                          NOT FOR PUBLICATION WITHOUT THE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-0802-16T3

BRYAN BRANCACCIO,

                Plaintiff-Appellant,

v.

CITY OF HACKENSACK,

          Defendant-Respondent.
__________________________________

                Submitted November 16, 2017 – Decided December 5, 2017

                Before Judges Simonelli and Haas.

                On appeal from Superior Court of New Jersey,
                Law Division, Bergen County, Docket No. L-
                8335-14.

                Costello & Mains, LLC, attorneys for appellant
                (Deborah L. Mains, on the brief).

                Pfund McDonnell, PC, attorneys for respondent
                (David T. Pfund and Mary C. McDonnell, of
                counsel and on the brief).

PER CURIAM

        Plaintiff Bryan Brancaccio appeals from the Law Division's

September 26, 2016 order granting summary judgment and dismissing

his     claim    that    his   employer,    defendant    City    of   Hackensack,
discriminated against him based upon its perception that he was

disabled and unable to work as an "on the line" firefighter in

violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-

1 to -49.   We affirm.

      We draw the facts from the summary judgment record and view

them in a light most favorable to plaintiff, the non-moving party.

Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).           The

Hackensack Fire Department (Department) consists of approximately

114   firefighters   spread   between   four   platoons   and   one   fire

prevention bureau.       Firefighters assigned to the platoons work

twenty-four-hour shifts, working one day and then having the next

three days off.      This is commonly referred to as "on the line"

work and firefighters assigned to a platoon respond to the scene

of a fire wearing appropriate equipment and perform the tasks

necessary to extinguish a blaze.

      Firefighters in the fire prevention bureau inspect buildings

for fire code violations.       These firefighters work eight-hour

shifts for four days each week.    All firefighters receive the same

salary regardless of their assignment.           However, firefighters

assigned to the fire prevention bureau receive an additional $1500

annual stipend.



                                   2                              A-0802-16T3
      Plaintiff began working for the Department in January 1986.

During his career, he primarily worked on the line in a platoon.

Plaintiff's duties typically included driving the fire engine and

operating the water pump at the scene to suppress the fire.

      On May 15, 2012, plaintiff followed Department protocol and

submitted a written request to the Fire Chief (the Chief) asking

to be transferred from his platoon to the fire prevention bureau.

Plaintiff told the Chief he was suffering from double pneumonia

and supplied a supporting doctor's note.          The Chief approved the

transfer and plaintiff joined the bureau.

      A few months later, plaintiff submitted a written request

asking to be transferred back to a platoon.              The Chief granted

this request and plaintiff resumed working on the line.

      In May 2013, a deputy fire chief encountered plaintiff at a

firehouse during his shift.        The deputy stated that plaintiff was

sitting on the front bumper of an engine, and looked "gray and

appeared to have discomfort in breathing."               The deputy urged

plaintiff to go to a hospital for treatment.          Plaintiff refused.

Later, a lieutenant checked plaintiff's condition and found that

he   needed   "100%   oxygen[.]"      Plaintiff   then    acceded   to   the

lieutenant's request that he go to the hospital for evaluation.

      Because plaintiff was the assigned engine driver, and was

clearly incapacitated that day, the deputy advised the Chief that

                                      3                             A-0802-16T3
plaintiff endangered his crew and asked that plaintiff be "sent

for a fitness for duty test."    Following this incident, the Chief

met with plaintiff and they agreed that if plaintiff became "ill

while on duty in the future, [he would] notify [his] immediate

supervisor and take the appropriate measures so as to relieve

[himself] from duty by either requesting an ambulance or placing

[himself] on sick leave."

     In September 2013, plaintiff submitted a written request for

a transfer from one platoon to another.     The Chief granted this

request five days later.

     In October 2013, the Department directed plaintiff and other

firefighters to take a pulmonary function test required by the

Public Employee Occupational Health and Safety Association to

determine if they were fit to wear a respirator, which is a self-

contained breathing apparatus.    The test was administered at the

hospital by a doctor.

     On October 1, 2013, the doctor found that plaintiff was "not

medically fit" to wear a respirator and gave the Department a

written certification to this effect.     On October 9, 2013, the

doctor issued a second statement clarifying that plaintiff was

"medically fit" but could "not wear or use a respirator."       That

same day, the Chief reassigned plaintiff to the fire prevention

bureau.   This assignment was effective on October 14, 2013.

                                  4                         A-0802-16T3
      Plaintiff scheduled an appointment with a private physician.

On November 12, 2013, this physician rendered a written report

after examining plaintiff.        The physician concluded that despite

having    some   underlying   medical      conditions,     "[t]here    [was]   no

pulmonary contraindication to [plaintiff] using a respirator."

One day after receiving this report, the first doctor issued a

third statement finding that plaintiff was medically fit to wear

a respirator.

      Thereafter,     plaintiff      continued    working      in     the   fire

prevention bureau until he retired on January 1, 2016, and he

never submitted a written request to return to a platoon.               Because

he was in the bureau, plaintiff received the extra $1500 stipend

each year.

      The Chief testified at his deposition that plaintiff "was

doing an extraordinarily good job for us" in the fire prevention

bureau.    The Chief also stated that the bureau was "in dire need

of   inspectors"    and,   because   the    bureau   was    "several    hundred

inspections behind[,] . . . we needed the manpower in there."                  At

his deposition, plaintiff agreed the Department was not "up to

date in its fire inspections" and that "there was a shortage of

inspectors[.]"

      On September 2, 2014, plaintiff filed his complaint under the

LAD and alleged that defendant discriminated against him by not

                                       5                                A-0802-16T3
placing him "back on the line" in a platoon after he was cleared

to wear a respirator in November 2013.                Plaintiff alleged that

defendant took this discriminatory action based on its perception

that he had a disability.

    Although plaintiff received the same salary as he would have

had he been assigned to a platoon, plus an extra $1500 annual

stipend,1 plaintiff alleged that he missed out on the "massive

line firefighter overtime" that was available to firefighters

assigned to a platoon.       In addition, plaintiff argued that when

he was assigned to a platoon, he could perform per diem fire

inspection work for the Department on his days off.                 This work

paid $25 per hour and plaintiff estimated that before he was

assigned to the fire prevention bureau, he was able to work fifty

to one hundred hours a month as a per diem fire inspector.

Plaintiff did not provide any documentation or expert testimony

to support these claims.

    Defendant subsequently filed a motion for summary judgment.

Following   oral    argument,   Judge      John   Langan,   Jr.    rendered    a

comprehensive      written   opinion       granting    summary    judgment    to

defendant and dismissing the complaint.




1
    Plaintiff's annual salary was $134,000 at the time of his
retirement.

                                       6                               A-0802-16T3
     The LAD "prohibits employers from discriminating against

employees based upon disability or perceived disability."              Myers

v. AT&T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied,

186 N.J. 244 (2006).         Proof that discrimination based on that

perception led to an adverse employment action is required.            Ibid.

     In reviewing plaintiff's claim under the LAD, Judge Langan

applied   the   familiar   burden-shifting       analysis   established     in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct.

1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973).          Under this test,

           a plaintiff must first present the prima facie
           elements required in any LAD disability
           discrimination claim, that is:      (1) [the]
           plaintiff was disabled within the meaning of
           the statute; (2) [the] plaintiff was qualified
           to perform the essential functions of the
           position   of   employment;  and   (3)   [the]
           plaintiff suffered an adverse employment
           action because of the disability.      Each of
           these elements must be shown, including proof
           of some material adverse change in the terms
           and conditions of employment.

           [Victor v. State, 401 N.J. Super. 596, 614
           (App. Div. 2008), (citation omitted), aff'd
           in part, modified in part, 203 N.J. 282
           (2010).]

     If   the    plaintiff    establishes    a    prima     facie   case    of

discrimination, the burden shifts to the employer to produce

evidence that there was "a legitimate, non-discriminatory reason

for the adverse employment action[.]"             Myers, supra, 380 N.J.

Super. at 452.    If the employer satisfies this burden, plaintiff

                                    7                                A-0802-16T3
must then demonstrate "that the reason so articulated [was] not

the true reason for the adverse employment action, but [was]

instead a pretext for discrimination."   Ibid.

     With regard to the first prong of the test, Judge Langan

found that defendant did not dispute that it perceived plaintiff

to be disabled at the time the Chief transferred him to the fire

prevention bureau because plaintiff failed the pulmonary test and

was unable to wear a respirator.     However, the judge held that

plaintiff did not suffer any adverse employment action as a result

of this reassignment.   Plaintiff continued to earn the same salary

as firefighters assigned to platoons, and he also received an

additional $1500 stipend as a member of the bureau. Citing Victor,

supra, 401 N.J. Super. at 615, the judge noted that "a job

reassignment, with no corresponding reduction in wages or status

is insufficient to qualify as an adverse employment action."

     Judge Langan next rejected plaintiff's claim that his alleged

loss of overtime and the opportunity to perform per diem work on

his days off constituted an adverse employment action.   The judge

found that plaintiff

          has not presented any evidence in opposition
          to . . . [d]efendant's motion for summary
          judgment to support his claim of lost
          overtime. Plaintiff has no expert report on
          his lost overtime wages.        Accordingly,
          [plaintiff's] lost wages in the form of his


                                 8                          A-0802-16T3
            overtime potential are mere speculation on his
            part.

The judge also concluded that plaintiff's assertion that he would

have worked additional hours as a per diem fire inspector if he

had been assigned to a platoon was likewise "too speculative[,]"

especially because he presented no concrete proof that "this work

[was] still available" at the Department.

     Based upon his finding that plaintiff could not demonstrate

that defendant took any adverse employment action against him,

Judge Langan granted defendant's motion for summary judgment.

However, the judge also observed that even if there had been an

adverse employment action, plaintiff still failed to demonstrate

that defendant's reason for continuing to use him as a fire

inspector    was   a   pretext   for   discrimination.   As   the     judge

explained,

            [d]efendant . . . was experiencing a shortage
            of fire inspectors and as a result did not,
            of its own volition, transfer [p]laintiff out
            of the understaffed fire prevention bureau
            back to the firefighter line because of [its]
            critical   need   to  have   qualified   fire
            inspectors to avoid falling behind in [its]
            inspections to keep the [c]ity safe [and this
            was] more than a legitimate reason to keep
            . . . [p]laintiff in the [f]ire [p]revention
            [b]ureau.

This appeal followed.




                                       9                            A-0802-16T3
    On appeal, plaintiff argues that the judge erred in granting

summary judgment to defendant and dismissing his LAD claim.      We

disagree.

    Our standard of review on appeal is well established.        We

review a trial court's order granting summary judgment de novo,

applying the same standard the trial court applies, namely, the

standard set forth in Rule 4:46-2(c).     Conley v. Guerrero, 228

N.J. 339, 346 (2017).

    We have considered plaintiff's contentions in light of the

record and applicable legal principles.    We are satisfied that

Judge Langan properly granted summary judgment to defendant, and

affirm substantially for the reasons expressed in his cogent and

thoughtful written opinion.

    Affirmed.




                              10                          A-0802-16T3
