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Schechter v. New Jersey Department of Law & Public Safety

January 21, 2000

IRWIN SCHECHTER, PLAINTIFF-APPELLANT,
V.
NEW JERSEY DEPARTMENT OF LAW & PUBLIC SAFETY, DIVISION OF GAMING ENFORCEMENT, DEFENDANT-RESPONDENT



Before Judges Skillman, D'Annunzio and Newman.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 30, 1999

On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Plaintiff was employed by the Division of Gaming Enforcement (Division) as Supervising Agent of the Special Investigation Unit. This unit investigates persons who may be subject to exclusion from casinos because of criminal activity or because their presence in a casino would be inimical to the public interest. Upon completion of an investigation, the unit makes recommendations to the Division's legal staff concerning the filing of a petition with the Casino Control Commission (Commission), which may result in a person's name being placed on the exclusion list.

On July 12, 1993, plaintiff was suspended for a period of thirty days and demoted to the position of State Investigator I. The basis for this personnel action was that plaintiff allegedly made threatening comments to the Division's Deputy Director and its Chief Administrator of Investigations after agents under his supervision were transferred to other units within the agency. Although plaintiff's position was unclassified, he was afforded an opportunity for an administrative hearing to contest this disciplinary action. However, plaintiff declined to avail himself of this opportunity and never returned to work. Instead, after running out of vacation and sick leave, he applied for an accidental disability pension. On September 27, 1994, the Board of Trustees of the Public Employees Retirement System denied plaintiff's application but granted him an ordinary disability pension.

Shortly after filing his application for a disability pension, plaintiff brought the present action against the Division, claiming that he had been constructively discharged, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Plaintiff alleged that the Division had suspended and demoted him in retaliation for his objections to both the Division's failure to act on some of his recommendations for placement of persons on the casino exclusion list and the transfer of agents out of his unit.

After completion of discovery, the Division moved for summary judgment. The trial court granted the motion, concluding that plaintiff had failed to identify any statute, regulation or other clear mandate of public policy that the Division could be found to have violated. The court also concluded that the record did not contain any evidence from which a trier of fact could reasonably find a "causal nexus" between plaintiff's objections to the Division's policies and his subsequent suspension and demotion.

Plaintiff appeals. We conclude that the trial court properly granted summary judgment and therefore affirm the dismissal of plaintiff's complaint.

Plaintiff's CEPA claim is based on N.J.S.A. 34:19-3a, c(1) and c(3), which provide that:

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 that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . .; [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 . . .; [or] . . . . (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare.

The threshold question in a CEPA case brought under these sections is whether plaintiff has identified either "a law, or a rule or regulation promulgated pursuant to law" N.J.S.A. 34:19-3a, 3c(1), or "a clear mandate of public policy concerning the public health, safety or welfare," N.J.S.A. 34:19-3c(3), which the employer has allegedly violated. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187-88 (1998); MacDougall v. Weichert, 144 N.J. 380, 391-92 (1996); Regan v. City of New Brunswick, 305 N.J. Super. 342, 352-53 (App. Div. 1997). Therefore, to determine whether a plaintiff has presented a viable CEPA claim, a trial court "must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true." Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied, 138 N.J. 267 (1994). The determination whether a plaintiff has made this threshold showing is a question of law which the court must decide before submitting a CEPA claim to a jury. Mehlman, supra, 153 N.J. at 187.

The trial court correctly concluded that plaintiff failed to make this showing. Plaintiff's claim, as summarized in his appellate brief, is that "the failure of the [Division] to pursue exclusion cases and other investigations was a violation of law or rule or regulation promulgated pursuant to law." However, even under plaintiff's version of the relevant facts, this case involves nothing more than a policy dispute between the Division's middle and upper level management concerning the priority to be assigned to exclusion cases.

The Legislature has conferred authority upon the Casino Control Commission to maintain a list of persons who must be excluded from casinos, which is commonly referred to as ...


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