Opinion
DOCKET NO. A-2882-13T1
08-28-2015
GARY S. DEMARZO and BRANDY M. DEMARZO, Plaintiffs-Appellants, v. THE CITY OF WILDWOOD, Defendant-Respondent, and CHIEF JOSEPH A. FISHER, CAPT. STEVEN LONG, CAPT. DAVID DEATON, LT. ROBERT N. REGALBUTO, DET. LT. KEVIN MCLAUGHLIN, PTL. SHAWN YUHAS, MAYOR ERNIE TROIANO, JR., ESTATE OF COMMISSIONER FREDERICK G. WAGER, and COMMISSIONER KATHY BREUSS, Defendants.
Arthur J. Murray argued the cause for appellants (Jacobs and Barbone, P.A., attorneys; Louis M. Barbone, of counsel; Mr. Murray, on the briefs). Patrick J. Madden argued the cause for respondent (Madden & Madden, P.A., attorneys; Mr. Madden, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-326-11. Arthur J. Murray argued the cause for appellants (Jacobs and Barbone, P.A., attorneys; Louis M. Barbone, of counsel; Mr. Murray, on the briefs). Patrick J. Madden argued the cause for respondent (Madden & Madden, P.A., attorneys; Mr. Madden, of counsel and on the brief). PER CURIAM
Plaintiff Gary S. DeMarzo, a former Wildwood City police officer, appeals from the January 24, 2014 summary judgment dismissal of his complaint alleging violations of the Conscientious Employees Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA) by his former employer, defendant City of Wildwood, and several individual defendants employed by the Wildwood City Police Department. In a written memorandum, the judge examined plaintiff's complaint and found his assertions were previously presented and denied in an administrative disciplinary hearing, conducted by the Civil Service Commission (Commission). Citing Winters v. North Hudson Regional Fire & Rescue, 212 N.J. 67 (2012), the motion judge concluded final disposition of plaintiff's claims of retaliation in defense of the administrative action precluded him from litigating the same issue in Superior Court. Nevertheless, the judge examined the substance of the claim, finding the record did not contain facts to support plaintiff held an objectively reasonable belief he was challenging a perceived violation of law or public policy.
Co-plaintiff Brandy M. DeMarzo asserts a claim for damages because she was deprived of prescription benefits as a consequence of her husband's suspension. For ease in our opinion we solely designate Gary S. DeMarzo as plaintiff.
Plaintiff's appeal is limited to the dismissal of his claims against defendant City of Wildwood. He has not appealed from the summary judgment dismissal of his claims against defendants Chief of Police Joseph A. Fisher, Captain Steven Long, Captain David Deaton, Lieutenant Robert N. Regalbuto, Detective Lieutenant Kevin McLaughlin, Patrolman Shawn Yuhas, Mayor Ernie Troiano, Jr., Estate of Commissioner Frederick G. Wager, or Commissioner Kathy Breuss.
On appeal, plaintiff principally maintains the judge erroneously applied Winters and the record is sufficient to establish a prima facie CEPA claim, independent of any alleged retaliatory conduct, obviating the entry of summary judgment. We disagree and affirm.
We recite the facts taken from the summary judgment record, as viewed in the light most favorable to plaintiff, the non-moving parties. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). Plaintiff's retaliation claim originated from a patrol incident when he was dispatched to investigate a reportedly abandoned vehicle with out-of-state license plates. The 1991 Ford pick-up truck had a current Tennessee registration sticker, a flat tire and, by its appearance, had not been moved in some time. Plaintiff identified the vehicle's owners, who he unsuccessfully attempted to contact. Using an auto entry tool, he opened the vehicle's locked door and found an expired insurance card. Concluding the vehicle was abandoned, he placed a sticker on the car, which included his name, a case number, and the word "Abandoned."
Later that day, the owner called plaintiff and explained he lived on the street where his vehicle was legally parked and questioned why it was stickered as abandoned. Shortly thereafter, City Commissioner Kathy Breuss called plaintiff, stating she was following up regarding the investigation of the abandoned vehicle, which she explained belonged to her son-in-law. Breuss advised plaintiff the vehicle was locked and asked him whether he "broke into the truck." She maintained she was "not questioning what [he] did," but was "just trying to find out what happened. That's all." Plaintiff responded he felt intimidated. Both conversations were recorded.
Plaintiff filed an operations report, stating "Breuss very specifically accused me of breaking into the vehicle. [She] continued to accuse me of wrong doing [sic] and I took that as she would now retaliate against me if I didn't forget the incident. In violation of [N.J.S.A.] 2C:27-3." The report eventually reached Chief of Police Joseph A. Fisher, who asked the Cape May County Prosecutor's Office to investigate whether Breuss violated the law. Determining no actionable conduct occurred, the prosecutor's office wrote, "[T]he conversations did not reveal a colorable claim of official misconduct or any other violation of criminal statutes."
Breuss informed City Commissioner Frederick G. Wager, who supervised the police department, that it appeared her son-in-law's vehicle was forcibly entered because "[t]he contents of the glove box had been tossed around. Some were on the seat. Some were on the floor. Further, the [rear-side-door-window-frame] was damaged." Ten days later, Lieutenant Robert N. Regalbuto issued a counseling notice to plaintiff. The notice cited plaintiff's warrantless search without probable cause as "not lawful" and set forth the ordinance provisions requiring police wait five days after stickering a vehicle before it could be towed.
Two months later, plaintiff was again disciplined after an internal affairs investigation determined his conduct violated departmental standards and procedures in the arrest of an alleged assault suspect. The man was arrested in his home, processed and released, but plaintiff never prepared an arrest report or signed a criminal complaint. Private video surveillance cameras captured the audio and video of the underlying events. The investigation determined plaintiff lacked legal justification for the arrest. Further, plaintiff's failure to complete the required paperwork prompted review of other matters, revealing 250 additional record delinquencies. Plaintiff was issued a ninety-day suspension.
The victim of the alleged assault had initially reported the event on June 7, 2004. The matter was transferred to a detective for investigation. Inquiring on how the matter was progressing, the victim followed up several times with plaintiff, including on June 21, 2004, the date plaintiff and another patrolman went to the alleged perpetrator's residence.
Plaintiff requested a departmental hearing to contest his suspension. Prior to the finalization of this matter, plaintiff filed a CEPA complaint. By stipulation, the action was dismissed without prejudice, reserving all parties' rights, pending administrative review of the disciplinary matter.
The stipulation of dismissal mentions plaintiff also received a five-day suspension, the details of which are not in the record.
The departmental hearing officer sustained eight of the ten disciplinary charges, but reduced plaintiff's suspension to sixty days. Plaintiff sought a fair hearing. The matter was certified as a contested case for review by the Office of Administrative Law and a formal evidentiary hearing was held before an Administrative Law Judge (ALJ). The ALJ affirmed plaintiff's amended suspension, sustaining charges related to plaintiff's conduct during the underlying arrest and dismissing those related to the violation of departmental documentation procedure.
Upon de novo review, the Commission upheld a majority of the ALJ's findings and his recommendation to affirm the amended suspension. The Commission cited plaintiff's conduct during the arrest and his subsequent failure to timely complete reports as "unacceptable and warrant[ing] a major disciplinary action."
Before the departmental hearing officer and the ALJ, plaintiff maintained the disciplinary charges resulted from his being "picked out for selective enforcement," noting he had "been treated differently from any other member of the department for . . . similar type allegations of wrongdoing." Plaintiff's counsel then suggested the motive resulted because "a commissioner of this municipality, which controls the operations of government, [wa]s clearly not pleased with [plaintiff]'s conduct. And this may very well have been the precipitating factor for all of these disciplinary matters." The theory of plaintiff's report suggested Breuss "wrongfully exerted her influence" into the workings of the police department, was the "precipitating factor . . . behind a series of allegations" and an "improper investigation" preponderated plaintiff's summation brief filed in the departmental hearing. Tying Breuss's phone call to the "bias investigation [sic]," plaintiff argued the "inescapable conclusion" was the "series of charges with no basis in fact . . . were based upon improper motives and which have resulted in extraordinary unfair [sic] discipline."
Similarly, before the ALJ, plaintiff testified he had no difficulty with his performance until the incident with Breuss. Plaintiff affirmed he was "written-up on charges" for the unlawful arrest, but suggested he was being "singled out" because of the incident with Breuss. When this theory was challenged, he stated: "I think the police department was digging in the dirt, looking for worms, whatever they could find. And one of the things they found was the same thing everybody was doing, and they decided to take me out of line."
The ALJ examined plaintiff to clarify his claims:
[ALJ]: But, you're saying that this case was motivated by your action with the abandonment of the car?
[PLAINTIFF]: Yes.
[ALJ]: I'm trying to make that connection.
[PLAINTIFF]: The connection, I think, was to put a - to stack enough against me to make the Kathy Breuss thing go away and the totality of some sort of resolution to make those two complaints go away. That Kathy Breuss hearing was coming very close to fruition when this, all of a sudden, happened.
. . . .
[ALJ]: Okay. Between April 20th, 2004 and 6/21/04 what happened between you and the police department, separate and aside from the Kathy Breuss incident, that showed some kind of animus, bias, retaliation.
Plaintiff responded his relationship with his supervising captain deteriorated and the other issues arose as detailed in his CEPA complaint. The ALJ again asked what happened and requested plaintiff detail the actions, asking, "you want me to consider the motivation of the police department as being . . . improper[?]" To which plaintiff responded affirmatively.
Plaintiff detailed several grievances, including "clothing allowances, overtime issues. I wasn't paid overtime. The chief denied overtime. I went to a class. He refused to pay for it." Plaintiff stated the clothing allowance involved the denial of his request for a second pair of shoes. The overtime and class issue related to his attendance of a three-day motor vehicle accident investigation class, which he attended. Plaintiff recounted he was paid for the class's regularly scheduled hours, but denied compensation for additional time the class "ran over," which he estimated was between four and six hours. Plaintiff further suggested the disciplinary charges for recordkeeping lapses were manufactured as no other officer to his knowledge had even been disciplined for similar conduct.
In his opinion, the ALJ acknowledged, plaintiff "claims he is being singled out" consistent with his comment during the hearing that plaintiff "want[s] me to consider the motivation of the police department as being - as being improper." The ALJ did not otherwise discuss this defense; however, its rejection is noted from detailed findings sustaining the disciplinary charges. Plaintiff did not appeal from the final agency determination.
Over two years after the Commission issued its final determination, plaintiff filed a new CEPA complaint. Plaintiff's complaint recounted the events surrounding his investigation of the abandoned vehicle, which were questioned by Breuss, who "critique[d] and berate[d]" plaintiff's conduct and "threatened to cause or initiate penalty against . . . plaintiff within the Police Department because of . . . plaintiff's lawful exercise of duty with regard" to the vehicle. Plaintiff reported these events of Breuss's "official misconduct" and her "attempt to influence and intimidate a sworn officer," which he stated led to him being disciplined. Thereafter, plaintiff's everyday functions were scrutinized in a plan orchestrated to "fabricate[] violations of rules and regulations, general orders, violations of departmental policy, protocol, and standard operating procedures, all for the purpose of retaliating against plaintiff for his lawful conscientious and reasonable belief and complaint to his supervisors regarding the improper, unlawful and unauthorized acts of Commissioner Breuss."
On appeal, no party has raised whether the refiling was timely or consistent with the terms of the stipulation of dismissal. --------
The complaint itemized alleged acts of "consistent harassment and retribution," beginning with the performance notice because he broke into an alleged abandoned vehicle. The other alleged instances, occurring between April 29, 2004, and December 5, 2004, include: three denials of requests for clothing reimbursement, rejection of an overtime reimbursement, commencement of an internal affairs investigation following the unlawful arrest that resulted in the sixty-day suspension, selection for a random law enforcement drug test while he was suspended, assignment to the midnight shift, being ordered to attend an interview regarding two internal complaints, and correction by superiors of a report he had filed.
Plaintiff also alleged, when discovery demands were issued by his attorney for an incident involving Lieutenant Regalbuto, additional retaliation occurred as he was appointed as plaintiff's supervisor. Plaintiff maintained: he was regularly harassed for technical infractions, such as the failure to file a time card; denied vacation requests; his transfer requests for a new supervisor were rejected; he suffered criticism during roll call for reading; he was cited for improperly handling evidence; and repeatedly scolded, criticized and subjected to verbal discipline.
Following discovery, defendant moved for summary judgment, arguing plaintiff failed to establish a prima facie CEPA claim and the holding in Winters collaterally estopped plaintiff's whistleblowing claim as it was addressed in a prior administrative proceeding. Defendant maintained the harassment issue was raised before the Commission and rejected, barring plaintiff from later raising it before the Law Division as the basis for retaliation under CEPA.
In opposition, and for the first time, plaintiff alleged defendant failed to annually distribute and keep its employees informed of how to investigate and present whistleblowing complaints, in violation of N.J.S.A. 34:19-7. Plaintiff also challenged the application of Winters, conceding "the issue of retaliation was talked about, . . . was raised," but rejected the notion it was "fully litigated" before the Commission.
On January 24, 2014, the Law Division judge entered an order granting the summary judgment dismissal of plaintiff's complaint with prejudice. In a written opinion attached to the order, the judge found the record demonstrated plaintiff "did raise the issue of retaliation in his disciplinary proceedings," stating "he felt he was being singled out because of the 2004 incident with Commissioner Breuss." Plaintiff "elaborated upon the department's alleged retaliatory acts," recounting issues pertaining to uniform and clothing allowances, "and [the] refusal to approve [his request for] overtime pay." Citing Winters, the judge concluded the alleged acts of retaliation were "central" to the underlying administrative proceeding and, therefore, barred by the doctrine of collateral estoppel from forming the basis of plaintiff's whistleblowing activity for purposes of his CEPA claim.
Nonetheless, the judge also addressed the substance of plaintiff's CEPA claim, rejecting it because plaintiff did not demonstrate he held the "objectively reasonable" belief a law, regulation, or clear mandate of public policy was being violated. The judge found the recorded conversation between plaintiff and Breuss failed to substantiate an unlawful threat or an attempt to "interfere[e] with the official duties of police officers." This appeal ensued.
On appeal, plaintiff challenges the summary judgment dismissal of his complaint as error, arguing the judge incorrectly applied Winters to broadly preclude his CEPA claim. Plaintiff also maintains defendant's reporting deficiencies pursuant to N.J.S.A. 34:19-7 provides him with an independent cause of action, separate and distinct from the alleged instances of retaliation.
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, comment 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).
Before examining the issues raised on appeal, we briefly review the nature of plaintiff's cause of action. CEPA was "enacted . . . 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) (citation and internal quotation marks omitted). The statute 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, including any violation involving deception of, or misrepresentation to . . . any governmental entity . . .; or
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud . . . any governmental entity;
. . . .
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, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any . . . any governmental entity . . . .
[N.J.S.A. 34:19-3.]
The Supreme Court has identified the necessary elements a plaintiff must establish to assert a prima facie claim under CEPA. Lippman v. Ethicon, Inc., ___ N.J. ___, ___ (2015) (slip op. at 34) (citing Dzwonar, supra, 177 N.J. at 462). To sustain his or her claim, an aggrieved whistleblower must demonstrate:
(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;See also Winters, supra, 212 N.J. at 89.
(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.
[Id. at 34-35 (citation and internal quotation marks omitted).]
This standard does not require a plaintiff to "show that his or her employer or another employee actually violated the law or a clear mandate of public policy." Dzwonar, supra, 177 N.J. at 462, 464. Rather, "a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred." Id. at 464.
In other words, when a defendant requests that the trial court determine[d] as a matter of law that a plaintiff's belief was not objectively reasonable, the trial court must make a threshold determination that there is a substantial nexus between the complained-of conduct and a law or public policy identified by the court or theSee also Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 40 (App. Div.) ("CEPA requires judicial resolution of threshold legal issues respecting existence of a statutory, regulatory or other clear mandate of public policy before the trier of fact determines whether an employee has been retaliated against for acting upon an objectively reasonable belief of the existence of such clear mandate by objecting to or refusing to perform acts in violation of the mandate." (citation and internal quotation marks omitted)), certif. denied, 185 N.J. 39 (2005).
plaintiff. If the trial court so finds, the jury then must determine whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable.
[Ibid.]
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." Id. at 38. "If such reasons are proffered, [the] plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Id. at 39.
Also implicated by this matter is the collateral estoppel effect of administrative disciplinary hearings upon later filed CEPA actions. See Winters, supra, 212 N.J. at 85-88. In Winters, the plaintiff was terminated from his position of public employment after separate disciplinary proceedings on unrelated matters. Id. at 71. Following discovery and a hearing before an ALJ, the employer's disciplinary action was upheld in part, "despite [the] plaintiff's defensive theme of employer retaliation" which the ALJ found unsupported. Ibid.
The plaintiff filed a complaint in the Law Division, asserting the defendant had taken retaliatory action against him in violation of, among other things, CEPA. Id. at 82. The defendant moved for summary judgment, arguing principles of collateral estoppel barred the plaintiff from pursuing his claims. Ibid. The motion was denied and affirmed upon appeal, prompting the Supreme Court to grant certification. See Winters v. N. Hudson Reg'l Fire & Rescue, No. A-1117-09 (App. Div. August 30, 2010), rev'd, 212 N.J. 67 (2012). The issue addressed by the Court, as framed, was "whether a plaintiff, who was removed from public employment after positing a claim of employee retaliation in a civil service disciplinary proceeding, should be barred from seeking to circumvent that discipline through a subsequent [CEPA] action also alleging retaliation." Winters, supra, 212 N.J. at 71.
Following its review, the Supreme Court articulated "certain principles" which guided its query, namely that "it is critical that there be intelligent and respectful interplay between the two systems of relief that may be called on to review the discipline of public employees -- the civil service disciplinary system and CEPA's relief from retaliatory adverse employment action by an employer." Id. at 72. Recognizing "concerns about finality and consistency" when examining "the intersection of judicial and administrative proceedings," id. at 87, the Court held a plaintiff who unsuccessfully raised retaliation as a defense in a disciplinary proceeding was subsequently barred by the principles of collateral estoppel from relitigating retaliation claims in a CEPA action before the Law Division. Id. at 72 ("A litigant should not be permitted to participate in the administrative system designed to promote a fair and uniform statewide system of public employee discipline," only to eschew advancing a meritorious defense "in an attempt to save it for later duplicative litigation."). In reaching its conclusion, the Court instructed: "Findings made as part of the discipline process will have preclusive impact in later employment-discrimination litigation raising allegations of employer retaliation based on the same transactional set of facts" because "[i]t is unseemly to have juries second-guessing major public employee discipline imposed after litigation is completed before the Commission to which the Legislature has entrusted review of such judgments." Id. at 74.
As in Winters, plaintiff raised acts of harassment as an administrative defense to combat the disciplinary charges resulting in his suspension. He articulated his challenge during the ALJ hearing stating Breuss's conduct, which he believed was an unlawful attempt to intimidate him and influence a police matter, resulted in retaliatory conduct. Further acts of retaliation included denial of his clothing request and overtime submission, the pursuit of disciplinary charges, and a suspension for his unremarkable failing in paperwork upkeep. His CEPA complaint states defendant commenced "a campaign of sequential and consistent harassment and retribution" against plaintiff following the incident with Breuss. As noted the complaint identifies the same act of retribution plaintiff testified to before the ALJ.
Here, plaintiff's CEPA retaliation claims are based on exactly "the same transactional set of facts," ibid., as his defense to the disciplinary charges. Testimony in the administrative hearing squarely raised the same issues, which the ALJ noted in his opinion. The ALJ examined each disciplinary charge, viewing whether plaintiff was singled out as he suggested, and upheld those charges grounded upon violations of the law or departmental regulations and policy. In doing so, he rejected assertions of pretext or retaliation.
We find no flaw in the motion judge's application of Winters as the record contains no other facts to support plaintiff's CEPA claim. Accordingly, as required by Winters, plaintiff is precluded from affirmatively repackaging the same issues raised before the ALJ as support for asserted violations of CEPA. See Wolff v. Salem Cnty. Corr. Facility, 439 N.J. Super. 282, 292-96 (App. Div.) (discussing the scope of Winters's preclusive effect), certif. denied, 221 N.J. 492 (2015).
Next, plaintiff argues the retaliation at issue encompasses more than his suspension, which he concedes is barred as a basis for relief. However, the complained-of actions do not demonstrate the required "'adverse employment action . . . taken against him.'" Lippman, supra, slip op. at 35 (quoting Dzwonar, supra, 177 N.J. at 462). The retaliatory action against an employee as used in N.J.S.A. 34:19-3 is defined by the statute. "'Retaliatory action' means 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). Plaintiff's complaints of repeated scolding, criticism, correction, and verbal discipline do not rise to this level.
Plaintiff's newly added claim asserting an independent cause of action for defendant's violation of N.J.S.A. 34:19-7 is equally unavailing. The statute states, in pertinent part:
An employer shall conspicuously display, and annually distribute to all employees, written or electronic notices of its employees' protections, obligations, rights and procedures under this act, and use other appropriate means to keep its employees so informed. . . . The notice shall include the name of the person or persons the employer has designated to receive written notifications pursuant to . . . this act. . . .
[N.J.S.A. 34:19-7.]
A whistleblower plaintiff pursuing a cause of action based on disclosure to a public body, as claimed by plaintiff who asserts he disclosed Breuss's conduct in his report, must demonstrate compliance with the exhaustion requirement in N.J.S.A. 34:19-4. Lippman, supra, slip op. at 47. N.J.S.A. 34:19-4 makes clear that "[t]he protection against retaliatory action provided by this act" is inapplicable unless the aggrieved employee makes his or her whistleblower disclosure to "the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice." "The purpose of that requirement, which was part of CEPA as it was originally enacted, is to provide an employer with the opportunity to correct illegal or unethical activities." Barratt v. Cushman & Wakefield, 144 N.J. 120, 130 (1996).
Here, the record contains no facts supporting plaintiff's compliance with this provision. Further, no causal link is averred between the alleged adverse employment action and the failure to comply with N.J.S.A. 34:19-4. Plaintiff does not claim defendant failed to inform him about the act. The lack of proof supporting each element of the cause of action properly requires summary judgment dismissal.
Next, we reject as specious, plaintiff's argument suggesting he could advance a CEPA claim asserting he was "singled out" for discipline, when the discipline was imposed following his unequivocal acts of executing an illegal search and an equally unjustified arrest. The motion judge's determinations in this regard were supported by the facts of record. Plaintiff's arguments to the contrary lack merit. R. 2:11-3(e)(1)(E).
Lastly, we are compelled to comment on plaintiff's repeated mantra he was disciplined for "following informal policy" -- singled out for doing what everyone else was doing. No factual basis exists to conclude Breuss's phone call was more than what she explained it was, to find out what happened. See Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 445 (2004) (reaffirming "the limiting principle enunciated in Mehlman[ v. Mobil Oil Corp., 153 N.J. 163, 188 (1998)], that the complained of activity must have public ramifications, and that the dispute between employer and employee must be more than a private disagreement"). The record is equally devoid of any factual support for plaintiff's bald assertions of "informal" departmental policies. See Petersen, supra, 418 N.J. Super. at 132 (recognizing "[u]nsubstantiated inferences and feelings" and "[b]are conclusions . . . will not defeat a meritorious application for summary judgment" (second alteration in original) (citations and internal quotation marks omitted)). Defendant presents actual policies in contravention of plaintiff's claims, which were unrebutted by any evidence.
Plaintiff was not disciplined for placing a sticker on a vehicle he believed was abandoned or disciplined because he fell behind in his paperwork. He was sent a counseling notice for committing a warrantless search of a vehicle, with no legal justification, see State v. Vargas, 213 N.J. 301, 321 (2013) (holding the community-caretaking doctrine will not justify a warrantless search absent exigent circumstances), and he was disciplined for violating a citizen's due process rights in effectuating an unwarranted arrest. The departmental hearing officer, ALJ, and Law Division noted plaintiff's defensive response to Breuss's inquiry, which was ultimately found to be an unwarranted police intrusion, was not an objectively reasonable basis to support his claims of retaliation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION