SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Argued April 26, 2004 -- Decided June 14, 2004

PER CURIAM

    In 1982, the Township of Irvington (Township) and its Police Department hired John Bunalski as a police officer. In January 1996, Bunalski underwent hip replacement surgery and was cleared to return to work six months later. Although no restrictions were indicated, Bunalski alleged that he told Police Chief Palamara that he was physically restricted from working patrol due to his surgery. Bunalski claims that Palamara assured him that he would get an “inside” assignment but conceded that Palamara never indicated that the assignment would be permanent.

    Bunalski was assigned to the Communications Center. He also worked the Jobs in Blue program, which allowed off-duty police officers to earn extra money working in security at malls, banks, etc. In June 1998, Bunalski was promoted to sergeant. Two months later, Chief Palamara learned that Bunalski could not go on patrol. Subsequently, Bunalski was required to provide a restricted duty notice every thirty days through an attending physician letter.

    On December 2, 1998, Bunalski submitted to his employer a letter signed by his physician, Dr. Rosa, indicating that Bunalski should not lift, run, have contact with prisoners, or participate in any impact activities. The letter further suggested limiting bending and no road duty. Dr. Rosa opined that these restrictions were permanent. Thereafter, Bunalski submitted a second thirty-day letter with the same prognosis. In response, he was assigned to the Communications Center but told he could no longer work in the Jobs in Blue program. In March 1999, Deputy Chief Galfy notified Bunalski that there were no sedentary positions within the Police Department and he could not be accommodated on a permanent basis. The Police Department leadership concluded that Bunalski could no longer perform the essential requirements of a police sergeant. Bunalski was instructed to file an application for ordinary disability within thirty days or have the Police Department file an involuntary disability application.

Bunalski did not file an application for ordinary disability. Instead, the Township applied before the Board of Trustees of the Police and Firemen’s Retirement System (Board) for approval of an involuntary ordinary disability retirement for Bunalski.

    Bunalski filed a complaint in the Law Division against the Township and the Police Department, following his involuntary retirement as a police officer, alleging that he was wrongfully terminated and discriminated against as a result of the Township’s refusal to “accommodate” his handicap, in violation of the New Jersey Law Against Discrimination (LAD). On a motion for summary judgment, the trial court concluded that Bunalski had not established a case of discrimination because he failed to prove that he was able to perform the job functions of a police officer.

    The Appellate Division reversed on appeal. The panel concluded that, in order to involuntarily retire Bunalski, the Township must demonstrate that: it cannot reasonably accommodate him without sustaining an “undue hardship;” it considered the potential reasonable accommodations, and Bunalski could not perform the “essential functions” of a police officer.

    After Bunalski filed his Law Division action, the Board “approved” the Township’s request to grant Bunalski an involuntary application for ordinary disability retirement. The Board determined that Bunalski was totally and permanently disabled from the performance of his duties as police sergeant. The determination of the Board also indicated that, if Bunalski disagreed with its determination, he could request a formal hearing before an Administrative Law Judge and noted his ability to challenge, before the Board, the initial decision of the ALJ if the request for a hearing is approved and to appeal the final administrative determination of the Board to the Appellate Division. Bunalski did not seek a hearing before and ALJ nor did he appeal from the Board’s determination. Accordingly, the final administrative determination of the Board remains in full force and effect.

    The Township never pursued its defenses to Bunalski’s Law Division claims on the basis of the preclusive effect of the final administrative determination. Nor was a procedural challenge raised in the Appellate Division.

    The Supreme Court granted the Township’s petition for certification. In that petition, the Township noted for the first time that the Appellate Division failed to give the Board’s finding preclusive effect and thus the Supreme Court must resolve the conflict between the Board and the Appellate Division.

HELD: Certification in this matter was improvidently granted; therefore, the appeal is dismissed.

1. This case involves significant procedural questions that were not raised in, nor considered by, the trial court or Appellate Division. In that context, it is inappropriate to consider the substantive issues that were decided by the Appellate Division and raised before the Court in respect of Bunalski’s rights under the LAD. Therefore, certification was improvidently granted. (Pp. 3-4)

2. On remand ordered by the Appellate Division, the parties may raise the procedural issues identified herein as well as any defenses in respect of their belated consideration. The Court expresses no opinion as to the issues or their resolution. (P. 4)

    Certification having been improvidently granted, the appeal is DISMISSED.

    CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and JUDGE STERN, temporarily assigned, join in this PER CURIAM opinion. JUSTICE LONG did not participate.

    
SUPREME COURT OF NEW JERSEY
A- 36 September Term 2003


JOHN BUNALSKI,

    Plaintiff-Respondent,

        v.

TOWNSHIP OF IRVINGTON and TOWNSHIP OF IRVINGTON POLICE DEPARTMENT,

    Defendants-Appellants.

        Argued April 26, 2004 – Decided June 14, 2004

On certification to the Superior Court, Appellate Division.

Jacqueline A. DeGregorio argued the cause for appellants (Weiner Lesniak, attorneys; Ms. DeGregorio and Howard E. Brechner, of counsel; Ms. DeGregorio, Mr. Brechner and Margaret A. Miller on the briefs).

        John A. Craner argued the cause for                         respondent (Craner, Satkin & Scheer,
        attorneys; Mr. Craner and Jonathan P. Arnold,
        on the brief).

PER CURIAM

    We granted certification, 178 N.J. 35 (2003), to review the judgment of the Appellate Division, which, in an unpublished opinion, reversed the Law Division's grant of summary judgment to defendant Township of Irvington.
    Plaintiff filed the action, following his involuntary retirement by defendant as a police officer, alleging that he was wrongfully terminated and discriminated against as a result of the Township's refusal to "accommodate" his handicap, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. The trial court concluded that plaintiff had not established a case of discrimination because he failed to prove that he was "able to perform the job functions of being a police officer." In reversing the summary judgment, the Appellate Division determined that "[i]n order to involuntarily retire [plaintiff], the Township must show that it cannot reasonably accommodate him without sustaining an 'undue hardship,'" and that the Township had to "demonstrate that it considered the potential reasonable accommodations" and that plaintiff could not perform the "essential functions" of a police officer.
    After plaintiff filed the Law Division action, the Board of Trustees of the Police and Firemen's Retirement System (Board) "approved" the Township's application to grant plaintiff an "involuntary application for ordinary disability retirement." The Board determined that plaintiff was "totally and permanently disabled from the performance of his duties as police sergeant." The determination of the Board further indicated that, if plaintiff disagreed with its determination, he could "request a formal hearing before an Administrative Law Judge within the Office of Administrative Law" (OAL), and noted the ability to challenge before the Board the initial decision of the Administrative Law Judge if the request for a hearing "is approved," and to appeal the final administrative determination of the Board to the Appellate Division. Plaintiff neither sought a hearing before the OAL nor endeavored to appeal from the Board's determination. Accordingly, the final administrative determination of the Board remains in full force and effect.
    However, defendant never pursued its defense to plaintiff's action in the Law Division on the basis of the preclusive effect of the final administrative determination. See footnote 1 Nor was a procedural challenge raised in the Appellate Division. In its petition for certification, the Township noted, for the first time, as one of the "questions involved," that the Appellate Division failed "to give [the Board's] finding preclusive effect and[,] thus, the Supreme Court must resolve the conflict between [the Board] and the Appellate Division."     
    This case involves significant procedural questions which were not raised in, nor considered by, the trial court or Appellate Division. In that context we find it inappropriate to consider the substantive issues that were decided by the Appellate Division and raised before us with respect to plaintiff's rights under LAD. We therefore conclude that certification was improvidently granted in this case.
    On the remand ordered by the Appellate Division, the parties may raise the procedural issues identified herein as well as any defenses in respect of their belated consideration. We express no opinion as to the issues or their resolution.
    Certification having been improvidently granted, the appeal is dismissed.
    CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE and JUDGE STERN, temporarily assigned, join in this opinion. JUSTICE LONG did not participate.     SUPREME COURT OF NEW JERSEY

NO.     A-36    SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court    

JOHN BUNALSKI,

    Plaintiff-Respondent,

        v.

TOWNSHIP OF IRVINGTON and
TOWNSHIP OF IRVINGTON POLICE
DEPARTMENT,

    Defendants-Appellants.

DECIDED June 14, 2004
    Chief Justice Poritz    PRESIDING
OPINION BY Per Curiam    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY    

CHECKLIST  

Footnote: 1 Among the thirty-nine separate defenses in its answer, defendant asserted lack of subject matter jurisdiction, failure to exhaust administrative remedies, and "collateral estoppel and/or res judicata." By virtue of the successful summary judgment motion, these defenses were not pursued in the Law Division.