Opinion
DOCKET NO. A-5535-13T1
11-17-2015
T.D., Plaintiff-Appellant, v. BOROUGH OF TINTON FALLS AND BOROUGH OF TINTON FALLS POLICE DEPARTMENT, Defendant-Respondent.
Charles J. Sciarra argued the cause for appellant (Sciarra & Catrambone, LLC, attorneys; Mr. Sciarra and Matthew R. Curran, of counsel and on the briefs). Mitchell B. Jacobs argued the cause for respondent (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Mr. Jacobs, of counsel; Paul L. LaSalle, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-395-11. Charles J. Sciarra argued the cause for appellant (Sciarra & Catrambone, LLC, attorneys; Mr. Sciarra and Matthew R. Curran, of counsel and on the briefs). Mitchell B. Jacobs argued the cause for respondent (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Mr. Jacobs, of counsel; Paul L. LaSalle, on the brief). PER CURIAM
Plaintiff T.D., a police officer in the Borough of Tinton Falls Police Department, appeals from summary judgment dismissal of his complaint filed against his employer, the Borough of Tinton Falls, and its police department (referred to collectively as defendant), alleging claims under New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 and the Civil Rights Act (CRA), N.J.S.A. 10:6-1 to 2. On appeal, plaintiff argues the motion judge erroneously concluded plaintiff did not make disclosures amounting to whistleblower activity, as defined under CEPA, and did not demonstrate defendant violated his civil rights. We conclude the facts present a prima facie case under CEPA and reverse and vacate the order granting summary judgment on this count of the complaint.
We view the facts in a light most favorable to plaintiff, the non-moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). Because the trial judge granted summary judgment after concluding plaintiff's conduct failed to satisfy the requirements of CEPA, we limit our recital to facts surrounding three identified events plaintiff relies upon as sufficiently supporting his engagement in whistleblower activity. Other incidental facts have been purposefully omitted.
Our opinion should not be construed as excluding at trial the admission of such incidental facts if relevant.
Plaintiff was hired by defendant in 1997. He achieved the rank of corporal and was assigned to the K-9 unit in 2009. He was also the elected delegate for the Policemen's Benevolent Association (PBA).
In 2008, a fellow officer told plaintiff he notified the Monmouth County Prosecutor Office (MCPO) after learning a sergeant had installed a diverter on his residential water meter, which prevented the sergeant's personal water use from being recorded. Following investigation, the MCPO contacted defendant's Chief of Police (the Chief) and directed the initiation of major disciplinary charges against the sergeant for his conduct. When issuing its report, the MCPO redacted the reporting officer's name. Thereafter, the Chief commanded an internal affairs (IA) investigation commence to discern who made the disclosure. As a result, the officer who made the disclosure to the MCPO was discovered and charged with disciplinary violations.
Plaintiff believed not only was it inappropriate to discipline the officer for disclosing illicit activity to the MCPO, but also it was improper to initiate an IA investigation, conducted without regard to established procedures. Plaintiff contacted the PBA attorney and directed him to inform the MCPO of the improper IA investigation and resultant disciplinary charges. Consequently, the MCPO instructed the Chief to cease the investigation and drop the resultant disciplinary charges.
In March of 2009, plaintiff's sergeant, who was the Chief's son, arranged to meet plaintiff outside of work at a local dumpsite. During that meeting, when asked, plaintiff admitted he was aware of the water diversion criminal investigation. Plaintiff's sergeant became upset and told plaintiff he should have "tip[ped] off" his fellow officer, or "at least put an anonymous letter in his mailbox" informing him the MCPO was conducting a criminal investigation. Plaintiff rejected this suggestion as an interference with an ongoing criminal investigation. His sergeant vilified the officer who initially reported the water diversion to the MCPO and told plaintiff "everyone should [start] watch[ing] their backs" and "a certain lieutenant should start paying for cable and that guys should start getting the proper permits in town." Plaintiff's sergeant characterized his comments as asking plaintiff
where our union was going, where in order to get ahead our membership was going to start following each other home from bars, following each other to Dunkin' Donuts to make sure we're paying the appropriate amount for a cup of coffee, going to each other's homes and making sure . . . we don't have cable TV descramblers . . . .
