Opinion
DOCKET NO. A-1043-14T3
06-28-2016
ROBERT FRETT and HARRY LEON, Plaintiffs-Appellants, v. CITY OF CAMDEN, CITY OF CAMDEN POLICE DEPARTMENT, CHIEF JOHN SCOTT THOMSON, ACTING DEPUTY CHIEF MICHAEL LYNCH, and ACTING INSPECTOR ORLANDO CUEVAS, individually and in their official capacities, Defendants-Respondents.
Mark W. Catanzaro, attorney for appellants. Archer & Greiner P.C., attorneys for respondents (John C. Connell and Laura Link, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4127-11. Mark W. Catanzaro, attorney for appellants. Archer & Greiner P.C., attorneys for respondents (John C. Connell and Laura Link, on the briefs). PER CURIAM
Plaintiffs Robert Frett and Harry Leon, police officers formerly employed by defendant City of Camden, appeal the trial court's September 16, 2014 order granting summary judgment to the City and the other defendants in this case, dismissing plaintiffs' claims of retaliation under the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. We affirm.
I.
Leon was a captain in the City police force (the "Department"). At the times relevant to this case, he was a supervisor in the Investigation Bureau. Frett was an acting captain in the same unit. Both Leon and Frett served under Inspector Orlando Cuevas, who in turn was under the Department's Acting Deputy Chief, Michael Lynch.
Plaintiffs contend they were whistleblowers who cooperated in an investigation by the Camden County Prosecutor's Office of alleged improper conduct by Cuevas. The investigation focused on claims that Cuevas was inflating his reported hours on duty at the Susquehanna Bank Center. The assignment to the Center was part of the Department's "secondary employment" program, in which City police officers performed extra duties as security detail for events at the Center's entertainment facility. The Department would bill the Center for the cost of the police officers' hours in providing these services. According to plaintiffs and others who had been at the Center on such assignments, Cuevas was not observed to be consistently present on site. Cuevas also did not have his assignment listed on the daily log sheet, and instead, would report his hours by sending text messages to the officer administering the program. He sometimes was seen by plaintiffs only at the start of the arena show and not again until the end of the show.
The County Prosecutor's Office interviewed both Leon and Frett and many other individuals. It ultimately concluded that there was not a sufficient basis for criminally charging Cuevas, given competing evidence that he was working offsite in a supervisory role during those events.
The Prosecutor referred the allegations back to the City for potential discipline of Cuevas. The City hired a private company to evaluate the circumstances. The company ultimately concluded that Cuevas needed to reimburse the City for certain hours for which he had been overpaid, but that no disciplinary sanctions were warranted.
Plaintiffs claim that after their whistleblowing activity occurred, they were each treated less favorably by the Police Department. Leon was transferred to a series of different assignments, including the Records Unit, where he was temporarily assigned for eighteen months. Leon also complains that he was required to turn in his police cruiser and was provided a damaged car in its place that had no seats in the back and was dented. Leon was eventually restored to patrol command assignment within the police force. He sustained no loss in pay, rank, benefits or seniority. Leon voluntarily declined an offer to join the Camden County Police when the County took over the City's police force.
Frett, meanwhile, was terminated by the Department after he lied to his superiors about the whereabouts of his brother. The brother, a fellow City police officer, shot himself in the leg in order to obtain disability benefits. Frett initially pursued an administrative civil service action against the City for terminating him. However, Frett withdrew his administrative case after the Supreme Court decided Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67 (2012) (holding there can be collateral estoppel or res judicata consequences in the Superior Court of a finding of lack of retaliation in an administrative proceeding).
In granting summary judgment to the City defendants, Judge Robert G. Millenky agreed with plaintiffs that they had established a prima facie basis under CEPA of engaging in protected conduct by reporting perceived illegal activity. However, he found that plaintiffs had not presented viable and factually supported claims on the remainder of the necessary elements under CEPA.
In particular, Judge Millenky determined that Leon had not suffered a sufficient diminution of his employment benefits and status to support a cause of action under CEPA. The judge accordingly did not need to reach whether there was causation established as to Leon. Separately, the judge found that the defendants had justifiably terminated co-plaintiff Frett because of his admitted conduct in being untruthful and insubordinate about his brother.
Represented by the same counsel, plaintiffs contend on appeal that they each marshalled enough proof to support a prima facie case of illegal retaliation by defendants, and that the trial court improperly dismissed their CEPA claims on summary judgment. After considering those arguments in light of the record and the governing law, we affirm the entry of summary judgment, substantially for the cogent reasons expressed in Judge Millenky's September 14, 2014 oral opinion.
II.
Our review of this case is guided by familiar principles. The trial court must determine on summary judgment whether there is a genuine issue of material fact, which exists if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, 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, 523 (1995); R. 4:46-2(c). On appeal, we apply the same standard. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). If there is no genuine issue of material fact, then the appellate court must determine whether the trial court's application of the applicable substantive law was correct. Id. at 237-38.
An employee claiming to have been unlawfully retaliated against by his employer in violation of CEPA must prove the following four elements to establish a prima facie claim under the statute:
(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3[]; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
The trial court found that plaintiffs established the first two of these elements. Despite defendants' arguments on appeal contesting the court's finding of a "reasonable belief" under prong one, we concur with Judge Millenky that the record, when viewed in a light most favorable to plaintiffs, sufficiently supports his determination adverse to defendants on both prong one and on prong two. The analysis then focuses on prongs three (adverse employment action) and four (causation). We consider that analysis as to each plaintiff individually.
A.
Although he presented sufficient evidence that he engaged in protected whistleblowing activity, Frett failed to show under prong four that his initial transfer leading to his ultimate discharge by the City was a retaliatory and unjustified response caused by that whistleblowing. As Judge Millenky reasonably found, defendants' removal of Frett from the police force was manifestly justified by his untruthful and insubordinate conduct in attempting to hinder the Department's investigation of his brother. Frett admitted during his deposition to committing those improper actions that led to his termination. He admitted to lying to the Acting Deputy Chief and failing to return his brother to the Department for questioning. Frett also admitted to perpetuating that lie under oath when he was interviewed about his brother during the investigation into the shooting. He conceded that such impropriety can rightly lead to an officer's termination.
All of these conceded wrongs amply support the trial court's dismissal of Frett's CEPA claims. "Where the affected party does not deny committing an infraction that resulted in discipline, the discipline cannot be considered 'proscribed reprisal'" under CEPA. Beasley v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div. 2005). The trial court reasonably rejected Frett's contention that his misdeeds were vitiated by defendants' alleged failures to discharge other officers, whom he claimed had engaged in similar or more serious misconduct. Frett's inappropriate conduct attempting to protect his sibling — in derogation of his own duties to the public — sufficiently warranted his removal from office, regardless of how the Department may or may not have treated other officers claimed to have behaved improperly.
B.
The CEPA claims brought by Leon were properly dismissed for a different legal reason: his failure to show that the Department had engaged in "an adverse employment action" against him in response to his whistleblowing activity. Dzwonar, supra, 177 N.J. at 462; N.J.S.A. 34:19-3. This shortcoming raises a question of law, requiring the trial court and now this court on appeal to assess whether the Department's temporary reassignment of Leon to other duties and the provision of an older, dented police vehicle rises to the level of actionable retaliation relating to the terms and conditions of his employment.
Judge Millenky concluded that the matters complained of by Leon concerning such things as his temporary reassignment and being assigned a different squad vehicle did not amount to what the law considers to be "adverse employment action." In essence, the judge found that defendants' actions concerning Leon — taken while his compensation, rank, benefits and seniority were all left intact — were too minor or inconsequential to surmount the statutory bar in this factual setting. We concur with the judge's assessment.
CEPA prohibits employers from taking "any retaliatory action" against employees who disclose or threaten to disclose violations of law, fraud or crime to a "supervisor or . . . a public body[.]" N.J.S.A. 34:19-3; Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011) (similarly noting that CEPA prohibits "any retaliatory action against an employee"). "Retaliatory action" is defined by the Act as "discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e).
The phrase "terms and conditions of employment" within CEPA has been construed to encompass "those matters which are the essence of the employment relationship," and includes such issues as "length of the workday; increase or decrease of salaries, hours, and fringe benefits; physical arrangements and facilities; and promotional procedures." Beasley, supra, 377 N.J. Super. at 608 (internal citations omitted). The Supreme Court has also identified employer conduct such as "making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations" as falling within the definition of "retaliatory actions." Donelson, supra, 206 N.J. at 258.
At times, employer actions that fall short of discharge, suspension or demotion, "may nonetheless be the equivalent of an adverse action." Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005) (alteration in original). Although "not every employment action that makes an employee unhappy constitutes 'an actionable adverse action[,]'" id. at 434, "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct" may be actionable under CEPA, id. at 435; see also Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003) (stating the same in dicta).
The trial court properly applied these principles here as to Leon. In doing so, the court reasonably distinguished Leon's circumstances from those involved in Nardello, supra, the key case cited on this issue in Leon's appellate brief. In Nardello, we found that a plaintiff police officer's transfer from a position of significant authority commanding a SWAT team to overseeing contractors in a building renovation project, being assigned demeaning tasks such as installing alarms and maintaining toilets, and being denied the ability to work on various assignments customary to his rank was sufficient for a jury to conclude that retaliatory actions occurred. Nardello, supra, 377 N.J. Super. at 432, 435-36 (reversing the trial court's grant of summary judgment).
Judge Millenky observed that the Department's actions concerning Leon analytically differed from those in Nardello in several critical respects. The judge noted that Leon's transfer to the Records Bureau was a "high profile" assignment, involving "substantial responsibility," requiring an officer with "some fundamental standing within the department and credibility." The evidence reflects that the Department was seeking a form of national accreditation for its record-keeping functions that would help reduce its insurance costs. While in that position, Leon was allowed to choose his physical office and was provided with the resources he requested. The judge also noted that Leon was not given "demeaning jobs," and was "able to still supervise individuals under his command in connection with the Records Department[.]"
To be sure, we recognize that an experienced police officer such as Leon might often prefer a more visible or traditional assignment than the management of records, and would like to continue to use a newer and better maintained squad car than the vehicle provided to him while he was engaged in this eighteen-month temporary reassignment. But an employee's preferences alone do not dictate what comprises an adverse change in the terms and conditions of employment under the law.
Defendants presented unrefuted evidence that Leon's temporary reassignment addressed a significant need to improve that unit's operations in anticipation of an adverse audit. Leon continued to oversee several other officers, and his rank and compensation were not diminished. While he was in that post, Leon identified no retaliatory actions against him by Cuevas, despite Leon being one of the officers who had vouched for the allegations of impropriety against Cuevas. Once his temporary reassignment ended, Leon was transferred back to "patrol," where he acted as "the watch commander for the entire city." When the Department was taken over by the County government, Leon was offered a position on the new police force, which he declined.
Given these circumstances, the trial court fairly concluded that Leon's proofs were insufficient to vault the threshold for getting to a jury. Although we are mindful of stereotypes from popular culture that may portray a "records room" position within a police department as an undesirable assignment, the particular context here shows that Leon was placed there for legitimate, short-term business reasons, in part due to his own skill and experience. The assignment, which coincided with the Department's efforts to obtain national accreditation, was not routine. Leon did not present evidence to the contrary, other than pointing out that the records room had not been previously supervised by an officer with the rank of captain. Although we do not endorse petty managerial tactics, we decline to adopt a categorical or automatic approach that declares such a lateral reassignment as inherently retaliatory. In addition, the Department had a legitimate business reason to deploy Leon's better-equipped squad car for use in the field during the period of time while he was not assigned to a field post.
It is by no means clear that a different outcome would be reached under the retaliation standard adopted by the United States Supreme Court in Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 61, 68, 126 S. Ct. 2405, 2411, 2415, 165 L. Ed. 2d 345, 355, 359 (2006), even if our Supreme Court decided to adopt that Federal Title VII standard for CEPA cases in our State. See Roa v. Roa, 200 N.J. 555, 575 (2011) (adopting the Burlington Northern standard under the New Jersey Law Against Discrimination). We have substantial doubt that the minor inconveniences experienced by Leon, while he was still earning his full pay, retaining his rank, seniority and supervising status, would objectively dissuade a reasonable worker from bringing perceived illegal activity to light. In any event, we need not pass on that issue. Unlike CEPA, which defines the term "retaliatory action," N.J.S.A. 34:12-2, the LAD differs in that it does not expressly define the term "adverse employment action." Although the language of the LAD's proscription against various acts of discrimination shares certain similarities with CEPA's definition of "retaliatory action," see N.J.S.A. 10:5-12(a), and this court has observed that the meaning of the term "adverse employment action" between the two acts is not "significantly different," Victor v. State, 401 N.J. Super. 596, 615 (App. Div. 2008), aff'd in part and modified in part, 203 N.J. 383 (2010), the Court has yet to import the Burlington Northern standard into CEPA jurisprudence, despite having the opportunity to do so in other CEPA cases post-dating Burlington Northern or Roa. That said, we appreciate counsel's supplemental letter-briefs on this issue that they submitted at our request. --------
In sum, the trial court reasonably granted summary judgment to defendants dismissing the CEPA claims of both Frett and Leon, even viewing the factual evidence in the record in a light most favorable to plaintiffs.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION