse depositions, and the like."

      On December 8, 2017, Judge Daniel Bernardin denied plaintiff's motion

to vacate the judgment dismissing his complaint with prejudice. In an oral

decision, the judge noted that plaintiff sought to vacate the judgment under Rule

4:50-1(a), which permits a court to grant relief from a judgment if the moving

party demonstrates "excusable neglect."

      Based upon the facts set forth above, the judge concluded that plaintiff's

abject neglect in failing to: (1) open the mail containing Stockton's summary

judgment motion; (2) respond to it in a timely fashion; or (3) take any steps to

address the situation in the eleven months that followed, was clearly not

"excusable." The judge explained:

            Plaintiff's neglect is not excusable, and plaintiff is not
            blameless. His failure to open or review paper[s] sent to
            him in this litigation is not excusable neglect. It's just
            neglect. In order to prevail on the motion plaintiff must
            show that [his] neglect in failing to oppose the motion was
            excusable. Here, plaintiff acknowledges in his moving
            papers that he received [Stockton's] motion, but never
            opened the papers or reviewed them. . . . In this case,
            plaintiff should have opened the envelope that he
            acknowledges having received, which contained
            [Stockton's] summary judgment motion. Plaintiff should
            have read the motion. His failure to do so was careless. It

                                                                          A-2245-17T2
                                        9
            demonstrates a lack of proper diligence, a disengagement
            from the litigation, rather than neglect, which is [not in]
            any way excusable.

      The judge further stated that even though plaintiff was representing

himself in the litigation, he had the duty to respond to a motion he admittedly

received. The judge also noted that plaintiff did not retain the first attorney he

allegedly spoke to, and did not even submit a certification from this individual.

Thus, plaintiff could not transfer blame to that attorney, or to the second one he

went to, who did not certify as to the date plaintiff retained him, or adequately

explain why it took eleven months to file the Rule 4:50-1(a) motion.

      The judge also found that, in any event, plaintiff did not have a meritorious

claim against Stockton under the LAD. While the judge agreed with plaintiff

that he was not collaterally estopped from pursuing his complaint by the federal

judge's comments about his utter lack of credibility, "the record [nevertheless]

reflect[ed] that Stockton gave plaintiff the help and put him on the right path."

Therefore, there was simply no basis for plaintiff's contention that Stockton did

not accommodate his disability and, instead, retaliated against him for advising

his employer that he would like to be moved to the day shift for thirty days. This

appeal followed.




                                                                           A-2245-17T2
                                       10
      On appeal, plaintiff argues that the judge erred by denying his motion to

vacate the judgment dismissing his complaint. We disagree.

      Rule 4:50-1 is "designed to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case." US Bank Nat'l Ass'n

v. Guillaume, 209 N.J. 449, 467 (2012) (internal quotation marks omitted)

(quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)). However, relief from

judgment under Rule 4:50-1 "is not to be granted lightly." Cho Hung Bank v.

Kim, 361 N.J. Super. 331, 336 (App. Div. 2003). Rather, Rule 4:50-1 "provides

for extraordinary relief and may be invoked only upon a showing of exceptional

circumstances." Ross v. Rupert, 384 N.J. Super. 1, 8 (App. Div. 2006) (internal

quotation marks omitted) (quoting Baumann v. Marinaro, 95 N.J. 380, 393

(1984)).

      Accordingly, a "trial court's determination under [Rule 4:50-1] warrants

substantial deference, and should not be reversed unless it results in a clear abuse

of discretion." Guillaume, 209 N.J. at 467. A trial court abuses its discretion

"when a decision is 'made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" Id. at 467-68

(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).


                                                                            A-2245-17T2
                                        11
      Plaintiff did not meet that demanding standard here. He brought his

motion to vacate the order dismissing his complaint under Rule 4:50-1(a), which

permits a court to grant relief from a final judgment if the moving party can

demonstrate that the entry of the judgment was attributable to "excusable

neglect," which has been long-defined as "'an honest mistake that is compatible

with due diligence or reasonable prudence.'" Id. at 468 (quoting Mancini, 132

N.J. at 335).    Here, plaintiff did not come close to making this required

demonstration. Plaintiff admitted that he received the envelope containing

Stockton's motion for summary judgment, and decided not to open it. Instead,

he put it in a box and ignored it. Simply stated, there is nothing "excusable"

about plaintiff's gross neglect in this case.

      In so ruling, we are mindful that plaintiff initially was representing

himself in this action. However, "pro se litigants are not entitled to greater rights

than litigants who are represented by counsel." Ridge at Back Brook, LLC v.

Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014). Plaintiff is also unable to shift

the blame for his neglect to the two attorneys who he states reviewed his file.

Plaintiff never retained the first attorney, and it is not clear when he retained t he

second, who was not even able to specifically document when plaintiff first

contacted him.


                                                                              A-2245-17T2
                                        12
      While plaintiff brought the Rule 4:50-1(a) motion just before the one-year

time limit for such motions expired under Rule 4:50-2, it still took him eleven

months to address his failure to respond to Stockton's motion for summary

judgment. As already noted, there was no persuasive explanation proffered for

this long delay and, as the judge found, Stockton was clearly prejudiced in view

of the fact that over five years had already passed between the time plaintiff first

sought an accommodation for his alleged disability and his motion for relief

from the judgment of dismissal. Under these circumstances, we discern no abuse

of discretion by the judge in determining that plaintiff's Rule 4:50-1(a) lacked

merit. See Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195 (App.

Div. 1985) (stating that in considering a motion brought under this Rule, the

trial court should weigh "(1) the extent of the delay, (2) the underlying reason

or cause, (3) the fault . . . of the litigant, and (4) the prejudice that would accrue

to the other party").

      Our determination on this point is further bolstered by our conclusion that

the judge correctly found that plaintiff's complaint did not set forth a meritorious

claim against Stockton under the LAD for either a failure to accommodate his

disability or for retaliating against him for request an accommodation. Marder

v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff’d, 43 N.J. 508


                                                                              A-2245-17T2
                                        13
(1964); see also Guillaume, 209 N.J. at 469 (noting that court's should examine

the movant's chance of success on the merits to ensure that "[t]he time of the

courts, counsel and litigants [will not] not be taken up by . . . a futile

proceeding") (quoting Schulwitz v. Shuster, 27 N.J. Super. 554, 561 (App. Div.

1953)).

      To establish a prima facie case of failure to accommodate, a plaintiff must

demonstrate:

            1) the employer knew about the employee's disability;
            2) the employee requested accommodations or
            assistance for his or her disability; 3) the employer did
            not make a good faith effort to assist the employee in
            seeking accommodations; and 4) the employee could
            have been reasonably accommodated but for the
            employer's lack of good faith.

            [Victor v. State, 203 N.J. 383, 415 (2010) (internal
            quotation marks omitted) (quoting Taylor v.
            Phoenixville Sch. Dist., 184 F.3d 296, 317-18 (3d Cir.
            1999)).]

      An employee need not place a request for a reasonable accommodation in

writing, or even use the phrase "reasonable accommodation." Tynan v. Vicinage

13 of the Superior Court of N.J., 351 N.J. Super. 385, 400 (App. Div. 2002).

However, the employee must make clear that assistance is desired. Ibid. Once

such a request is made, "the employer must initiate an informal interactive

process with the employee," to identify possible reasonable accommodations

                                                                         A-2245-17T2
                                      14
that could be implemented "to overcome the employee's precise limitations

resulting from the disability." Ibid. The employer must make a "reasonable

effort to determine the appropriate accommodations." Ibid.

      Stockton clearly met these requirements, and it followed through with

every accommodation request plaintiff made. As soon as plaintiff notified his

supervisor that he allegedly suffered from PTSD, she arranged for him to

participate in the Cop2Cop peer counseling program and, by contacting the

Human Resources Department, also put plaintiff in contact with a counselor.

Plaintiff did not take advantage of the individual counseling that Stockton

offered, and lied about the reason why he missed the scheduled session. After

seeing a LCSW once after that, he never returned for any of the follow-up

sessions.

      Stockton also moved plaintiff to the day shift as soon as his doctor

requested the thirty-day transfer, and allowed plaintiff to remain on that shift

twice as long as the doctor recommended. Plaintiff never sought an extension

of this sixty-day period, never presented a new doctor's note and, as evidenced

by his      answers    to   interrogatories, never asked   for   any additional

accommodation.        Thus, plaintiff's failure to accommodate argument clearly

lacked merit.


                                                                        A-2245-17T2
                                       15
      We reach a similar conclusion as to plaintiff's claim that Stockton

retaliated against him for seeking an accommodation. The LAD bans "reprisals

against any person because that person has opposed any practices or acts

forbidden under this act or because that person has filed a complaint" to enforce

"any right granted or protected by this act." N.J.S.A. 10:5-12(d). To claim

retaliation in violation of the LAD, employees must show that "(1) they engaged

in a protected activity known by the employer; (2) thereafter their employer

unlawfully retaliated against them; and (3) their participation in the protected

activity caused the retaliation." Craig v. Suburban Cablevision, Inc., 140 N.J.

623, 629-30 (1995). Upon the assertion of a legitimate non-retaliatory reason

for the adverse action by the employer, a plaintiff must show, by a

preponderance of the evidence, that the employer's conduct was nonetheless

motivated by discriminatory reasons. Romano v. Brown & Williamson Tobacco

Corp., 284 N.J. Super. 543, 549 (App. Div. 1995).

      Applying these principles, we detect no basis in this record to support

plaintiff's reprisal claim. Plaintiff argues that Stockton returned him to his

former midnight shift to punish him for asking for an accommodation. However,

Stockton moved plaintiff to the day shift immediately after his doctor requested

this action, and allowed him to remain in this assignment for sixty days. It only


                                                                         A-2245-17T2
                                      16
returned plaintiff to his former assignment on the midnight shift after plaintiff

failed to submit any further recommendations from his doctor that he should

continue on the day shift.

      As already noted, plaintiff's new claim that he really wanted to be put on

desk duty, rather than on the day shift, lacks merit. Plaintiff's doctor never made

that request, and plaintiff admitted in his answers to Stockton's interrogatories

that the only accommodation he ever sought was a thirty-day assignment to the

day shift. Stockton fully complied with that request and, therefore, plaintiff

clearly failed to demonstrate that he had a meritorious claim on this point. 2

      Affirmed.




2
  In light of our analysis, we need not address the College's alternative argument
that plaintiff was collaterally estopped by the federal sentencing judge's findings
from arguing a failure of reasonable accommodation in the State court civil LAD
case.
                                                                           A-2245-17T2
                                       17
