On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication November 21, 1997.
Before Judges Long, Stern, and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by
On May 16, 1994, plaintiff, Roger Regan, filed a complaint alleging that defendants, City of New Brunswick and the New Brunswick Police Department, violated the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA), in failing to promote him on July 1, 1993, from the position of sergeant to the position of lieutenant. In support of his CEPA claim, plaintiff alleged that three separate investigations which he conducted in 1991 led to the retaliatory employment decision of July 1, 1993.
In his capacity as a sergeant assigned to the detective bureau, plaintiff investigated three particular incidents: a fight between two police officers, Patrolman James Neal and Patrolman Pablo Ortiz, on June 26, 1991; the shooting death of an unarmed civilian, Shaun Potts, by Sergeant Zane Grey on June 30, 1991; and an investigation as to the improper charge of assault on a police officer and assault on a police canine lodged against a civilian, Lester Voorhees, on July 6, 1991.
On defendants' motion for summary judgment, the motion Judge superficially mentioned the Ortiz incident and then specifically concluded that the allegations surrounding plaintiff's investigation of the Potts incident did not constitute a prima facie claim under CEPA. The motion Judge did not consider the allegations of retaliation referable to the Voorhees incident. We conclude that the failure to do so necessitates a reversal of summary judgment and a remand for reconsideration. Based upon the facts alleged, it was incumbent upon the Judge to assess plaintiff's complaint based upon the totality of the underlying circumstances which preceded defendant's decision not to promote plaintiff on July 1, 1993. Such an analysis would include a review of each investigation referenced by plaintiff in his complaint.
Plaintiff's Employment History
Plaintiff has been employed by defendants as a police officer since November 30, 1973. He ultimately was promoted to sergeant. On October 6, 1990, plaintiff and other sergeants employed by defendants took a two-part Civil Service examination for promotion to the rank of lieutenant. This examination was completed in early 1991. The Civil Service promotional list, published March 14, 1991, reflected the following results: Number one, Brian DeFelice, a non-veteran; *fn1 Number two, Thomas Consalvo, a non-veteran; Number three, Lawrence Evans, a veteran; Number four, plaintiff, a non-veteran; Number five, Zane Grey, a veteran; Number six, Thomas Early, a veteran; Number seven, Joseph Catanes, a non-veteran; Number eight, John Cannon, a non-veteran; and Number nine, Michael Carroll, a non-veteran. Plaintiff contends that once the promotional list was published, he was informed that he and Sergeant Evans would be promoted to lieutenant within the ensuing year.
When this list was published, the Director of the Police Department was William Conway and his administrative aide *fn2 was Robert McCloskey. In 1992, Conway retired, and McCloskey was appointed Acting Director. McCloskey named Sergeant Michael Carroll as his Deputy Director.
By January 29, 1993, Sergeants Defelice, Consalvo, and Evans had been promoted to lieutenant. As a result of those promotions, plaintiff was number one on the promotional list, followed by Sergeants Grey and Early. On January 29, 1993, Early was promoted to lieutenant.
On July 1, 1993, there were three open lieutenant positions. Based on the "Rule of Three," defendants could select three officers from the first five names on the promotional list. Although plaintiff was in the first position followed by Grey, Cantarese, Cannon, and Carroll, defendants promoted Cantarese, Cannon, and Carroll.
Plaintiff's complaint alleges that defendants' decisions not to promote him to lieutenant on July 1, 1993, were pretextual and that he was not promoted in retaliation for his conduct during three separate investigations prior to that date.
CEPA, specifically N.J.S.A. 34:19-2(e), defines "retaliatory action" as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms ...