Matthew Musicant v. Village of Ridgewood

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3164-24 MATTHEW MUSICANT, Plaintiff-Appellant, v. VILLAGE OF RIDGEWOOD, a governmental body organized under the Laws of New Jersey, and employer of plaintiff at all relevant times hereto, and HEATHER MAILANDER, Village Manager for the Village of Ridgewood, Defendants-Respondents. _____________________________ Argued September 17, 2026 – Decided September 30, 2026 Before Judges Mawla and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1707-22. Christine Carey Lilore argued the cause for appellant. Christopher C. Botta argued the cause for respondents (Botta McCaskey, LLC, attorneys; Christopher C. Botta, on the brief). PER CURIAM Plaintiff Matthew Musicant appeals from a summary judgment dismissal of his amended complaint against defendants Village of Ridgewood, and Village Clerk and former Village Manager Heather Mailander (collectively defendants). Plaintiff, a firefighter and EMT with the Village of Ridgewood Fire Department (Ridgewood), alleged he was bypassed for a promotion to lieutenant on account of his age for a younger and less qualified candidate. He further alleged that after filing his complaint, defendants placed documents, without his knowledge, in his personnel file. Plaintiff contends those documents portrayed him in a negative light, and he had no opportunity to refute their contents. He also asserts two complaints were filed against him in retaliation for filing his lawsuit. In the April 30, 2025 order, the motion judge granted summary judgment to defendants, dismissing plaintiff's complaint with prejudice on all counts. Having conducted a de novo review, we affirm substantially for the reasons set forth in the judge's comprehensive written opinion. A-3164-24 2 I. Plaintiff has been a career firefighter/EMT with Ridgewood since 2006. In 2018, he was appointed senior firefighter engineer and periodically served as an acting lieutenant 1 "as staffing require[d]" since 2013. Defendant Heather Mailander is Ridgewood's Village Clerk and also served as Village Manager from March 1, 2017 through July 9, 2023. While serving as Village Manager, she was the appointing authority for promotions within the Village and made a total of approximately sixty-three promotions throughout various departments. She was involved with ten promotions in the fire department, "with the average age of those promoted being over [forty] years [of] age." Ridgewood is a Civil Service jurisdiction and operates under the Civil Service Act, N.J.S.A. 11A:1-1 to :12-6. At various times during plaintiff's employment, eligible promotional opportunities arose for him. In 2019 and again in 2022, plaintiff was passed over for a promotion to lieutenant. In 2019, 1 The acting lieutenant role is a temporary first-line supervisory assignment filled when staffing requires; plaintiff's resume states he was "[a]ssigned as [a]cting [l]ieutenant as staffing requires since 2013." In that role, he described having a "[g]reater role in helping to be part of the leadership of the department," including "watch[ing] out for the people" he worked with and helping to "guide and lead," and he stated that even as acting lieutenant he carried "the same authority and responsibility" as the lieutenant for that day or incident. A-3164-24 3 another eligible candidate, who was 54.2 years old, was chosen for the lieutenant promotion over plaintiff. In 2022, another promotional opportunity arose for the position of lieutenant within the fire department. In terms of the New Jersey Civil Service Commission's (CSC) November 24, 2021 certification list of eligibles for appointment to fire lieutenant, plaintiff ranked first on the list. On the same list, Gregory Corcoran ranked second, and Brian Peacock ranked third. At the time of the 2022 promotional process, plaintiff was forty-six years old, Corcoran was thirty-six years old, and Peacock was thirty-four years old. In preparation for the lieutenant promotion, Chief John Judge, who was the newly appointed chief, submitted a letter to Mailander, recommending Peacock for the promotion while stating plaintiff "is a great firefighter, but I do not feel [he] is the best choice for a leadership/personnel management role at this time." During the 2022 promotional process, Mailander interviewed the three eligible candidates, including plaintiff and Peacock. Peacock was promoted to lieutenant effective January 13, 2022. On March 24, 2022, plaintiff filed a complaint against defendants alleging age discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. He later amended his complaint, adding three additional A-3164-24 4 claims for: retaliation under the LAD; fraudulent concealment or destruction of evidence; and breach and/or violation of the fire department's rules and regulations. After filing his lawsuit, Ridgewood investigated two complaints involving plaintiff. The first complaint involved an incident on July 20, 2023, at the Ridge Crest Apartments. After reviewing body worn camera footage, Chief Judge found the incident had no merit and advised plaintiff he "did nothing wrong." The second complaint involved an incident on December 11, 2023, at the Liberty Street fire between plaintiff and the Glen Rock Fire Department. Chief Judge ultimately determined that the allegations "could not be sustained and no further action [would] be taken." On January 30, 2025, defendants moved for summary judgment. On April 30, 2025, the judge granted summary judgment in defendants' favor, accompanied by a written statement of reasons. He found plaintiff's claims of age discrimination relating to his conduct before March 24, 2020—two years prior to the date plaintiff filed his complaint—were time barred under the two- year statute of limitations for LAD claims. Also, plaintiff's claim of age discrimination based on defendants' failure to promote him in 2019 was time barred. Regarding plaintiff's claims pertaining to the 2022 lack of promotion, A-3164-24 5 the motion judge, "viewing the evidence in a light most favorable to [p]laintiff as the non-moving party," found that while [p]laintiff [] demonstrated a prima facie case of age discrimination based upon [d]efendants['] failure to promote [p]laintiff in 2022, [d]efendants have proffered legitimate, nondiscriminatory reasons for not promoting [p]laintiff to [l]ieutenant, and [p]laintiff has failed to sustain his burden of showing that the reasons set forth by [d]efendants were merely pretextual. As to plaintiff's retaliation claim under the LAD, the judge found plaintiff "failed to raise a genuine issue of material fact regarding whether [he] was subjected to any adverse employment action and whether there was any causal link between [p]laintiff filing the subject complaint and any adverse employment action taken against [p]laintiff." The judge rejected plaintiff's assertion that two complaints were filed against him in retaliation. In neither instance did plaintiff suffer any adverse employment consequence because of these complaints. The motion judge found that because plaintiff sued a "public entity and public employee on a tort claim" for fraudulent concealment, "the [Tort Claims Act (TCA)] and its noticing requirements govern." Plaintiff was required to file a notice of claim within ninety days of accrual of his claim, which he failed to do. The judge also explained plaintiff did not file "a motion [seeking] to file a A-3164-24 6 late notice of claim within one year of the accrual date." Because plaintiff failed to file a timely notice of claim, the "TCA constitutes an absolute bar to recovery on a claim against a public entity and/or public employee," and because there was not "a genuine issue of material fact with regard to whether a notice of claim was timely filed," summary judgment was proper. The judge also rejected plaintiff's breach of contract claim, finding that "any claim for breach of contract must stem from a violation of the Union Contract," and because the contract provides a "mechanism" for plaintiff to pursue an administrative remedy, which he did not do, he "waived his right to bring his breach of contract claim based on violations of the Union Contract." Said differently, plaintiff failed to exhaust his administrative remedies and "file a grievance in accordance with the administrative review process" first. On appeal, plaintiff contends the motion judge erred in granting summary judgment by (1) not following the summary judgment standard, and (2) not considering evidence inferring defendant acted for discriminatory purposes and evidence of spoliation to support his claim for destruction of evidence and breach of contract. Plaintiff asserts there were material disputes of fact making summary judgment inappropriate. A-3164-24 7 II. A. We review a motion judge's grant or denial of a motion for summary judgment de novo, applying the same standard used by the trial court. DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172 , 180 (2024); see also R. 4:46- 2(c). An appellate court considers "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 non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "The court's function is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1 , 13 (2021) (quoting Brill, 142 N.J. at 540 ). Summary judgment is appropriate 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." Brill, 142 N.J. at 528 -29 (quoting R. 4:46-2). "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates that the opposing party do more than 'point[] to A-3164-24 8 any fact in dispute' in order to defeat summary judgment." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (alteration in original) (first quoting R. 4:46- 2(c); and then quoting Brill, 142 N.J. at 529 ). Summary judgment should be granted "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Friedman v. Martinez, 242 N.J. 449 , 472 (2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Applying this legal framework, we are satisfied the motion judge properly applied the summary judgment standard and we reject plaintiff's contrary assertion. In his comprehensive decision, the judge identified the undisputed facts, outlined the governing legal principles, and applied the facts to the law for each of plaintiff's claims, concluding that summary judgment dismissal of all counts of the amended complaint was warranted. B. LAD Age Discrimination Claim "[T]he overarching goal of [the] LAD [is] to eliminate the cancer of discrimination," Viscik v. Fowler Equipment Company, 173 N.J. 1, 13 (2002), and therefore, it "should be construed liberally to achieve its aims." Zive v. A-3164-24 9 Stanley Roberts, Inc., 182 N.J. 436, 446 (2005). The LAD prohibits " unlawful employment practice" or "unlawful discrimination" for an employer, because of the . . . age . . . of any individual . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . . [N.J.S.A. 10:5-12(a).] The LAD prohibits unlawful discrimination "in all aspects of the employment relationship," Schiavo v. Marina District Development Company, LLC, 442 N.J. Super. 346, 367 (App. Div. 2015) (quoting Alexander v. Seton Hall University, 204 N.J. 219, 227-28 (2010)), while acknowledging "the authority of employers to manage their own businesses." Zive, 182 N.J. at 446 (citing Viscik, 173 N.J. at 13 ). In analyzing such claims under the LAD, New Jersey has adopted the "burden-shifting mechanism," Battaglia v. United Parcel Service, Inc., 214 N.J. 518, 546 (2013), set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973). A plaintiff must first establish a prima facie discrimination claim. Viscik, 173 N.J. at 13-14 . To establish a prima facie case, a plaintiff asserting a claim of age discrimination based on a failure to promote must A-3164-24 10 establish they: (1) are a member of a class protected by the LAD; (2) are "qualified for the position . . . sought"; (3) were "denied promotion"; and (4) "others with similar or lesser qualifications" were selected for the position. Chou v. Rutgers, State Univ., 283 N.J. Super. 524, 538 (App. Div. 1995); see also Pepe v. Rival Co., 85 F.Supp. 2d 349, 365 (D.N.J. 1999) (explaining the fourth element includes a requirement that after "the position was awarded to someone with equivalent or lesser qualifications who was sufficiently younger to create an inference of age discrimination"), aff'd sub nom., Pepe v. Rival Corp., 254 F.3d 1078 (3d Cir. 2001). "The evidentiary burden at the prima facie stage is 'rather modest'" and "is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants' efforts to dispute that evidence." Zive, 182 N.J. at 447-48 (italicization omitted) (quoting Marzano v. Computer Science Corp., 91 F.3d 497, 508 (3d Cir. 1996); and then citing Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)). Indeed, "[t]he establishment of a prima facie case gives rise to a presumption of discrimination." Viscik, 173 N.J. at 14 (italicization omitted). If a plaintiff establishes a prima facie claim, the burden of going forward "shifts to the employer to articulate a legitimate, non-discriminatory reason for A-3164-24 11 the adverse employment action." Ibid. If the employer demonstrates a non- discriminatory reason for the employment action, "the burden shifts back to the plaintiff to show that the employer's proffered reason was merely a pretext for discrimination." Ibid. To prove a pretext, a plaintiff must show the proffered reason was false, and "the employer was motivated by discriminatory intent." Ibid. (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561 (1990)). In other words, overcoming the pretext burden requires more of a plaintiff than simple identification of an act or event that the plaintiff believes bespeaks discrimination. As our Supreme Court has held, "[t]o prove pretext, . . . a plaintiff must do more than simply show that the employer's [proffered legitimate, non- discriminatory] reason was false; [they] must also demonstrate that the employer was motivated by discriminatory intent." [El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 173 (App. Div. 2005) (alterations in original) (quoting Viscik, 173 N.J. at 14 ).] "If the employer is unable to proffer a nondiscriminatory reason, plaintiff is entitled to summary judgment . . . ." Marzano, 91 F.3d at 508 . "[I]f the employer proffers a reason and the plaintiff can produce enough evidence to enable a reasonable factfinder to conclude that the proffered reason is false, plaintiff has earned the right to present [their] case to the jury." Ibid. A-3164-24 12 However, the case does not survive summary judgment unless a plaintiff can "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. " Zive, 182 N.J. at 455 -56 (quoting Fuentes v. Perski, 32 F.3d 759, 764 (3d Cir. 1994)). "Thus, under the McDonnell Douglas framework, a plaintiff retains the ultimate burden of persuasion at all times; only the burden of production shifts." Viscik, 173 N.J. at 14 . The motion judge correctly determined plaintiff's claims related to the 2019 promotional opportunity were time barred. The statute of limitations for LAD claims is two years from accrual. N.J.S.A. 2A:14-2(a); Montells v. Haynes, 133 N.J. 282, 286 (1993). Plaintiff's complaint was filed on March 24, 2022, accordingly, as the judge explained, "any claims of discrimination relating to [d]efendants' conduct prior to March 24, 2020 are time barred." Plaintiff's arguments focus on defendants' failure to promote him in 2022. Regarding the 2022 promotional opportunity, plaintiff produced no evidence of discriminatory intent based on age depriving him of a promotion, nor any evidence that age "played a role in the decision[-]making process." A-3164-24 13 Garnes v. Passaic Cnty., 437 N.J. Super. 520, 530 (App. Div. 2014) (internal quotation marks omitted). Plaintiff cannot point to any conduct or comments made by defendants related to age as a factor in the decision-making process. In fact, the evidence demonstrates Mailander promoted a firefighter in 2019 who was older than plaintiff, and in 2022, although promoting a younger firefighter, Mailander skipped over Corcoran who at the time was thirty-six years old. Plaintiff provides no evidence to refute that during Mailander's tenure, the average age of the firefighters she promoted was over forty-years of age. Defendants provided a legitimate, non-discriminatory reason for not promoting plaintiff; namely that, plaintiff, although a skilled firefighter, was not the best candidate for the supervisory role based on his temperament and "ability for one to work well with others in a leadership position." Plaintiff does not offer any evidence to undermine the proffered, non-discriminatory reason for defendants' decision not to promote him. Viewing the facts in the light most favorable to plaintiff, there is no evidence to support an inference defendants did not act consistently with their proffered non-discriminatory reason. In other words, there was no evidence defendants were motivated by a discriminatory intent in making the promotional decision. The record supports the motion judge's conclusion: "Plaintiff has failed to demonstrate that age played any role A-3164-24 14 in the decision-making process or that age had a determinative influence on the decision [] not [to] promote [p]laintiff and there is no genuine issue of material fact which remains unresolved." Plaintiff cites Chipollini v. Spencer Gifts, 814 F.2d 893 (3d Cir. 1987) and Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995), in support of his position that summary judgment was inappropriately granted. Plaintiff contends these Third Circuit cases held that a plaintiff in an age discrimination case need only present sufficient evidence "that could support an inference that the employer did not act for non-discriminatory reasons," and "not whether the evidence necessarily leads to that conclusion that the employer did act for discriminatory reasons." These cases are factually distinguishable. Both Chipollini and Sempier suffered the adverse employment consequence of termination from their employment. Plaintiff, on the other hand, can point to no such consequence. In Chipollini, the court held indirect or circumstantial evidence may suffice to show the employer's "proffered reason [for not promoting an employee] is a pretext for discrimination, i.e., that the proffered reason is merely a fabricated justification for discriminatory conduct." 814 F.2d at 898 . Plaintiff offered no evidence, indirect or otherwise, to show the reasons offered for not promoting him were fabricated. A-3164-24 15 We conclude plaintiff did not establish a prima facie showing of age discrimination based on a failure to promote. Viewing the cumulative conduct and providing all favorable inferences, plaintiff has not shown age played any role in denying him a promotion. Plaintiff also failed to show the proffered legitimate, non-discriminatory reasons for passing him over for the lieutenant promotion was a pretext for age discrimination. Thus, summary judgment on plaintiff's LAD age discrimination claim was properly granted. C. LAD Retaliation Claim In granting summary judgment on plaintiff's retaliation claim under the LAD, the motion judge found "[p]laintiff [] failed to raise any genuine issue of material fact regarding whether [he] was subjected to any adverse employment action and whether there was any causal link between [p]laintiff filing the subject complaint and any adverse employment action taken against [p]laintiff." The two alleged adverse employment consequences cited by the judge were (1) the placement of memos in plaintiff's personnel file and (2) "investigations undertaken into [p]laintiff's conduct that relate to events that occurred prior to [p]laintiff filing the complaint in this matter." Plaintiff contends the trial court "ignored" his transfer to "the hill," which he described as a "small firehouse on 'the hill' with other progressive members, A-3164-24 16 away from the main department, by the supervisors who were members of the 'old regime.'" He asserts this transfer occurred immediately after the litigation began and constitutes an adverse employment consequence, which the judge failed to mention in his decision. Notably, this purported adverse employment action was not set forth in plaintiff's complaint. Plaintiff alleged he was engaged in a protected activity, and had been subjected to adverse employment action by defendants which included: the derogatory documents placed in [p]laintiff's personnel file without his knowledge and investigations conducted in violation of [p]laintiff's rights under his union contract, the rules and regulations of the Village of Ridgewood and the Ridgewood Fire Department and otherwise in violation of [p]laintiff's constitutional rights. All such documentation, if placed in [p]laintiff's personnel file will be utilized by the Village of Ridgewood to portray [p]laintiff in a false and negative light and to deny him future promotion opportunities. To establish retaliation under the LAD, an employee must show: (1) they engaged in protected activity known to the employer; (2) they were subjected to an adverse employment action; and (3) causation. Battaglia, 214 N.J. at 547 (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)). Retaliation requires proof of adverse employment action based on plaintiff's age. A-3164-24 17 "[T]here is no bright-line rule defining an adverse employment action in the context of a LAD claim. New Jersey has been guided by the federal courts' interpretation of Title VII and civil rights legislation to decide what constitutes an adverse employment decision with regards to a LAD retaliation claim." Richter v. Oakland Bd. of Educ., 459 N.J. Super. 400, 417 (App. Div. 2019) (citing Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002)). "The factors to be considered include an 'employee's loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees.'" Ibid. (quoting Mancini, 349 N.J. Super. at 564 ). The motion judge found plaintiff had not shown the two investigations were conducted in retaliation for filing the lawsuit. The documents and the investigations were created or conducted before plaintiff filed his complaint, and he was not disciplined as a result of either the allegations contained in the documents or the investigations. The judge recognized that "certain internal policies" may have been violated; however, no evidence established "serious and tangible" consequences to plaintiff as a result of filing the lawsuit altering the terms and conditions of his employment or "adversely affect[ing] his status as an employee." A-3164-24 18 As for the two complaints filed against plaintiff, the motion judge noted in both instances, plaintiff was "cleared of any wrongdoing and no disciplinary action was taken against him." The complaints were filed by individuals outside of Ridgewood, and the judge found "no basis to conclude that these indivi duals filed complaints against [p]laintiff in retaliation for him initiating a lawsuit []." The judge concluded plaintiff could not "establish a nexus between the filing of the two complaints and [p]laintiff's initiation of this lawsuit." Plaintiff's complaint did not trigger these two investigations, and he suffered no adverse employment consequence, such as disciplinary action or demotion as a result. The motion judge's findings are supported by the record and support the legal conclusion that plaintiff failed to establish a claim of retaliation under the LAD. Cf. Prager v. Joyce Honda, Inc., 447 N.J. Super. 124, 140 (App. Div. 2016) (rejecting plaintiff's retaliation claim where she did not suffer an adverse employment action or any tangible harm). D. Fraudulent Concealment Claim Plaintiff alleges several years of positive performance evaluations and Mailander's notes from the interview process were missing. He acknowledges that as to his claim for fraudulent concealment or spoilation, he did not file a TCA notice nor did he file a motion seeking to file a late TCA notice. A-3164-24 19 The motion judge granted summary judgment on plaintiff's fraudulent concealment claim based on his failure to file a TCA notice as required by N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9. It is undisputed that Ridgewood is a public entity and therefore insulated by the TCA. The judge found plaintiff's cause of action accrued on or about March 16, 2023, and plaintiff did file a notice of claim within ninety days. Plaintiff raises no genuine issue of material fact regarding whether a TCA notice was filed. N.J.S.A. 59:8-8 requires the filing of a TCA notice against a public entity no later than ninety days after the accrual of the cause of action or the claimant is "forever barred from recovering against a public entity or public employee[.]" The judge correctly concluded plaintiff's claim for fraudulent concealment against defendants was "expressly barred by [N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9]." E. Breach of Contract Claim Plaintiff's final claim for breach of contract was not governed by the TCA. See Blazer Corp. v. N.J. Sports & Exposition Auth., 195 N.J. Super. 542, 549 (App. Div. 1984). The judge correctly granted summary judgment on this claim because neither the Ridgewood Fire Department Rules and Regulations, Procedure Manual, nor the Village of Ridgewood Human Resource Manual give A-3164-24 20 rise to a right of contract regarding violations of internal policies. The only enforceable contract between the parties is the Collective Bargaining Agreement (CBA). As the motion judge noted, "any claim for breach of contract must stem from a violation of the [CBA]." The CBA provides for a grievance process to pursue employment issues within a specific time frame and provides that if a grievance is not filed within the time limits, it is deemed waived. Plaintiff did not file a grievance challenging the denial of a promotion, inclusion of documents or information in his personnel file, or any alleged violations of the Rules and Regulations or the CBA. Therefore, it is undisputed he did not exhaust his administrative remedies. We discern no error in the judge's decision to apply the doctrine of exhaustion of administrative remedies. "The exhaustion doctrine is not 'absolute' and a 'trial court's determination whether to invoke those principles is a discretionary one.'" Hawk v. N.J. Inst. of Tech., 428 N.J. Super. 562, 571 (App. Div. 2012) (quoting All. for Disabled in Action, Inc. v. Cont'l Props., 371 N.J. Super. 398, 408 (App. Div. 2004). "The doctrine . . . applies when 'a claim is cognizable in the first instance by an administrative agency alone.'" Id. at 570 (quoting Boss v. Rockland Elec. Co., 95 N.J. 33, 40 (1983)). A-3164-24 21 The CBA provides a mechanism for challenging the very types of violations plaintiff alleges in his complaint stemming from the CBA. Plaintiff contends he relied "in large part" upon the following CBA provisions: 35.03 Whenever a written complaint concerning a Firefighter or [their] actions is to be placed in [their] personnel file, a copy shall be made available to [them] and [they] shall be given the opportunity to rebut it if [they] so desire[] and [they] shall be permitted to place said rebuttal in [their] file. 35.04 All personnel history files will be carefully maintained and safeguarded permanently, and nothing placed in any file shall be removed therefrom. He also relied upon Section 46 "Minor Discipline" which in part states: A) Any Firefighter who is issued a minor discipline shall be provided written notice of such discipline in the form of a notice of minor disciplinary action. Such notice shall contain a reasonable specification of the nature of the charge, a general description of the alleged action or conduct upon which the charge is based and the nature of the discipline being imposed. Plaintiff acknowledges the source of any contract dispute arises from the CBA and that he did not exhaust the contractual grievance remedy prior to filing the lawsuit. The administrative review process exists to resolve such grievances first by the agency with "expertise in th[is] area." Atl. City v. Laezza, 80 N.J. 255 , 265 (1979). Beginning with this process also allows the parties "to create A-3164-24 22 a factual record necessary for meaningful appellate review[] and . . . the agency decision may satisfy the parties and thus obviate resort to the courts." Ibid. As the motion judge concluded, plaintiff's claims fall within the purview of the CBA and the "administrative remedies provided" would not have been "futile" nor would "irreparable harm" have resulted had plaintiff pursued those administrative remedies. The motion judge correctly found plaintiff waived his right to bring his breach of contract claim for violations of the CBA by failing to exhaust the available administrative remedies. In summary, having considered plaintiff's arguments and conducted a de novo review, we conclude summary judgment as to all claims was proper. To the extent that we have not expressly addressed any of plaintiff's other arguments, it is because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3164-24 23