After the meeting, plaintiff directed the PBA attorney to send a letter to the MCPO, to address warnings and statements uttered by his sergeant at the dumpsite meeting. The MCPO requested plaintiff's formal statement regarding this disclosure, which he provided on September 18, 2009. Plaintiff's sergeant also was asked to provide a formal statement, the substance of which was recorded in a memorandum from the MCPO dated October 6, 2009. The memorandum stated plaintiff's sergeant admitted he asked to meet with plaintiff about his prior knowledge of the criminal investigation. He also acknowledged he told plaintiff it "was the PBA's responsibility to protect the officer by informing him of the criminal investigation or providing him with legal representation." Plaintiff's sergeant stated he became "very irate and stated some things . . . he didn't mean" including the references to other officers not paying for cable or not obtaining permits. Plaintiff's sergeant insisted he had no knowledge of such illicit activity. As a result of the sergeant's lack of knowledge, the investigation was closed.
Plaintiff alleges he suffered retaliation, including removal from the K-9 unit in January 2010 and denial of a promotion in December 2010. Plaintiff filed this complaint in January 2011 and in May or June 2011, he was passed over for a position as the school resource officer and his requests for assignment to community services were ignored. On August 10, 2012, plaintiff was again reassigned: he alone patrols the local mall, a duty assignment officers in the department term a "punishment post."
In granting defendant's motion for summary judgment, the judge determined plaintiff did not engage in whistleblowing conduct as defined under CEPA. Further, the absence of a whistleblowing act defeated plaintiff's claims defendant committed retaliatory employment actions. The judge also denied plaintiff's CRA claim, concluding disclosures to the PBA attorney and the MCPO were not protected speech.
Appellate review of a trial court's summary judgment determination is well-settled.
In our de novo review of a trial court's grant or denial of a request for summary judgment, we employ the same standards used by the motion judge under Rule 4:46-2(c). Brickman Landscaping, supra, [219] N.J. [at 406]. First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Factual disputes that are merely "'immaterial or of an insubstantial nature'" do not preclude the entry of summary judgment. Ibid. (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)). Also, we accord no deference to the motion judge's conclusions on issues of law.
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).
[Manhattan Trailer Park Homeowners Ass'n v. Manhattan Trailer Court & Trailer Sales, Inc., 438 N.J. Super. 185, 193 (App. Div. 2014).]
"The very object of the summary judgment procedure . . . is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). A motion for summary judgment will not be precluded by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:46-2 (2015). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation and internal quotation marks omitted).
Our review also considers the statutory protections for whistleblower activity. "The Legislature enacted CEPA 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.'" Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). See also Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013). Consistent with its remedial purpose, CEPA's protection is liberally construed. Abbamont, supra, 138 N.J. at 431. Its overarching policy "is to protect society at large." Cedeno v. Montclair State Univ., 163 N.J. 473, 478 (2000).
CEPA provides, in pertinent part:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or
(2) is fraudulent or criminal . . . ;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer . . . ; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;
(2) is fraudulent or criminal . . . .
[N.J.S.A. 34:19-3.]
In addition to facts supporting whistleblower conduct, an employee who claims retaliation under N.J.S.A. 34:19-3 must demonstrate "a causal connection exists between the whistle-blowing activity and the adverse employment action." Dzwonar, supra, 177 N.J. at 462. The causal connection "can be satisfied by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action." Maimone v. Atl. City, 188 N.J. 221, 237 (2006).
On appeal, plaintiff argues the facts support three whistleblower disclosures sufficient to overcome summary judgment. These include: (1) plaintiff's objection to heed his sergeant's warning that he should have "tip[ped] off" a fellow officer under investigation by the MCPO, satisfying N.J.S.A. 34:19-3(c); (2) plaintiff's direction to the PBA attorney to inform the MCPO of the improper IA investigation and what transpired at the dumpsite meeting, including plaintiff's sergeant's suggestion other officers were stealing cable services or not obtaining necessary permits, satisfying N.J.S.A. 34:19-3(a); and (3) plaintiff's formal statement to the MCPO, after the dumpsite meeting with his sergeant, satisfying N.J.S.A. 34:19-3(b). Plaintiff challenges the motion judge's reasoning, which rejected these facts as qualifying. He specifically asserts the judge erroneously concluded the purported illegal activity did not occur in the workplace, was not committed by plaintiff's employer, and plaintiff's disclosures to the MCPO were not publicized to a public entity. We agree with plaintiff's analysis.
The trial judge mistakenly focused on the disclosure of illegal acts of the individual officers to divert water or possibly cable services, noting the disclosure of a fellow officer's conduct of "diverting water and mak[ing] reference[s] to other officers allegedly not paying for cable services while off duty at their private residences. . . . [was] not an illegal activity by the plaintiff's employer." This narrow view overlooks the broader conduct by defendant's supervisory officers, flowing from plaintiff's disclosures.
CEPA defines "employer" as "any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent[.]" N.J.S.A. 34:19-2(a). When determining whether someone is an employer, we must focus on the public policy behind the law as opposed to individual labels. Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 241 (2006). In this light, CEPA's policy is to protect employees who report illegal or unethical work-place activities. "CEPA is designed to protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-employees." Estate of Roach v. TRW, Inc., 164 N.J. 598, 609-10 (2000). Understandably, when analyzing this issue, a "dispute between employer and employee must be more than a private disagreement." Maw v. Advanced Clinical Communs., Inc., 179 N.J. 439, 445 (2004).
In review, we cannot ignore the facts presented in this matter relate to allegations of illegal activities by police officers, and implicate what is commonly referred to as the "blue wall" of police silence. "The term 'blue wall' is common parlance for police officers' reluctance to incriminate their fellow officers." State v. Morais, 359 N.J. Super. 123, 132 (App. Div. 2003) (citing Ricciuti v. N.Y. City Transit Auth., 70 F. Supp. 2d 300, 333-34 (S.D.N.Y. 1999)) (stating the blue wall of silence is a "distressingly familiar phenomenon[,]" which typically arises when a police officer is charged with misconduct and other members of the squad remain mute, despite their personal knowledge of the facts), certif. denied, 177 N.J. 572 (2003).
Police officers take an oath to uphold the law and their position "require[s] a high level of honesty, integrity, sensitivity, and fairness in dealing with members of the public, knowledge of the law, and a pattern and exhibition of law-abiding conduct." State v. Gismondi, 353 N.J. Super. 178, 185 (App. Div. 2002). Further, the responsibilities attached to the exclusive positions held by police elevate those officers as persons demonstrating an enhanced model of good behavior, or, one "'who stands in the public eye as an upholder of that which is morally and legally correct.'" Hartmann v. Police Dept. of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992) (quoting Appeal of Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). If this were not so, it would tend to destroy public respect for and confidence in the value of upholding the law itself. Therefore, we view plaintiff's disclosures of alleged criminal conduct by a fellow officer through this prism. See Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965) ("[A] police officer is a special kind of public employee. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public[.]"), certif. denied, 47 N.J. 80 (1966).
Here, plaintiff's sergeant, who was his immediate superior, challenged the failure to "tip off" a fellow sergeant whose conduct was the subject of a criminal investigation by the MCPO. Per plaintiff's testimony, his sergeant grew angry because plaintiff insisted the "suggestion" was improper and amounted to interference with a criminal investigation. The sergeant's additional comments as related by plaintiff, such as "everyone should watch their backs," when coupled with workplace actions that occurred thereafter, reasonably suggest the sergeant's intent to act in his capacity within the department.
As held by the Court in Higgins v. Pascack Valley Hospital, 158 N.J. 404 (2000), illegal activity of co-employees falls within subsection N.J.S.A. 34:19-3(c), which does not contain a requirement the conduct be "by the employer." Higgins, supra, 158 N.J. at 424. ("We hold, therefore, that . . . CEPA prohibits an employer from taking retaliatory action against an employee, who has a reasonable basis for objecting to a co-employee's activity, policy, or practice covered by N.J.S.A. 34:19-3[(c)]."). We conclude the sergeant's "suggestion" plaintiff should have tipped off a fellow officer smacks of perpetrating an illegal police cover up, and falls within the scope of disclosures covered by N.J.S.A. 34:19-3(c).
We also find evidentiary support for retaliatory conduct engaged in by the employer tied to plaintiff's refusal to abide by the sergeant's suggestion. Plaintiff points to the initial dumpsite meeting as the point when his treatment by superiors changed, leading to the described adverse work actions. The sergeant delivered his message at a remote location, the dumpsite, and made plain plaintiff's involvement to protect the officer initially making the disclosure to the MCPO was unacceptable, and plaintiff's failure to warn a brother officer, was wrong. Also, an improper IA investigation was prompted to ferret out who initiated the disclosure to the MCPO. When the disclosing officer was discovered, he was subjected to disciplinary charges for not going through the chain of command. Later comments labeling disclosing officers "rats" and the new captain's directive for officers in the department not to "air our dirty laundry," reinforce the reasonable inference plaintiff's failure to keep quiet about illicit conduct engaged in by fellow officers or his refusal to warn officers about potential or pending legal proceedings would not be tolerated by the department.
We also reject defendant's suggestion this communication, as well as the disclosure to the MCPO regarding the content of the conversation, was "personal," or solely addressed to plaintiff as the PBA representative and not as an officer subject to his command. Plaintiff's initiation of notice to the MCPO of the improper IA investigation prompted review of his sergeant's assertion of officer misconduct, which we conclude represents a qualifying whistleblowing disclosure under N.J.S.A. 34:19-3(a). The fact the disclosure by plaintiff was made through counsel does not change the import of the disclosure. Counsel was acting to enforce plaintiff's delegated responsibility to assure compliance with agreed workplace policies and procedures.
Plaintiff contends defendant violated N.J.S.A. 2C:29-1, which makes it a crime if one "impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle . . . ."
Understanding "our case law has taken an inclusive approach in determining who constitutes an employee for purposes of invoking the protection provided through this remedial legislation[,]" Lippman v. Ethicon, Inc., 222 N.J. 362, 379 (2015), we conclude the nature of the relationship controls, not the labels. Feldman, supra, 187 N.J. at 241.
The Chief prompted IA to conduct an investigation to locate who revealed the sergeant's water diversion activities, even though it was clear the sergeant's conduct was unlawful. Through the PBA, plaintiff asserted the IA investigation against one member was retaliatory and also that the IA was ignoring established policy for conducting internal inquiries. The PBA, as a watchdog, assured the police department complied with all legal requirements and policy mandates in the workplace. Plaintiff argued his disclosure of these unlawful practices caused him to be a target of retaliation by his superiors, which is actionable under CEPA. See Delisa v. Cnty. of Bergen, 165 N.J. 140, 147 (2000) ("A construction of the whistleblower statute that would protect against employer retaliation an employee who communicated to the employer an objection concerning a co-employee's criminal conduct, . . . but would not protect that same employee if he or she testified before a public body investigating the co-employee's criminal conduct, . . . surely would be anomalous.") As the Court recently noted in Lippman, "our case law has extended the reach of that definition [of employee under CEPA], not restricted it." Lippman, supra, 222 N.J. at 380. Plaintiff as the PBA delegate was the membership liaison with administration. We conclude this role is akin to the "watchdog" employee role found protected by CEPA in Lippman. Id. at 381.
Finally, we consider plaintiff's formal statement to the MCPO revealing his sergeant's statements suggesting supervisory officers had knowledge of and protected a lieutenant and other department officers engaged in illicit or illegal activity. The MCPO's investigation included not only whether officers were involved in illegal or illicit conduct, but also whether the sergeant and other superior officers were aware of the conduct and ignored it. Because plaintiff's sergeant averred he had no direct knowledge of such illicit conduct, the investigation was dropped. We conclude plaintiff's disclosure was an employment related activity and not private conduct falling outside the statute.
In our view, plaintiff "[p]rovide[d] information to, or testifie[d] before, [a] public body conducting an investigation, hearing or inquiry into any violation of law . . . . by the employer[.]" N.J.S.A. 39:19-3(b). Although the illegal activity included possible theft of services by an employee, the additional act of ignoring the known conduct and the police failure to prosecute what amounted to criminal theft because the perpetrator was a police officer, was conduct by the employer. See also Delisa, supra, 165 N.J. at 147 (holding CEPA's protection against employer retaliation also extends to employees reporting information to public bodies concerning co-employee misconduct under N.J.S.A. 39:19-3(b)).
Regarding this disclosure, we conclude the trial judge also incorrectly stated the MCPO was not a qualifying public body. "Public Body" is defined as "any federal, State, or local law enforcement agency, prosecutorial office, or police or peace officer[.]" N.J.S.A. 34:19-2(c)(4).
Following our review of the summary judgment record, giving all favorable inferences to plaintiff's allegations on disputed facts, we conclude plaintiff's evidence meets the prima facie threshold, and establishes whistleblower conduct. His proofs show he disclosed, to a public body, employer conduct the employee reasonably believed was unlawful, provided testimony or information to a public body investigating employer misconduct, and objected to, and refused to participate in, an act the employee reasonably believed was unlawful or "against a clear mandate of public policy[.]" N.J.S.A. 34:19-3(a)-(c).
In addition to performing a whistleblowing activity, a plaintiff must also prove an adverse employment action was taken against him or her; and a causal connection exists between the whistleblowing activity and the adverse employment action. Hitesman v. Bridgeway, Inc., 218 N.J. 8, 29 (2014); Dzwonar, supra, 177 N.J. at 462. Once a plaintiff establishes these elements, the burden shifts to the defendant to advance "a legitimate, nondiscriminatory reason for the adverse conduct against the employee." Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005). "If such reasons are proffered, plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Id. at 39.
Defendant argues plaintiff failed to present sufficient evidence to support a finding "an adverse employment action" was taken against him. We disagree.
CEPA prohibits an employer from taking "retaliatory action" against an employee for protected whistleblower conduct. N.J.S.A. 34:19-3. "Retaliatory action" is defined as "the 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).
What constitutes an "adverse employment action" must be viewed in light of the broad remedial purpose of CEPA, and our charge to liberally construe the statute to deter workplace reprisals against an employee speaking out against a company's illicit or unethical activities. Cast in that light, an "adverse employment action" is taken against an employee engaged in protected activity when an employer targets him for reprisals — making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations — causing the employee to suffer a mental breakdown and rendering him unfit for continued employment.
[Donelson v. DuPont Chambers Works, 906 N.J. 943, 957-58 (9011).]
Argument on this issue is sparse, likely because the motion judge appeared to conclude plaintiff's proofs satisfied this element. Plaintiff cites his removal from the K-9 unit and his return to a patrol unit despite his seniority, which although not accompanied by a demotion in rank, represented a change in position and had an attendant loss of a K-9 stipend. Also, the denial of a promotion and his requests for transfer to positions such as resource officer or community relations, and a later assignment as the sole officer directed to patrol the mall constitute adverse employment actions under N.J.S.A. 34:19-3.
"[E]ven without any reduction in compensation, a withdrawal of benefits formerly provided to an employee may be found in some circumstances to constitute an adverse employment action." Maimone, supra, 188 N.J. at 235-36. Also, retaliatory conduct "can include . . . 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." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003). Under these standards, plaintiff's proofs are sufficient.
We also conclude plaintiff presented prima facie evidence demonstrating the adverse employment actions resulted from plaintiff's alleged whistleblowing activity. Dzwonar, supra, 177 N.J. at 462. "A CEPA plaintiff can prove causation by presenting either direct evidence of retaliation or circumstantial evidence that justifies an inference of retaliation." Zaffuto v. Wal-Mart Stores, Inc., 130 Fed. Appx. 566, 569 (3d Cir. 2005). These determinations are fact sensitive and are determined by the ultimate factfinder. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000).
The record reflects both direct and circumstantial evidence satisfying this prong. Plaintiff has shown the asserted, but unrebutted, adverse employment actions, along with antagonism and animus toward plaintiff, which demonstrate "more likely than not" the employer was motivated by a retaliatory intent. Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 293 (App. Div. 2001) (citations and internal quotation marks omitted). See also Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 431 (App. Div. 1995) (holding a plaintiff can discredit an employer's response and create an inference of retaliatory conduct by pointing to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action [so] a reasonable factfinder could rationally find them unworthy of credence") (citation and internal quotation marks omitted).
In granting summary judgment, the trial judge simply concluded this prong was not met. We conclude otherwise. The evidence on this issue is sufficient for review by a jury.
Based on our review, the trial judge's grant of summary judgment must be vacated. Plaintiff's CEPA complaint is reinstated and the matter remanded.
In light of this conclusion, we need not address plaintiff's appeal of the dismissal of his CRA claim, which relies on the same facts as his CEPA claim. Plaintiff asserted as a result of his union activities, defendant's "collective actions" violated plaintiff's "rights to freedom of speech, freedom of association, freedom of assembly, and the right to organize and submit grievances and proposals through representatives in violation of the New Jersey State Constitution Article I, (5), (6), (18), and (19)." However, under CEPA, "the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law." N.J.S.A. 34:19-8. As such, by pursuing a claim under CEPA, plaintiff has waived his right to bring a claim under the CRA grounded on the same facts. Young v. Schering Corp., 141 N.J. 16, 29 (1995). The dismissal of this claim will not be disturbed.
N.J.S.A. 10:6-2(c) provides, in pertinent part:
Any person who has been deprived of any . . . privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages . . . .
Affirmed in part and reversed and remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION