Opinion
DOCKET NO. A-3494-10T2
07-17-2012
FERNANDO PINIERO, THOMAS PRIMO, and DENNIS VECHARELLI, Plaintiffs, and PAUL DEHOPE, JOSEPH SOULIAS, and OSWALD MORALES, Plaintiffs-Appellants, v. NEW JERSEY DIVISION OF STATE POLICE, CARSON DUNBAR, JOSEPH SANTIAGO, CARL LEISINGER, HOWARD BUTT, VINCENT MODARELLI, WILLIAM NEWSOME, EDGAR HESS, KENNETH HESS, FREDERICK MADDEN, ROBERT DUNLOP, WILLIAM MEDDIS, KIM HUSBAND, BARRY BOWERS, ROBERT KILMURRAY, LOUIS TORANTO, DONALD IZZI, MICHAEL FORTINO, JOHN GORE, DEBRA STONE, ANTHONY COWELL, AND GAIL MAZUCO, Defendants-Respondents.
William H. Buckman argued the cause for appellants (William H. Buckman Law Firm, attorneys; Surinder K. Aggarwal, on the brief). Paulette Brown argued the cause for all respondents except Joseph Santiago (Edwards Angell Palmer & Dodge LLP, attorneys; Ms. Brown, on the brief). Irving L. Hurwitz argued the cause for respondent Joseph Santiago (McElroy, Deutsch, Mulvaney & Carpenter LLP, attorneys; Mr. Hurwitz, of counsel and on the brief; Erin A. Rowin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-582-02.
William H. Buckman argued the cause for appellants (William H. Buckman Law Firm, attorneys; Surinder K. Aggarwal, on the brief).
Paulette Brown argued the cause for all respondents except Joseph Santiago (Edwards Angell Palmer & Dodge LLP, attorneys; Ms. Brown, on the brief).
Irving L. Hurwitz argued the cause for respondent Joseph Santiago (McElroy, Deutsch, Mulvaney & Carpenter LLP, attorneys; Mr. Hurwitz, of counsel and on the brief; Erin A. Rowin, on the brief). PER CURIAM
Plaintiffs Paul DeHope, Joseph Soulias, and Oswald Morales appeal the dismissal on summary judgment of their claims asserted under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. All are State Troopers who alleged they experienced retaliation after they filed numerous complaints while assigned to the Organized Crime Unit. Plaintiffs named as defendants the New Jersey Division of State Police (NJSP), Carson Dunbar (Superintendent of NJSP from November 1999 to January 2002), Carl Leisinger, Howard Butt, Vincent Modarelli, William Newsome, Edgar Hess, Kenneth Hess, Frederick Madden, Robert Dunlop, William Meddis, Kim Husband, Barry Bowers, Robert Kilmurray, Louis Toranto, Donald Izzi, Michael Fortino, John Gore, Debra Stone, Anthony Cowell, and Gail Mazuco. In a second amended complaint, plaintiffs added Joseph Santiago, the Superintendent of NJSP from March to October 2002, as a defendant. Plaintiffs asserted seventeen causes of action; however, this appeal is confined solely to counts one and thirteen of the second amended complaint asserting CEPA causes of action. We affirm the order dismissing the CEPA claims filed by plaintiffs DeHope and Soulias, but reverse the order dismissing the CEPA claims asserted by plaintiff Morales.
On February 4, 2011, the remaining claims asserted by plaintiff Piniero were dismissed. We have no record of a notice of appeal filed by Piniero. Sometime during discovery, Primo and Vecharelli withdrew from litigation. The record does not reflect the circumstances of their withdrawal.
I.
The NJSP is divided into a number of different sections, including the criminal investigation section. The criminal investigation section is subdivided into bureaus, including narcotics, organized crime, applicant applications and compliance, criminal investigations, special services, and cyber crime and child protection. Positions in the criminal investigation section are specialized and highly competitive.
In the late 1990s and in 2000, all plaintiffs were detectives in the organized crime bureau, north zone of the criminal investigation section, located in West Paterson. Thomas Primo and Dennis Vecharelli had supervisory responsibilities.
The focuses of this litigation are plaintiffs' experiences in the organized crime bureau, their complaints in the late 1990s through 2000, and the alleged retaliation they experienced after making those complaints. Nevertheless, plaintiffs included a variety of complaints regarding their experiences in the NJSP, dating back to their dates of hire in the 1980s. Claims arising in the 1980s are time-barred; nevertheless, a discussion of these earlier experiences is necessary to understand the CEPA claims at issue on appeal, and also to understand why some of the defendants were named in this litigation. Therefore, we summarize the work histories of the three plaintiffs involved in this appeal, up to the point where they were assigned to the organized crime bureau. Thereafter, we address their complaints about the organized crime bureau and their allegations of retaliation.
A. DeHope's Work History with the NJSP up to Organized Crime Bureau Assignment
DeHope began employment with the NJSP in 1982. His first assignment was as a road trooper in northern New Jersey. He claims he was trained in racial profiling.
In 1987, he transferred to the narcotics bureau to work as a dog handler in the K-9 unit. There, he was promoted to detective. As a dog handler, DeHope worked mostly with road troopers. He contends that on multiple occasions in the late 1980s defendant John Gore instructed him to create a "programmed alert," meaning to plant drugs, drug residue, or currency at a site in order to force a reaction from his dog and generate probable cause for a search warrant. On one occasion a member of the narcotics unit also asked DeHope to falsely signal that his dog had alerted him to the presence of drugs, but DeHope refused to do so.
In 1988, 1990, and the early 1990s, DeHope complained to Gore and Gore's superior about profiling. They did nothing.
In 1993, DeHope was involved in a stop while on a patrol where a large amount of narcotics were found. DeHope interviewed one suspect, who accused a trooper of being involved in narcotics activity. Defendant Howard Butt stated he would follow up on the accusation, and DeHope memorialized the suspect's statement in his report. However, weeks later, DeHope was told by Gore that he was being investigated regarding the incident. Almost immediately after that incident, K-9 troopers were ordered not to file reports.
In mid-1993, Gore gave DeHope a negative review, allegedly at the direction of Gore's superiors. Then, in October 1993, an internal investigation was opened on DeHope regarding his loss of an NJSP identification card. NJSP assigned Gore as the investigator. DeHope was disciplined for that offense.
In 1994, DeHope attempted to file an Equal Employment Opportunity (EEO) complaint about Gore's requests for programmed alerts, and he claimed the existence of a hostile work environment. When DeHope was informed he could not file a discrimination claim because he was not a member of a protected class, he stated he wanted to initiate an internal investigation regarding Gore. However, DeHope was informed that the matter would be handled within his unit, and he was removed from his normal station for a few weeks. Also in 1994, Gore attempted, unsuccessfully, to retire DeHope's dog. DeHope believed this effort was an indirect attempt to get rid of him.
In 1996, DeHope believed NJSP unnecessarily retired his dog, and DeHope was involuntarily transferred from the K-9 unit to the organized crime bureau in West Paterson. At the time, he held the rank of detective one. DeHope admitted he could have continued in the K-9 unit with another dog. However, for personal reasons he felt that was impossible.
DeHope claimed that the transfer constituted retaliation for earlier complaints about racial profiling. At the time of DeHope's transfer, defendant Robert Dunlop was a major in charge of the investigations section. DeHope met with Dunlop twice, explained that there was no justification for retiring his dog, and claimed that he was being transferred because of his complaints about racial profiling, among other things. DeHope held Dunlop responsible for the transfer a few weeks after the second meeting.
DeHope also held defendant Vincent Modarelli responsible for "a lot of things that happened to [him]" in the K-9 unit because Modarelli was one of DeHope's supervisors. He alleged that Modarelli once told Gore that DeHope had "dug [himself] a hole that [he] can never get out of."
B. Soulias's Work History with the NJSP up to Organized Crime Bureau Assignment
Soulias became a trooper in 1986. In 1993, he was promoted to the rank of trooper one, and in 1998, he was promoted to the title of detective one.
Soulias is Caucasian, married to a Chinese woman. He alleged that from the beginning of his employment he witnessed racial slurs and discriminatory practices. In the early part of his career as a road trooper, he also witnessed racial profiling in vehicle stops. Soulias did not engage in profiling, and he was told that his failure to be aggressive in arresting people would hurt his career.
He made his first EEO-type complaint in 1993. Specifically, he asked his supervisor, Ken Duhanish, to stop referring to Asians as "gooks," telling Duhanish that his wife was Chinese. Duhanish refused and told Soulias not to take it personally.
In 1995, Soulias and others from his station spoke to a captain from the EEO office about racial slurs and threats of violence uttered by Joe Budzinski, the station commander. They also allege Budzinski created a hostile work environment. They were told not to file a formal complaint. Instead, Budzinski was transferred and allowed to retire with a full pension and without any discipline.
In 1996, Soulias and other troopers met with people from EEO regarding Captain Sal Maggio's use of racial slurs and his threats to transfer Soulias as punishment for his earlier complaint against Budzinski. A few months later, Soulias received a letter stating that there would be no investigation of his complaints.
In 1997, Soulias applied to work with defendant Howard Butt in the organized crime unit. He learned that Maggio had been Butt's coach and mentor when he started with the NJSP. Soulias assumed that Maggio's relationship with Butt was the reason he did not receive the job.
Also in 1997, Soulias complained to his squad supervisor, Lee Hendrickson, about his use of racial epithets. When Hendrickson ignored his complaints, Soulias complained to Maggio, his captain, who responded Soulias would be court martialed if he did not follow orders from Hendrickson. Soulias was promoted at about the time to detective one and commenced work in the organized crime unit.
C. Morales's Work History with the NJSP up to Organized Crime Bureau Assignment
Morales commenced employment with the NJSP in 1983. His first assignment was as a road trooper in northern New Jersey. He was transferred to the organized crime unit in 1988.
Morales claimed he suffered from racial discrimination throughout his career and refused to engage in racial profiling. He suffered from racial comments, did not have the opportunity to go to classes to advance his career, and received lesser assignments and equipment than other troopers. He attributed the loss of opportunities to his lack of connections and because he did "not play [] the game" and was not part of a "clique."
II. Plaintiffs' Complaints in 1999 and 2000
Working in the organized crime unit, DeHope, Soulias and Morales were dissatisfied with some of their supervisors in the West Paterson office, as well as members of the NJSP statewide command structure. The complaints focused on in ascending hierarchical order: Michael Fortino (detective sergeant and a supervisor in the organized crime unit); Louis Toranto (detective sergeant and a supervisor in the organized crime unit); Kim Husband (detective sergeant and assistant unit leader of the organized crime unit); William Newsome (detective sergeant first class, subsequently lieutenant, and unit supervisor of the organized crime unit); Kenneth Hess (assistant bureau chief); Edgar Hess (bureau chief); and Frederick Madden (acting section supervisor, investigations section).
A. Internal Complaints
Plaintiffs claim they made a variety of internal complaints about their managers in the organized crime unit. For example, in May 1999, DeHope complained that Newsome instructed DeHope's immediate supervisor, Primo, to perform his evaluation even though Primo had been detached from the unit. Primo gave DeHope a good evaluation. However, Newsome, who should have performed the evaluation, altered it downward. DeHope first complained to Newsome and filed a union grievance. He then met with Edgar Hess. Ultimately, there was a hearing with Madden.
In 1999 and 2000, DeHope also complained to Madden about people ranked below him being promoted before him, in particular Bill Turner, a captain's son. Shortly thereafter, he was promoted to sergeant.
The record reflects promotion lists dated January 25, 1999 and March 22, 2000, on which DeHope is ranked above, not below, an Officer Turner.
In 1999/2000, Morales also complained about the working conditions and managerial practices at West Paterson. He allegedly spoke with Husband, Edgar Hess, Madden, and Kenneth Hess, and explained problems he had with Fortino, Toranto, and Newsome, "the whole gamut." Morales and the other plaintiffs, including Soulias, attempted to speak to then-Superintendent Carson Dunbar about the problems in West Paterson. However, Dunbar would not meet with them and the problems continued.
Morales claimed that Newsome once ordered surveillance on him to verify his illness while using sick time. He also claimed Newsome and Butt retaliated against him by taking away vacation time, and by giving him a poor evaluation.
As to Toranto, Morales claimed Toranto did not treat him like a senior detective should be treated in terms of assignments and how he spoke to him. He attributed Toranto's treatment of him as retaliation for a complaint he once made about Toranto disobeying an order from a deputy attorney general with respect to a search warrant.
Morales claimed Fortino over-supervised him at Newsome's direction, and also made racial slurs and jokes. Morales alleged Kenneth Hess and Husband reduced his promotional ranking.
Piniero testified to additional complaints made to management. He stated that plaintiffs complained about Newsome not reporting to the West Paterson office and working out of the Howell office. This forced his subordinates to take on greater managerial roles without receiving credit for their work in terms of promotional opportunities, and in some instances his absence resulted in negligent supervision. Piniero further stated they complained about Fortino's poor managerial skills, including his inability to deal with personal crises involving his pet cats, which compromised investigations and officers' safety. Soulias corroborated these incidents involving Fortino at his deposition.
DeHope testified in his deposition that Kenneth Hess responded to plaintiffs' complaints by traveling to West Paterson to address the problems with Fortino. Hess removed Fortino from the West Paterson office and placed him in an administrative position.
B. EEO Complaints
In 1998, Soulias was working as a detective in the organized crime unit. That year, Fortino, as Soulias's supervisor, insinuated Soulias's wife was one of the prostitutes he frequented and suggested he may have contracted gonorrhea from her while he was a marine stationed in the Philippines. Soulias said nothing immediately, as he was new to the unit; however, he filed an EEO complaint about the incident approximately one year later. Piniero recalled speaking to an EEO investigator about the incident, and that Fortino was disciplined for his misconduct.
In 1999, Fortino had been transferred from the unit and replaced by defendant Toranto. That year, Soulias, Toranto, and others from the organized crime bureau went for lunch at a Chinese restaurant and Toranto made a derogatory comment, suggesting their waitress was Soulias's wife. Soulias did not file an EEO complaint about this incident until 2000, when he, Piniero and DeHope filed a joint complaint. Soulias waited to file a complaint because Toranto's father was a lieutenant colonel in the NJSP, and he perceived Toranto as "the chosen one," who had been "on the fast track his whole career."
On January 25, 2000, Piniero, DeHope, and Soulias met with Marshall Brown, an investigator from the NJSP's EEO/Affirmative Action unit. The three alleged a hostile work environment existed in the West Paterson office based on management's abuse of power, violation of standard operating procedures, and favoritism and nepotism in assignments, rankings, promotions, and overtime. In particular, Soulias complained of the following actions: Fortino's falsification of documents with respect to an incident with the Irvington police; Newsome's falsification of documents relating to an incident in Paramus when members of the Division of Criminal Justice assaulted suspects; Newsome's concealment that two troopers misused government property by receiving complimentary airline tickets in their own names that should have been remitted to the NJSP; and Toranto's disregard of a deputy attorney general's addendum to a search warrant request.
Piniero recalled complaining about many things, including but not limited to Newsome's failure to report to West Paterson, and Fortino's preoccupation with his personal crises in the workplace.
Brown responded that while these allegations were "important," they did not appear to violate the NJSP's policies against discrimination and harassment. He therefore recommended that plaintiffs pursue their complaints with internal affairs or the Attorney General's office. Thereafter, on February 8, 2000, Morales filed an EEO complaint with the NJSP against Newsome, Toranto, and Fortino, alleging disparate treatment based on race, repeating some of the allegations previously discussed (e.g., loss of vacation time, assignment of lesser vehicles, over-supervision, less substantial assignments, surveillance during sick leave, poor performance appraisal, speaking to him in demeaning manner).
C. February 18, 2000 Complaint to Attorney General's Office and Outcome of the Investigation
On February 18, 2000, plaintiffs brought their complaints to the Attorney General's office, meeting with defendants Deputy Attorneys General Debra Stone, Gail Mazuco, and Anthony Cowell. The day before the meeting, Toranto yelled at Morales for taking time to attend the meeting. Also, Kenneth Hess called Stone, "distressed" that plaintiffs were meeting with her. During the meeting, Edgar Hess called Stone to advise her that some of the plaintiffs were absent without leave from their posts. He further stated that there were mechanisms for dealing with grievances within the NJSP, and it was a discipline problem if troopers "could just wander off post without any consequences." Stone responded to both Kenneth Hess and Edgar Hess that the troopers were permitted to meet with the Attorney General's office and could not be punished for it.
At the meeting, plaintiffs complained about many things, including their dissatisfaction with the way their units were run. Some alleged criminal conduct. Some complained of nepotism and cronyism in the promotional process and assignments. According to DeHope, plaintiffs complained about "pretty much, everything" involved in this litigation.
Plaintiffs also expressed concern about retaliation for making their complaints. According to Soulias, the Deputy Attorneys General assured them they would be protected from retaliation. In fact, during the meeting Stone directed Cowell to phone Dunbar, the Superintendent at the time. Stone told plaintiffs to report any retaliation. She never received any such complaints.
After the meeting, the internal affairs/management issues were sent to NJSP legal affairs, and the criminal issues were sent to attorney Tommy Goan to investigate. Speaking with Goan later, Stone was told that the criminal allegations were not as they were portrayed at the meeting. He considered the allegations as internal affairs matters, and the allegations were returned to NJSP to address.
The record also contains NJSP internal affairs complaint forms relating to plaintiffs' complaints dated September 2000, with Piniero, Primo, Vecharelli, DeHope, Soulias and Morales listed as the complainants, and the respondents identified as Madden, Edgar Hess, Kenneth Hess, Newsome, Toranto and Husband. Although internal affairs investigated the complaints, Morales claimed ignorance of any internal investigation. Soulias, however, recalled meeting with internal affairs, as did Piniero. A final report was not issued until August 15, 2002.
As a result of the report, Newsome was charged with: causing material alteration of official reports to conceal a January 22, 1999 physical altercation between an NJSP detective and members of the Irvington police, to conceal a December 18, 1998 assault committed by Division of Criminal Justice personnel upon an arrested person, and to cover up his subordinates' misuse, or attempted misuse, of government property/travel expenses for personal gain. He was also charged with culpable inefficiency in the performance of his duties as supervisor by reporting to Howell station, which was closer to his home, rather than West Paterson; culpable inefficiency and conduct unbecoming (causing the appearance of impropriety) by selecting Fortino to be the north zone supervisor, knowing that Fortino's wife worked as a bookkeeper in a suspected mob-connected company; and retaliation against DeHope for complaining to Edgar Hess by altering the wording of an evaluation performed by Primo.
The charges of material alteration of official reports and related culpable inefficiency were substantiated. However, Newsome was exonerated of culpable inefficiency for failing to report to the West Paterson office. Insufficient evidence was found for the charge of conduct unbecoming/appearance of impropriety in the selection of Fortino as supervisor.
Madden was charged with culpable inefficiency in the performance of his duties for creating a hostile work environment after plaintiffs complained to him about their supervisors. In particular, plaintiffs alleged Madden ordered Toranto to closely monitor their daily activities. Insufficient evidence was found to support these charges.
Edgar Hess was charged with improper supervision and failure to notify the Division that Newsome had materially altered official reports, and that he knew about Newsome's failure to adhere to standard operating procedures in altering DeHope's performance appraisal but failed to take proper supervisory action to address the issue. Hess was exonerated of the improper supervision charge relating to DeHope's evaluation, and insufficient evidence was found to support the other allegations.
Kenneth Hess was charged with retaliation and creation of a hostile work environment, culpable inefficiency in the performance of work duties, and improper supervision. In particular, plaintiffs alleged that Hess was culpably inefficient for promoting Fortino to the position of unit leader of the organized crime unit. Soulias alleged that Hess retaliated against him for his February 2000 complaint to the Attorney General's office by causing Husband to lower his promotional ranking within the bureau, and by causing Husband to compromise Soulias's personal safety by assigning him to a ride-along program even though he was working in an undercover capacity.
The charge of retaliation in the reduction of Soulias's ranking was substantiated. However, Hess was exonerated of endangering Soulias's safety with respect to the ride-along program, and insufficient evidence was found to support the charge relating to Fortino's promotion.
Husband was charged with culpable inefficiency and retaliation and creation of a hostile work environment for allegedly retaliating against Soulias by lowering his ranking and assigning him to a ride-along program. Moreover, Husband was accused of retaliating against Piniero, DeHope, Soulias, and Morales by conducting an unauthorized internal investigation of them for allegedly taping conversations with supervisors.
Husband was exonerated of endangering Soulias's safety with respect to the ride-along program, and insufficient evidence was found that he retaliated against Soulias by reducing his ranking. However, the charge of unauthorized investigation was substantiated.
D. Sick Leave and Superior Court Complaints
In June 2000, four months after their meeting with staff of the Attorney General's office, plaintiffs in the present litigation filed a complaint against the NJSP alleging violations of CEPA, the Law Against Discrimination (LAD), and the State constitution (MER-L-2122-00).
Piniero also filed a complaint in November 1999.
In or about September 2000, Piniero, DeHope, Soulias, and Morales went out on sick leave. Defendants Kilmurray and Izzi were employed by the NJSP's medical unit, and they communicated with these plaintiffs while they were out on leave regarding their health status, NJSP policies, and the need for exams and tests.
While they were on sick leave, plaintiffs initiated further Superior Court litigation. Specifically, in March 2001, Soulias filed a complaint against a number of defendants (including the NJSP, Dunbar, and Fortino), alleging harassment and discrimination in his employment on account of his wife's race (MER-L-800-01). In January 2002, Morales filed a complaint against a number of defendants (including the NJSP, Dunbar, Butt, Newsome, Toranto, and Fortino), alleging harassment and discrimination on account of his race and ethnicity (MER-L-221-02). Finally, in February 2002, plaintiffs filed the present litigation.
Also, on April 10, 2001, while on leave, Soulias testified before the New Jersey Senate Judiciary Committee about misconduct in the NJSP, specifically the investigations section, including the allegations of falsification of reports. He also alleged retaliation for having brought his complaints to the Attorney General's office, requested removal of Dunbar as Superintendent, and creation of an independent monitor for the NJSP. His testimony was not solicited by the Legislature. Rather, he volunteered the testimony upon the advice of his counsel.
III. Post-Complaint Work Histories
Plaintiffs allege they experienced retaliation after their complaints in the late-1990s and 2000. Their experiences are divergent; therefore, we discuss them separately in the three sub-parts that follow.
A. DeHope's Post-Complaint Work History
DeHope claimed that in March 2000, while he was working out at the Totowa barracks, somebody threw his gym bag to the floor and smashed everything inside. He suspected Kenny McCarthy did it, because he was the only other person present at the time, and he filed an EEO complaint. The complaint was never resolved. In April 2000, DeHope was promoted to detective sergeant.
In May 2000, Husband accused DeHope and others of taping supervisors' phone conversations. Husband attempted to open an internal affairs investigation but was rebuffed. DeHope further alleged that Toranto began asking secretaries at West Paterson if they had been harassed by any of the plaintiffs.
DeHope also claimed that Mazuco authorized the NJSP to strip plaintiffs of their police powers and weapons while on sick leave. The record reflects, however, this direction was consistent with NJSP policy and applicable to all troopers on sick leave.
In April 2002, while DeHope was out on sick leave, he requested a transfer to internal affairs. The transfer was denied by Modarelli. DeHope believed then-Superintendent Santiago participated in the denial. He claimed the denial constituted retaliation for his complaints.
DeHope wanted to return to work in April or May 2002, but claimed that Toranto and Izzi delayed his return to work by failing to return his calls and demanding paperwork and medical evaluations. He claimed Izzi conspired to arrange his medical appointments for inconvenient times.
In August 2002, DeHope returned to work. He believed he would be returning to the organized crime unit. His doctors recommended return to work in an investigative assignment. He was assigned, however, to road duty.
While on road duty, DeHope alleged he experienced a small decrease in pay due to the loss of his detective rating. He also lost use of an undercover vehicle, and possibly overtime. For a short period of time after his return to work, he was without a weapon. The record suggests the failure to arm him was an administrative mistake. Nevertheless, DeHope believed it was part of the conspiracy against him.
DeHope believed Santiago was solely responsible for removing his gun, and his transfer. In support of this claim, he noted multiple statements to him from Izzi and from members of the organized crime unit that his transfer order came from the Superintendent's office. Kenneth Hess and Santiago both testified, however, that as a matter of course the NJSP Superintendent or his designee signs all transfer orders; yet, the Superintendent does not have intimate knowledge regarding each and every transfer.
DeHope never met Santiago. Nevertheless, he claimed the transfer was retaliation for his association with other officers who had investigated Santiago before his appointment to Superintendent. In this regard, Kenneth Hess testified that once Santiago became Superintendent, he requested all reports concerning investigations conducted about him. The information Hess disclosed to Santiago included reports prepared by Primo, Vecharelli, and David Kushnir (a plaintiff in another case).
Certain gubernatorial appointees, such as cabinet officers and judges, are subject to a back-ground investigation conducted by the NJSP. Known as a four-way, plaintiffs' attempt to obtain this report in this litigation is discussed in Piniero v. New Jersey State Police, 404 N.J. Super. 194 (App. Div. 2008).
The Attorney General's office investigated Santiago's request to Kenneth Hess and determined that it constituted "a gross exercise of bad judgment," which "did a disservice to the New Jersey State Police, threatened the integrity of the State Police investigative process, and lessened public confidence in the abilities of the State Police."
Around the time of DeHope's transfer to road duty, Santiago established a "model troop" program, pursuant to which many troopers who held supervisory titles, but were not actually supervising people, were reassigned to road duty ostensibly to provide better supervision of road troopers and assist compliance with the consent order relating to racial profiling.However, DeHope denied that his transfer was part of the model troop program.
During his tenure, Santiago transferred many troopers from plain clothes to uniform positions, and for the most part the transfers were "not received well[.]"
DeHope remained a road trooper for only six months, between August 2002 and February 2003. In February 2003, he was transferred to the counterterrorism unit, north squad. In April 2004, he was transferred and designated the data manager for the intelligence section, although he was detached to the street gang unit, to which he was officially reassigned in August 2004.
In December 2004, he was promoted to detective sergeant first class. In October 2005, he was transferred and designated the administrative sergeant for the organized crime control bureau central. In April 2006, he was transferred to the drug trafficking central unit. Finally, in February or March 2009, he was transferred to the applicant investigation unit. As of March 2009, DeHope remained employed by the NJSP holding the rank of detective sergeant first class in the applicant investigation unit.
B. Soulias's Post-Complaint Work History
As previously discussed, Kenneth Hess removed Fortino from the West Paterson office due to the complaints made about him. Toranto replaced him. Soulias contended that Toranto's replacement of Fortino constituted an act of retaliation by Madden because there were also pending complaints about Toranto.
Soulias also contended that in early 2000, Husband and Kenneth Hess retaliated against him by significantly dropping his promotional ranking. This claim was investigated internally; it was substantiated against Kenneth Hess, but insufficient evidence was found to support the claim against Husband.
Soulias further contended that Kenneth Hess retaliated against him in May 2000 by assigning him to work a wiretap with individuals at the Division of Criminal Justice about whom he had complained for assaulting a suspect. He attempted to file an internal affairs complaint against Kenneth Hess for the wiretap assignment. Defendant William Meddis would not permit him to file the complaint because it would interfere with Hess's promotion to captain.
Soulias contended that defendants Stone, Cowell, and Mazuco retaliated against him by not investigating his complaints and by not providing him with security against retaliation after the February 18, 2000 meeting. Similarly, he contended defendant Modarelli promised to investigate plaintiffs' complaints and protect them from retaliation, but "[h]e did none of that." Soulias contended defendant Robert Kilmurray retaliated by trying to have him retired from the NJSP while he was on leave, Izzi retaliated by interfering with his return to work, and Carl Leisinger retaliated by interfering with Soulias receiving a new firearms identification card.
Soulias returned to work in March 2002. He was assigned to the investigations section of the official corruption unit contrary to his request. However, Izzi told him that the assignment had been issued by the Superintendent's office and he could request a transfer in the future.
Soulias believed the assignment was retaliation by Izzi and Santiago for his complaints, the litigation against the NJSP, and his association with troopers who had investigated Santiago. However, he acknowledged that Santiago only became the Superintendent after he returned to work.
Santiago was Superintendent between March 2002 and October 2002. Madden was the acting Superintendent for a period of about four months after Santiago left office.
Throughout 2002, Soulias spoke with Kenneth Hess and Lieutenant Richard Loufick about a transfer, but they informed him he would remain in his assignment. In August 2002, Soulias requested an assignment to the office of professional standards. However, his request was denied, and he filed a discrimination complaint with the Department of Personnel. He claimed that the failure to move him constituted retaliation by Santiago while he was Superintendent, followed by Madden after he became acting Superintendent. However, he did not know whether any of his transfer requests ever reached Santiago's desk, and he had no idea whether Santiago specifically denied his request for a transfer.
After Santiago resigned, the official corruption unit was absorbed by the Attorney General's office, and all personnel were transferred with the exception of Soulias and another detective, Thomas Suscewicz. At that time, Soulias was transferred to the missing persons unit. Soulias alleged that the transfer to missing persons constituted retaliation for his various complaints.
Some time after the transfer, Kenneth Hess informed Soulias that, according to information Hess had received from Madden, Soulias had been transferred from the official corruption unit because Peter Harvey, the then-Attorney General, and Edgar Hess, did not want him in the official corruption unit within the Attorney General's office because he had filed a complaint against the NJSP. In response, in August or September 2003, Soulias filed an EEO complaint. He received a letter from a deputy attorney general finding no retaliation because he had been transferred to missing persons and promoted a year later.
At missing persons, Soulias recalled an incident of rude treatment by Toranto. Specifically, Toranto hit Soulias with his shoulder as they passed each other in a hallway and just kept walking.
In the summer of 2003, Soulias's ranking for promotion was lower than he felt appropriate, and he requested a meeting with Kenneth Hess, who was unable to explain Soulias's ranking. Soulias informed Hess he believed it was a continuing course of retaliation for his complaints. After the meeting, Soulias's ranking did not change. He admitted, however, that the promotion available at the time went to the most qualified person, and he did not know whether anyone he considered less experienced than himself was promoted before him. In September 2003, Soulias was promoted to the rank of detective sergeant.
A few months later, at a management training in December 2003, Kilmurray allegedly made an announcement that he had "to be careful in what [he said] and how [he said] it because there's a trooper in this room who is suing [him]." Kilmurray criticized the Attorney General's office for settling suits rather than taking them to trial because the suits did not have merit. The next morning Soulias contacted EEO and filed a complaint against Kilmurray. By February 23, 2004, the date of his deposition, the complaint had not been resolved.
In April 2004, Soulias transferred at his own request from missing persons to the auto unit. In 2005, he was not ranked eligible for promotion. The individual responsible for the ranking was Captain Richard Schober. Soulias met with Schober, who suggested the ranking was appropriate based upon the factors he had to consider. Soulias believed it was retaliation for his various complaints.
Soulias then met with Major Frank Rogers, who had no knowledge of the basis for Soulias's ranking. Rogers indicated he would review all relevant information and evaluate the situation. Soulias never discussed the issue with Rogers again. However, in December 2005 he was promoted to detective sergeant first class. As of May 2009, he remained employed by the NJSP at the rank of detective sergeant first class assigned to the auto unit and supervising two squads, the auto theft squad and the identity theft document fraud squad.
C. Morales's Post-Complaint Work History
In May or June 2000, Husband and Toranto initiated an internal investigation when Morales missed a ride-along assignment over Memorial Day weekend. Morales claimed the investigation was retaliatory. In assessing the various counter-charges made with respect to this incident, the NJSP concluded that Morales had erred by failing to report to the ride-along assignment without seeking advice from his immediate supervisor, but the internal complaint initiated by Toranto was retaliatory towards Morales. Notably, the investigator remarked that Toranto "was fully aware of the previous complaint against him by MORALES and other members of the [north organized crime bureau (NOCB)]"; however "T[O]RANTO refused to recuse himself in this matter as suggested by Lt. CAMERON." Moreover, the investigator noted Toranto's "disparaging remarks" regarding Morales, which "clearly show[ed] his distain for MORALES as well as other members of the NOCB who filed complaints."
Morales also claimed retaliation during his sick leave by Kilmurray and Izzi. Specifically, Morales claimed that Kilmurray harassed him with questions about when he would return to work, and made fun of his name, heritage, and race by knowingly and intentionally referring to him as "Omar" rather than "Oswald." As a result, he filed a complaint against Kilmurray with internal affairs. Morales claimed Izzi falsely accused him of being a malingerer.
Morales also claimed they met with Modarelli while he and the others were on sick leave. Modarelli promised to transfer them to units where they would be safe from retaliation. However "[t]ime went on and it just never materialized."
Morales returned to work from medical leave in September 2002. He retained the rank of detective, but he was transferred to road duty against the advice from his psychologist. He had not been assigned to road duty since the mid-1980s.
Morales contended the transfer was retaliatory, and Santiago was responsible. He believed Santiago signed his transfer order and was directly involved in the decision to transfer him. He was aware of the "model troop" program initiated by Santiago. He did not believe his transfer was a part of that program because he thought the program had not been implemented in "Troop B," to which he was assigned. Rather, he believed Santiago retaliated against him because he was associated with Primo, Vecharelli, and David Kushnir, who had discovered during the pre-appointment investigation information about Santiago's association with people involved in gambling and organized crime.
Morales was not personally involved in the pre-appointment investigation of Santiago. Nevertheless, according to Morales, Santiago "disbanded [the] whole group," meaning the NOCB. Morales admitted that other troopers who were more directly involved in investigating Santiago were not moved back to the road.
Kenneth Hess testified that after Santiago became Superintendent more than thirty people from his unit were reassigned. This was "around the same time everyone started getting orders." He was never given any reason for the transfers other than the needs of the organization. When Santiago left, people returned to investigative positions.
Morales also held Santiago responsible for sending him to Hope station and for the hostile work environment he experienced there. Hope station was not the closest station to his home in Sussex county. While stationed at Hope, someone entered his locker, and his lieutenant informed him he would not be promoted over any of the road troopers already assigned to Troop B. He believed that Santiago, as Superintendent, was responsible for anything that happened in the NJSP.
Morales stated that the transfer had the ability to reduce his pay because he would lose overtime opportunities. He also lost promotional opportunities by being moved from a unit where he was senior, and he lost the undercover car he used while in investigations.
Morales filed an internal EEO complaint about the hostile work environment he experienced at Hope station. In January 2003, he was transferred from road duty to special investigations working in the Meadowlands.
He did not claim that the Meadowlands assignment was retaliatory because he had requested a transfer from road duty. However, while he was at the Meadowlands, four or five disciplinary charges were filed against him in the course of approximately one year. All were unsubstantiated except for one initiated by Fortino, who at the time was retired from the NJSP and working in a civilian capacity at the Meadowlands. Although the charge was rejected by an administrative law judge (ALJ), the NJSP Superintendent rejected the ALJ's ruling and imposed a six-month suspension. Morales considered all these accusations false and retaliatory. His supervisors at the Meadowlands knew about his complaints against the NJSP, and the supervisor of all guards at the Meadowlands, Pat Aromeni, was a retired NJSP officer who was "best of friends" with Fortino. He complained about the false accusations. However, the NJSP found his EEO complaints unsubstantiated.
In the end, he felt compelled to retire because he believed he would be fired if he did not leave on his own. He retired from the NJSP in 2006, at which time he held the rank of detective one, assigned to special investigations at the Meadowlands.
IV.
The NJSP's Promotion and Transfer Processes, In General
As discussed in the previous sections, plaintiffs complained about many operational practices and events, including the NJSP's promotion and transfer processes. With respect to these issues, Santiago testified that the NJSP, a para-military unit, valued conformity. It rewarded those who did not rock the boat, and it did not allow mavericks to advance. Moreover, there was no uniform system for promotion or assignments at the NJSP, which made the system ripe for abuse.
In Santiago's experience, promotional opportunities at the NJSP were manipulated "like a chess game." For example, he described a practice known as "parachuting," whereby an officer would be transferred to a unit where there was going to be a promotional opportunity in the near future. After the officer had been promoted, he or she would be "parachuted" to the area from which he or she came. Also, there was a rule that nobody with an open internal affairs investigation could be promoted, so the internal affairs process was open to abuse in order to prevent people from being promoted.
Given the manipulation of assignments and promotions, it would not have surprised Santiago to learn that a trooper had experienced retaliation based upon race "or whatever"; you would "have to be stupid not to believe that was[] going on." However, he did not believe the NJSP, as an organization, was engaged in that behavior. The organization simply created the opportunities for such behavior.
Kenneth Hess testified similarly. He confirmed there were no set standards for transfers at the NJSP, and the ranking system for promotions was completely subjective and open to abuse. He further testified that sometimes transfers could be punitive. For example, a trooper could be assigned on short notice to a location far from his or her home, or be reassigned from a specialist position to general road patrol duty.
Transfers could negatively affect a trooper's promotional opportunities, if the trooper was transferred out of an area where he or she had experience. Alternatively, if someone wanted to favor a trooper for advancement, the trooper could be transferred to an "acting" title, without using the promotional criteria, and such a transfer would give the trooper an advantage for promotion.
V.
Defendants filed a motion for summary judgment addressing the claims filed by DeHope, Soulias and Morales. The motion judge held that each plaintiff established he had engaged in whistleblowing activity. On the other hand, the judge held that each plaintiff's claim failed because he did not prove retaliation as defined by CEPA or establish a causal connection between the whistleblowing activity and the alleged retaliation.
We apply the same standard in our review of an order granting summary judgment as the motion judge. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We must determine whether the competent evidential materials, viewed in the light most favorable to plaintiffs, are sufficient to permit a rational factfinder to resolve the disputed issues of fact in their favor. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). If there is a genuine issue as to any material fact, or credibility issues as to a material fact, summary judgment should be denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540. On the other hand, if the evidence is "'so one-sided that one party must prevail as a matter of law,'" then summary judgment should be granted. Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Applying this standard, we affirm the order granting defendants' motion for summary judgment and dismissing the CEPA claims of DeHope and Soulias, but reverse the order granting summary judgment and dismissing the CEPA claims of Morales.
CEPA is a civil rights statute, the purpose of which 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 Twp. Bd. of Educ, 138 N.J. 405, 431 (1994). Accord Donelson v. DuPont Chambers Works, 206 N.J. 243, 255-56 (2011). As remedial legislation, it should be construed liberally. Abbamont, supra, 138 N.J. at 431.
CEPA, N.J.S.A. 34:19-3, prohibits employers from taking "any retaliatory action" against an employee who:
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 . . . ; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
In their brief, plaintiffs cite only N.J.S.A. 34:19-3(a)(1) and N.J.S.A. 34:19-3(c)(1), (2), and (3). However, since we believe plaintiffs' complaints could also fall under N.J.S.A. 34:19-3(a)(2) and N.J.S.A. 34:19-3(b), we provide the text of those sections as well.
The final category of claims, under N.J.S.A. 34:19-3(c)(3), "evidences a legislative recognition that certain forms of conduct might be harmful to the public although technically not a violation of a specific statute or regulation." Estate of Roach v. TRW, Inc., 164 N.J. 598, 611 (2000).
To establish a prima facie claim under CEPA, a plaintiff must prove: (1) he or she held an objectively reasonably belief that the employer's conduct violated a law, regulation, or public policy; (2) he or she disclosed or threatened to disclose the conduct, or objected to the conduct or refused to participate in it; (3) he or she suffered retaliatory action; and (4) there exists a causal connection between the whistleblowing activity and the retaliation. Dzwonar v. McDevitt, 177 N.J. 451, 462 (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). If the defendant advances a legitimate non-retaliatory reason for the alleged retaliatory conduct, to survive summary judgment, the plaintiff must raise a genuine issue of material fact that the employer's explanation is pretextual. Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290-93 (App. Div. 2001); Klein, supra, 377 N.J. Super. at 38-39.
In terms of the alleged whistleblowing activity, a CEPA plaintiff is not obligated to prove that defendants actually violated a law, regulation, or clear mandate of public policy. Rather, the plaintiff must prove that he or she reasonably believed that to be the case. Dzwonar, supra, 177 N.J. at 462-64.
[T]he objecting employee must have an objectively reasonable belief, at the time of objection or refusal to participate in the employer's offensive activity, that such activity is either illegal, fraudulent or harmful to the public health, safety or welfare, and that there is a substantial likelihood that the questioned activity is incompatible with a constitutional, statutory or regulatory provision, code of ethics, or other recognized source of public policy. Specific knowledge of the precise source of public policy is not required.
[Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193 (1998).]
"The goal of CEPA . . . is 'not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.'" Dzwonar, supra, 177 N.J. at 464 (quoting Mehlman, supra, 153 N.J. at 193-94).
Nevertheless, "the determination whether the plaintiff adequately has established the existence of a clear mandate of public policy is an issue of law. Its resolution often will implicate a value judgment that must be made by the court, and not by the jury." Mehlman, supra, 153 N.J. at 187.
[Courts] look generally to the federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics to inform our determination whether specific corrupt, illegal, fraudulent or harmful activity violates a clear mandate of public policy, but those sources are not necessarily exclusive. A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee.
[Id. at 188.]
Thus, in assessing the first element of a CEPA claim, "the [motion judge] must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct. The [motion judge] can and should enter judgment for a defendant when no such law or policy is forthcoming." Dzwonar, supra, 177 N.J. at 463.
As to the issue of retaliation, CEPA defines "retaliatory action" 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). The final clause of the definition allows for employer actions that affect the terms and conditions of employment but fall short of discharge, suspension, or demotion, to constitute an adverse employment action. Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005) (citing Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003)).
Moreover, retaliation "need not be a single discrete action." Green v. Jersey City Bd. of Educ, 177 N.J. 434, 448 (2003). Rather, it "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." Ibid. Accord Beasley v. Passaic Cnty., 37 7 N.J. Super. 585, 609 (App. Div. 2005) ("A pattern of conduct by an employer that adversely affects an employee's terms and conditions of employment can qualify as retaliation under CEPA.").
Nevertheless, for an employer action to be adverse, it must be completed, and it must have had a significantly negative effect on the employee's terms and conditions of employment. Beasley, supra, 377 N.J. Super. at 606-08. "[R]escinded employer action that makes plaintiff completely whole and remedies a prior decision cannot constitute an adverse employment action." Id. at 607. Moreover, not everything that makes an employee unhappy constitutes an adverse employment action. Nardello, supra, 377 N.J. Super. at 434 (citing Cokus, supra, 362 N.J. Super. at 378). Incidents that cause a "bruised ego or injured pride," Beasley, supra, 377 N.J. Super. at 607, Klein, supra, 37 7 N.J. Super. at 46, or that make an employee's job "mildly unpleasant" but do not have a substantial impact on the terms and conditions of employment, Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002), appeal dismissed, 177 N.J. 217 (2003), are insufficient to prove actionable retaliation.
In considering whether there has been an adverse employment action, relevant factors include "the employee's loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees," as well as "assignment to different or less desirable tasks." Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002) (considering claim of retaliation under the LAD). Accord Donelson, supra, 206 N.J. at 258 (retaliatory acts consisting of "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"); Maimone v. City of Atl. City, 188 N.J. 221, 236-37 (2006) (transfer from detective position to patrol duty constituted adverse employment action under CEPA; although it resulted in no reduction in rank, it resulted in lower compensation and lost benefits, including lost overtime possibilities and lost undercover car); Nardello, supra, 377 N.J. Super. at 435-36 (denial of firearms instructor training, coerced resignation from SWAT team, denial of work on crime prevention programs, removal from detective bureau with supervisory authority taken away, and assignment of demeaning jobs not commensurate with the plaintiff's rank as lieutenant). See also Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005) (transfer to administrative duty).
Finally, the required causal connection between the whistleblowing and the retaliation "can be satisfied by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action," including temporal proximity between the protected conduct and the adverse employment action. Maimone, supra, 188 N.J. at 237; Estate of Roach, supra, 164 N.J. at 612. See also Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 612 (D.N.J. 2003) (in determining whether plaintiff has produced prima facie evidence of causation, typical focus is on "timing and evidence of ongoing antagonism," but all circumstances should be considered). However, "[t]emporal proximity, standing alone, is insufficient to establish causation." Hancock, supra, 347 N.J. Super. at 361.
A. Whistleblowing
The parties dispute whether plaintiffs held an objectively reasonable belief that the activities about which they complained were either illegal, fraudulent, or harmful to the public health, safety, or welfare. Based on our review of the various complaints and the law, we conclude that at least some of plaintiffs' complaints were sufficient to satisfy the first two elements of their CEPA claims. Specifically, both Soulias and Morales made claims of employment discrimination based upon race and ethnicity in violation of the LAD. These complaints clearly constitute whistleblowing under N.J.S.A. 34:19-3(a)(1) and (c)(1). Moreover, in the various complaints filed by each over the years, plaintiffs asserted violations of federal and state law. These complaints constitute whistleblowing under N.J.S.A. 34:19-3(a)(1).
DeHope alleges he complained about racial profiling, and thus violations of suspects' constitutional rights. However, those complaints were made in the late 1980s and early 1990s, while he was working in the K-9 unit. The record does not establish he made such complaints in the late 1990s and early 2000s, which is the time frame at issue in the present litigation.
Additionally, plaintiffs complained that their superiors may have covered up illegal activity, including the assault of a State Trooper by an Irvington police officer, the abuse of criminal suspects by members of the Division of Criminal Justice, and the misappropriation of public funds by personal use of flight/travel vouchers by State Troopers. They also complained about Toranto's willful disregard of an addendum to a search warrant requested by a deputy attorney general. These are the matters that Stone, Cowell, and Mazuco referred for criminal investigation after their February 18, 2000 meeting with plaintiffs. Because deputy attorneys general referred these complaints for criminal investigation, it was objectively reasonable for plaintiffs to believe their complaints concerned potential violations of criminal law. Therefore, these complaints also constitute whistleblowing activity under N.J.S.A. 34:19-3(a)(1) and (2), and (c)(1) and (2).
Other complaints made by plaintiffs are less clear. For example, they complained about nepotism and cronyism within the NJSP. Certainly, nepotism and cronyism should not be encouraged, as they potentially violate the public policy that state employees be selected and advanced "on the basis of their relative knowledge, skills and abilities." N.J.S.A. 11A:1-2(a). See also N.J.S.A. 52:13D-23(e)(3) (codes of ethics for state employees should provide that no employee "should use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others"). But see Bumbaca v. Twp. of Edison, 373 N.J. Super. 239, 246-50, 253 (App. Div. 2004) (holding that LAD does not prohibit nepotism), certif. denied, 182 N.J. 630 (2005).
However, it is not clear that this public policy concerns "the public health, safety or welfare or protection of the environment," such that plaintiffs' complaint would constitute whistleblowing activity under N.J.S.A. 34:19-3(c)(3). Indeed, plaintiffs made no allegation that these practices posed any threat to the public health, safety, or welfare. Rather, they complain about these policies only to the extent they negatively affected their own opportunities for advancement within the NJSP. Thus, it is questionable whether plaintiffs' complaints about these activities constituted whistleblowing activity protected under CEPA. See, e.g., Maw v. Advanced Clinical Commc'ns, 179 N.J. 439, 445 (2004) ("the complained of activity must have public ramifications, and . . . the dispute between employer and employee must be more than a private disagreement").
Finally, some of plaintiffs' complaints clearly did not constitute whistleblowing, namely: their complaints about the NJSP's mismanagement of the organized crime bureau (i.e., the selection of Fortino as a manager, and the failure of certain managers to report to the West Paterson office); and their complaints about violations of internal NJSP protocols regarding the conduct of performance evaluations, the investigation of possible abuses of sick time, the allocation of vacation time, and assignments to ride-along duty. These types of complaints are not protected by CEPA. See, e.g., Estate of Roach, supra, 164 N.J. at 613-14 (CEPA "not intended to spawn litigation concerning the most trivial or benign employee complaints"); Klein, supra, 377 N.J. Super. at 42 ("The whistle-blower legislation is not intended to shield a constant complainer who simply disagrees with the manner in which the [employer] is operating one of its . . . departments, provided the operation is in accordance with lawful and ethical mandates").
In summary, plaintiffs satisfied the first and second elements of their CEPA claims to the extent they complained about discrimination within the NJSP and potential criminal misconduct by certain NJSP officers and members of the Division of Criminal Justice, and to the extent they filed civil actions alleging violations of state and federal law.
B. Retaliation and Causal Connection
In order to properly assess these two prongs of a CEPA cause of action, we need to evaluate the specific acts of retaliation cited by each plaintiff and its causal connection to the complaints.
1. DeHope
The first act of retaliation alleged by DeHope occurred in March 2000, when somebody threw his gym bag to the floor while he was working out. Standing alone, this act would not constitute retaliation as defined by CEPA because it had no effect on the terms and conditions of DeHope's employment. Moreover, the identity of the person who committed the act is unknown, as is any evidence that the person knew of DeHope's complaints. It might constitute retaliation when considered in combination with other harassing acts; however, there is no evidence to establish a causal connection between this event and his complaints, let alone this event and any of the other alleged acts of retaliation.
The next alleged act of retaliation is Husband's attempt to open an internal investigation into DeHope's alleged taping of supervisors' conversations. Husband was found responsible for retaliation. For purposes of CEPA, however, it is significant that the retaliatory act was never completed, since Husband's request to open an investigation was rejected. Therefore, this allegation cannot establish retaliation as defined by CEPA.
Similarly, Toranto's inquiry to secretaries in West Paterson about harassment by DeHope cannot be considered a retaliatory act because no formal investigation was ever conducted and DeHope never suffered any discipline. Removing DeHope's weapons while on sick leave is NJSP policy. There is nothing in the record to suggest that DeHope was treated differently than any other trooper on sick leave. Furthermore, there is no relationship between these acts and DeHope's complaints.
On the other hand, denial of DeHope's April 2002 request for a transfer to internal affairs creates at least some circumstantial evidence of a causal connection. Defendant Modarelli denied this transfer request two months after DeHope filed his civil action naming Modarelli as a defendant. Nevertheless, there is no evidence in the record to even suggest that denial of the transfer request had a significantly adverse effect on the terms and conditions of DeHope's employment. Therefore, the transfer denial cannot be considered a retaliatory act.
DeHope also cited the delay in his return to work due to the necessity of completion of paperwork and medical evaluations. However, there is nothing to suggest that these events had an adverse effect on DeHope's career. Moreover, there is nothing to suggest that DeHope was treated differently than any other NJSP employee returning from an extended sick leave. Therefore, it cannot be considered retaliation under CEPA.
DeHope also alleged his assignment to road duty when he returned from sick leave was an act of retaliation. Coupled with the assignment, he was not immediately issued a gun. The record reveals, however, the failure to issue him a gun was an administrative mistake. Moreover, DeHope did not suffer any reduction in his rank or his compensation. On the other hand, the terms of his employment were significantly altered as he was required to wear a uniform, report to a new location, work different hours, and lose the benefit of a vehicle that he received while working as a detective. Moreover, there was a loss of status in moving from a detective position to a uniformed patrol position, and arguably the job duties were not commensurate with his rank. See, e.g., Maimone, supra, 188 N.J. at 236-37.
Nevertheless, DeHope produced no proof that this assignment was causally connected to his prior complaints. DeHope holds Santiago solely responsible for the transfer. However, Santiago was Superintendent of the NJSP for only six months, and he began his short tenure in March 2002, years after DeHope had made his original complaints. The transfer occurred only one month after plaintiffs initiated the present litigation; however, plaintiffs did not add Santiago as a defendant until February 2003. DeHope has presented no evidence, direct or circumstantial, that at the time of his transfer Santiago had any knowledge of DeHope's prior complaints or this litigation, see id. at 238-39, nor has he presented any reason to believe that Santiago harbored any animus towards him based upon his complaints.
Defendants also maintain that DeHope's transfer was part of the model troop program, which Santiago initiated in order to comply with a consent order relating to racial profiling by road troopers. DeHope denies that claim. However, the record demonstrates that many other troopers were transferred to road duty around the same time as DeHope's transfer.
Perhaps most significantly, DeHope does not contend that Santiago transferred him in retaliation for his whistleblowing, which is the basis for a CEPA claim. Instead, he contends that Santiago transferred him in retaliation for DeHope's coworkers' having uncovered information that was adverse to Santiago's interests during the four-way investigation. See Piniero, supra, 404 N.J. Super. at 200. This contention is based upon pure speculation and is unrelated to DeHope's alleged whistleblowing actions.
DeHope alleges no further acts of retaliation. The record reflects that he was transferred to the counterterrorism unit after six months of road duty. Thereafter, he was transferred several more times. There is no evidence in the record that he was transferred against his will, or that the transfers were to positions not commensurate with his rank.
Viewing DeHope's post-complaint work history in its entirety, rather than complaint-by-complaint, there simply is no basis for concluding that his career has been negatively affected in a significant way as a result of his complaints. Indeed, he was promoted in April 2000 and again in December 2004. To be sure, he suffered some unpleasant events and annoyances, some of which could be tied to his complaints. He did not receive every assignment he wanted. However, these disappointments are not the substance of a CEPA claim.
Summary judgment in favor of defendant DeHope is affirmed.
2. Soulias
Soulias first complains that the assignment of Toranto to replace Fortino in the West Paterson office was an act of retaliation, because Toranto was a subject of plaintiffs' complaints. Toranto made a racially derogatory comment about Soulias's wife. However, there is no evidence that Toranto injured Soulias's career in any way. Thus, the transfer cannot be considered as a retaliatory act under CEPA.
Soulias also cites the drop in his promotional ranking some time in 2000 as a retaliatory act. The NJSP investigated this allegation and it was substantiated against Kenneth Hess. Nevertheless, there is no allegation that Soulias was denied a promotion as a result of this ranking. Thus, Soulias suffered no "adverse consequences" from the ranking and it does not constitute a retaliatory act under CEPA. Klein, supra, 377 N.J. Super. at 46.
Another cited act of retaliation, Kenneth Hess's assignment of Soulias to work on a wiretap with individuals at the Division of Criminal Justice about whom plaintiffs had complained, cannot be considered an act of retaliation. There is no evidence that this action caused any harm to Soulias's career. Similarly, there is no evidence of the measures Stone, Cowell, Mazuco, and Modarelli could have or should have taken to protect Soulias from retaliation.
Kilmurray attempted to have Soulias retired while he was on sick leave. Soulias also alleged Izzi interfered with his return to work, and Leisinger interfered with his receipt of a new firearms identification card. However, Soulias did not retire, he returned to work, and received his firearms identification card. As uncompleted acts, these actions do not constitute retaliatory acts under CEPA. Moreover, there is no evidence that Kilmurray and Izzi treated plaintiffs differently than any other NJSP employee on sick leave.
Soulias was assigned to the official corruption unit, within the investigations section, upon his return to work in March 2002. Soulias contends he should not have been assigned to work in the investigations section alongside managers about whom he had complained. However, there is no evidence that this assignment is connected in any way to Soulias's complaints, or any evidence that this assignment was in any way undesirable, or not commensurate with his rank, or that it had any negative effect on his career. Therefore, the assignment cannot be considered retaliation as defined by CEPA.
Soulias requested, but did not receive, an assignment to the office of professional standards. CEPA is not a guarantee that employees will receive every requested assignment. Not everything that makes an employee unhappy constitutes an adverse employment action. There is no evidence that this assignment denial had any relationship to Soulias's complaints, or that it had any negative effect on Soulias's career in terms of compensation, status, or job responsibilities. Therefore, the denial does not constitute retaliation.
The Attorney General integrated the NJSP's official corruption unit into his office. The integration did not affect most trooper's assignment. Soulias, however, was transferred to the missing persons unit. There is some evidence that the failure to absorb Soulias with other members of his unit was related to his prior complaints. However, there is no evidence that the missing persons unit is an undesirable assignment or had a negative effect on his career. There is no claim that in the missing persons unit Soulias received less compensation, or performed less desirable tasks or tasks not commensurate with his rank. Therefore, it does not constitute retaliation under CEPA.
Soulias also cites Toranto's rudeness, when he bumped Soulias in a hallway, as a retaliatory act. CEPA is not a civility code. It does not prohibit rudeness. See, e.g., Roa v. Roa, 200 N.J. 555, 575 (2010) (analyzing retaliation claim under LAD); Mandel v. UBS/PaineWebber, Inc., 37 3 N.J. Super. 55, 73 (App. Div. 2004) (analyzing harassment claim under LAD), certif. denied, 183 N.J. 213 (2005). There is no allegation that Soulias was physically injured, or that his career was harmed. This act does not constitute retaliation.
In the summer of 2003, Soulias was ranked lower for promotion than he felt appropriate. Soulias admitted at his deposition, however, that this ranking did not negatively affect his career advancement because the person promoted was the most qualified. Moreover, Soulias was promoted shortly thereafter, in September 2003. Therefore, there was no retaliation.
In December 2003, Kilmurray announced at a management meeting that he needed to be careful about what he said because somebody in the room was suing him. Although arguably rude, this comment does not constitute retaliation under CEPA.
In 2005, Soulias was not ranked eligible for promotion. However, there is no evidence that the person responsible for the ranking, Captain Schober, had any knowledge of Soulias's complaints. Moreover, Soulias was promoted again in December 2005.
Viewing Soulias's post-complaint work history in its entirety, none of the allegations, singly or cumulatively, reveal any evidence that his career suffered as a result of his complaints. He was not always ranked the way he felt he should be, he did not receive every assignment he wanted, and he was sometimes treated rudely by some defendants. However, his work assignments were not demeaning or inappropriate for his rank, and he was promoted twice. Accordingly, we affirm the order granting summary judgment to defendants and dismiss his claims.
3. Morales
The first act of retaliation alleged by Morales occurred in May or June 2000, when Husband and Toranto initiated an internal investigation because Morales missed a ride-along assignment. The NJSP concluded that Toranto acted in a retaliatory manner by initiating the investigation, with the investigator explicitly noting Toranto's disdain for plaintiffs as a group and Morales in particular. However, the NJSP also concluded that Morales had erred in failing to report to the ride-along assignment without seeking advice from his immediate supervisor.
"When plaintiffs are afforded a hearing and represented by counsel," they cannot claim that substantiated disciplinary charges constitute unlawful retaliation under CEPA. Beasley, supra, 377 N.J. Super. at 607. Also, "[t]he imposition of a minor sanction is insufficient to constitute a retaliatory action under" CEPA. Klein, supra, 377 N.J. Super. at 46. Thus, although Toranto may have acted with retaliatory motive in initiating the investigation, the investigation does not constitute retaliation under CEPA because the charge against Morales was substantiated.
In a case currently pending before the Supreme Court, Winters v. North Hudson Regional Fire & Rescue, A-45/46/47-10, the Court will consider the following issue: "Where the employer's decision to terminate the employee for misconduct was upheld in administrative proceedings and on appeal, may the employee maintain a claim that he was terminated in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8?"
The next acts of retaliation alleged by Morales included multiple questions posed by Kilmurray about his return to work from a sick leave, referring to him as "Omar" rather than "Oswald," and Izzi accusing him of being a malingerer. Kilmurray's questions about a return to work date, and Izzi's questioning the validity of Morales's illness, occur with sufficient frequency in the work place in the normal course of business to suggest that the inquiries cannot, without more, be considered retaliation for prior complaints. Kilmurray's intentionally calling Morales "Omar" rather than "Oswald" was rude. However, CEPA does not prohibit rudeness.
Morales also alleged Modarelli promised to transfer him to a unit where he would be safe from retaliation. This did not occur. Modarelli's failure to act, however, does not constitute an act of retaliation, because Morales never identified a particular transfer request that Modarelli frustrated.
Morales, like DeHope, was also assigned to road duty upon his return to work from an extended sick leave. However, Morales cannot establish a causal connection between the transfer and his prior complaints.
When Morales was transferred to the Hope station, someone broke into his locker, and the lieutenant was rude to him. Morales presented no evidence, however, about the identity of the person who entered his locker or whether that person or the lieutenant had any knowledge of his prior complaints.
Four or five disciplinary charges were filed against Morales within a one-year period while he worked at the Meadowlands. He contends his resignation was compelled by these charges.
Substantiated disciplinary charges do not constitute retaliation under CEPA, Beasley, supra, 377 N.J. Super. at 607, nor does the imposition of minor sanctions, Klein, supra, 377 N.J. Super. at 46. Here, however, Morales testified that all but one of the charges against him were found unsubstantiated. On the substantiated charge, the Superintendent imposed a six-month suspension, which constitutes a major disciplinary action. N.J.A.C. 4A:2-2.2(a).
The record is unclear as to whether the specific individuals who brought the unsubstantiated charges against Morales knew of his prior complaints. However, Morales testified that all of his superiors at the Meadowlands knew about his litigation against the NJSP, and he testified as well that the supervisor of guards at the Meadowlands was a retired NJSP officer with close connections to Fortino, who was also working at the Meadowlands in a civilian capacity. Fortino was the subject of many of Morales's complaints.
Morales has raised a question of fact as to whether the disciplinary charges he suffered at the Meadowlands were retaliation for his prior complaints, particularly to the extent those prior complaints were against Fortino. Four or five disciplinary charges in the course of several months is noteworthy given a record of few charges over the course of twenty years. Moreover, there is a question as to whether this alleged harassment rises to the level of a constructive discharge, i.e., conduct so intolerable that a reasonable person would feel compelled to resign rather than endure it. Donelson, supra, 206 N.J. at 257 (holding that constructive discharge constitutes retaliatory act under CEPA).
We, therefore, reverse dismissal of Morales's CEPA claim to the extent it is based upon his complaints of discrimination, his litigation activities, his complaints about illegal activities, and the alleged retaliation through the series of disciplinary actions filed against him while he was working at the Meadowlands.
Affirmed in part, reversed in part, and remanded for further proceedings on Morales's CEPA claim.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION