Opinion
DOCKET NO. A-2571-12T3
07-15-2014
CHRISTOPHER MARUCCI, Plaintiff-Appellant, v. TOWNSHIP OF WEST ORANGE, WEST ORANGE POLICE DEPARTMENT, JAMES P. ABBOTT, JOHN BUOYE, MICHAEL C. CORCORAN and THOMAS MONTESION, Defendants-Respondents.
Christopher Marucci, appellant, argued the cause pro se. Mark Y. Moon argued the cause for respondents (Trenk, DiPasquale, Della Fera & Sodono, P.C., attorneys; Richard D. Trenk, of counsel and on the brief; Mr. Moon, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10482-10.
Christopher Marucci, appellant, argued the cause pro se.
Mark Y. Moon argued the cause for respondents (Trenk, DiPasquale, Della Fera & Sodono, P.C., attorneys; Richard D. Trenk, of counsel and on the brief; Mr. Moon, on the brief). PER CURIAM
Plaintiff Christopher Marucci was employed by the Township of West Orange (the Township) as a police officer from 2001 until 2009, when his employment was terminated pursuant to a final notice of disciplinary action, a decision which was upheld by the Civil Service Commission (the Commission) and affirmed on appeal. After his removal was upheld by the Commission, plaintiff filed a complaint alleging claims of harassment and retaliation under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and violation of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. He appeals from an order that granted summary judgment to defendants and dismissed his complaint with prejudice. We affirm.
We summarized the facts underlying the disciplinary action in our decision affirming the final agency decision:
Appellant's removal was based upon his actions after he was dispatched to the scene of an arrest of two suspects by other police officers. One of the suspects had allegedly discarded apparent drugs down a storm drain. Although a public works department employee who was also dispatched to the scene removed the cover to the storm drain, appellant failed to remove the discarded objects lying in the drain. Instead, he took photographs of what he allegedly believed looked like crack cocaine or uncut regular cocaine. Appellant claimed in a report submitted to his superiors that he had been unable to remove the objects in the storm drain because it was five feet deep. However, a subsequent investigation revealed that the storm drain was only twenty-two to twenty-three inches deep and that the objects discarded into the drain were easily retrievable. Moreover, when the objects were retrieved, they turned out not to be
drugs but rather little white Styrofoam balls used by a nearby flower store. As a result of appellant's failure to retrieve those objects and his report that they appeared to be drugs, one of the suspects spent three days in jail.
[In re Marucci, No. A-3607-09 (App. Div. June 3, 2012) (slip op. at 102).]
The Township issued a preliminary notice of disciplinary action charging plaintiff with neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); insubordination, N.J.A.C. 4A:2-2.3(a)(2); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). After plaintiff waived his right to a departmental hearing, the Township issued a final notice of disciplinary action, sustaining all charges and removing him from employment. Plaintiff appealed to the Commission, which referred the matter to the Office of Administrative Law (OAL).
The provision for other sufficient cause is now codified at N.J.A.C. 4A:2-2.3(a)(12).
Before the administrative law judge (ALJ), plaintiff argued that the charges against him should be dismissed for "three different reasons"; that the evidence failed to show intentional conduct on his part; that the Township failed to serve him with the preliminary notice of disciplinary action within forty-five days as required by N.J.S.A. 40A:14-147; and that the Township failed to serve him with the final notice of disciplinary action. In his exceptions to the ALJ's decision, he also contended that the six-month suspension she recommended was inconsistent with the concept of progressive discipline because he had no prior disciplinary record. He did not raise the issue of retaliation before the ALJ or the Commission.
The ALJ found sufficient evidence to support the charges but recommended that the penalty be modified to a six-month suspension. The Commission agreed with the ALJ's determination of the charges but, based upon its de novo review, upheld the penalty of removal.
Two days after the Commission's decision, plaintiff filed the complaint in this case, asserting claims of retaliation and harassment under CEPA, and violation of the CRA. Plaintiff alleged that he suffered adverse employment actions in retaliation for an unfair labor practice grievance filed against the Township on his behalf by P.B.A. Local #25. The grievance was based upon the denial of his request for overtime for February 3 and 5, 2008, when he was off duty but the "on call" detective assigned to the Criminal Investigations Division (CID). On each occasion, plaintiff responded to queries by telephone but did not physically respond to the crime scene or to police headquarters. The Chief of Police denied the grievance on February 28, 2008.
The complaint alleged that the denial of overtime violated the parties' collective bargaining agreement (CBA) and unspecified state and federal labor laws. In August 2008, the grievance was forwarded to the New Jersey State Board of Mediation by the Public Employee Relations Commission (PERC) for arbitration. The arbitrator's Opinion and Award identified the issues in the arbitration as:
1. Whether the Township violated Article VII, Section 4 of the PBA contract when it denied Detective Marucci overtime compensation on February 3, 2008 and February 5, 2008?The arbitrator sustained the grievance and directed that plaintiff be paid overtime for the dates of February 3 and 5, 2008.
2. If so, what shall be the remedy?
The complaint alleges that, after the Chief denied Plaintiff's request for overtime, his relationship with the CID captain and the Chief "turned sour," and various retaliatory actions were taken against him, including his removal from CID in December 2008, petty acts of harassment, and the removal of his name from two training lists. According to the complaint, the alleged retaliatory conduct culminated in the disciplinary charges and plaintiff's removal.
In this appeal, plaintiff argues that the trial court erred in dismissing his termination-based claims on collateral estoppel grounds because the issue of retaliation was not presented to the OAL or the Commission; that the motion for summary judgment should have been denied because genuine issues of material fact existed; that CEPA's one-year statute of limitations does not bar his claims because they are based on a continuing violation; and that summary judgment was improperly granted because discovery was ongoing.
In Point I of his appellate brief, plaintiff argues that both his CEPA and CRA claims should not be dismissed on collateral estoppel grounds because the alleged retaliatory acts were never presented to the Commission. He does not contend that his CRA claim is based upon facts independent of those underlying his CEPA claim and has presented no argument as to why the CRA claim is not precluded by the CEPA waiver provision, N.J.S.A. 34:19-8. See Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 556 n.9 (2013); Young v. Schering, 141 N.J. 16, 24 (1995).
He has, however, not identified what genuine issues of material fact exist in his appellate brief.
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In reviewing a summary judgment decision, we apply the same standard of review as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Viewing the evidence in the light most favorable to the non-moving party, R. 4:46-2(c), we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). Therefore, "[r]eview of an order granting summary judgment is de novo; an appellate court need not accept the trial court's findings of law." Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
We note further that we review judgments, not opinions. Therefore, we may affirm a result we deem correct although we reach that result based upon a different analysis. See Velazquez v. Jiminez, 33 6 N.J. Super. 10, 43 (App. Div. 2000), aff'd, 172 N.J. 240 (2002); Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974).
The purpose of CEPA is "to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Bd. of Educ, 138 N.J. 405, 431 (1994). Specifically, CEPA prohibits an employer from taking retaliatory action against an employee who "[d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes . . . is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ." N.J.S.A. 34:19-3(a) (emphasis added). To prove a CEPA claim, a plaintiff must satisfy the following four elements:
(1) he reasonably believed that an activity, policy, or practice of his employer was in violation of a law, rule, or regulation promulgated pursuant to law or was fraudulent or criminal;
(2) he objected to or complained about the activity, policy or practice;
(3) retaliatory action was taken against him; and
(4) there was a causal link between the employee's action and the retaliatory action of the employer. Dzwonar v. McDevitt, 177 N.J. 451, 462, 469 (2003); Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005).
We focus here on the first of these elements. In his complaint, plaintiff alleged that he suffered adverse employment actions in retaliation for his grievance that alleged the Township violated the CBA and unspecified federal and state labor laws. Before the PERC arbitrator, the issue was confined to whether the denial of his request for overtime violated the CBA. Similarly, in this appeal, plaintiff contends that the Township engaged in adverse employment actions in retaliation for his participation in the test case challenging the police department's refusal to pay overtime to off-duty detectives who are called for guidance and advice on the ground that it violated the CBA. Other than the violation of the CBA, plaintiff has identified no "law, rule or regulation promulgated pursuant to law," Dzwonar, supra, 177 N.J. at 462, that he believed the Township had violated.
"[A] pivotal component of a CEPA claim is the plaintiff's identification of authority in one or more of the categories enumerated in the statute that bears a substantial nexus to his or her claim." Hitesman v. Bridgeway, Inc., ___ N.J. ___, ___ (2014) (slip op. at 28) (emphasis added). The Supreme Court has instructed that when a plaintiff brings a CEPA action, "the trial court must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct. The trial court can and should enter judgment for a defendant when no such law or policy is forthcoming." Dzwonar, supra, 177 N.J. at 463.
In Dzwonar, the Court specifically addressed whether the plaintiff's stated belief that the defendants violated union bylaws could provide a basis for her CEPA claim. The Court concluded that the trial court should have precluded the claim posited on that basis "[b]ecause bylaws are not a 'law, rule or regulation' pursuant to CEPA, but rather 'a contract between the union and its members.'" Id. at 469 (quoting Ackley v. W. Conference of Teamsters, 958 F.2d 1463, 1476 (9th Cir. 1992)).
Here, too, plaintiff's CEPA claim rests upon his contention that he had a reasonable belief the Township violated a contract, the CBA. He has therefore failed to identify an authority enumerated in the statute and is unable to satisfy the first and "pivotal" element of a CEPA claim. See Hitesman, supra, slip op. at 28. His CEPA claim was, therefore, properly dismissed as a matter of law.
As a result, we need not address the arguments he has raised regarding collateral estoppel, the statute of limitations, or the purported existence of a material issue of fact.
Plaintiff has also argued that summary judgment was inappropriate because discovery was incomplete. Generally, a case is not considered ripe for summary judgment if discovery is incomplete. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988). However, the fact that discovery is incomplete may not defeat a summary judgment motion if additional discovery will not change the outcome. Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003). Summary judgment was warranted here as a matter of law based on plaintiff's failure to identify an authority enumerated in CEPA that could provide the basis for his claim. Since the claim hinges upon what enumerated authority he reasonably believed the Township had violated, additional discovery does not have the capacity to change the outcome by revealing his own reasonable belief to him.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION