On appeal from Superior Court of New Jersey, Law Division, Morris County, L-1134-99.
Before Judges Stern, A. A. Rodriguez and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2000
Plaintiff William Villalobos appeals from an order of summary judgment resulting in the dismissal of his case against defendants, based on the Conscientious Employee Protection Act, N.J.S.A. 34:19- 1 to -8 (CEPA). We affirm.
Plaintiff was employed as a county investigator and detective with the Passaic County Prosecutor's Office from 1976 to 1994. In August 1984, he was promoted to the position of Captain of County Detectives and was assigned supervision of the Passaic County Prosecutor's Narcotics Unit. In November 1992, he was made supervisor of the Government Corruption and White Collar Crime Unit, and he was later transferred to supervisor of the Auto Thefts Task Force on March 16, 1994. Neither transfer involved any demotion in rank, salary or title. On August 1, 1994, plaintiff resigned on pension from the Passaic County Prosecutor's Office. He filed suit on December 29, 1998, against Ronald S. Fava, the Passaic County Prosecutor, Robert Warmington, the former First Assistant Prosecutor, John Nativo, Chief Investigator of the Prosecutor's Office, and the County of Passaic.
The circumstances giving rise to plaintiff's complaint relate back to September 1992, when plaintiff was supervisor of the Narcotics Unit. Lieutenant James Bush, a county investigator assigned to the Narcotics Unit, informed plaintiff that he had received information that illegal narcotics sales were being conducted at Bojangles All American Bar and Grill (Bojangles) in Wayne. He further told plaintiff that Vincent Mochetta, a lieutenant in the Prosecutor's Office, had a financial interest in Bojangles together with Peter Realmonte, a target of the investigation, who had been the subject of a federal indictment for conspiracy to distribute cocaine.
On October 14, 1992, Bush informed Prosecutor Fava of the Bojangles investigation as well as Mochetta's involvement with Realmonte. After having been assured that Mochetta was not a target or suspect of the investigation, Fava told Bush to advise Mochetta of the Bojangles investigation. When plaintiff learned of this instruction to Bush, he expressed to Fava his "strong opposition" to informing Mochetta. He advised Fava to refer the investigation to the Division of Criminal Justice of the Office of the Attorney General.
Two days later Fava ordered Warmington and Nativo to direct plaintiff to thoroughly brief Mochetta on the Bojangles investigation including the disclosure of confidential informants and undercover officers. Plaintiff complied with the order, but he submitted a memorandum to Fava on November 2, 1992, memorializing his objections to informing Mochetta and again recommending that the matter be referred to the Attorney General. Three days later Fava and Warmington had a three hour meeting with plaintiff during which time they told him that his memorandum should never have been written and filed because it challenged the authority of the prosecutor and implied that his decision in the matter was improper. After that meeting, plaintiff and Bush separately notified the Attorney General's Office of the Bojangles matter.
Less than two weeks after his confrontational meeting with Fava, plaintiff was transferred from the Narcotics Unit to the Government Corruption and White Collar Crime Unit. Mochetta was promoted to the rank of Captain and replaced plaintiff as supervisor of the Narcotics Unit. Plaintiff certified that Fava told him that the decisions were made "in the best interest of the Prosecutor's Office" and that Mochetta's promotion and assignment to the Narcotics Unit was decided prior to the Bojangles investigation.
On March 16, 1994, plaintiff was again transferred, this time to the position of supervisor of the Auto Theft Task Force. He was told this time by Chief Nativo that the transfer was "for the good of the Prosecutor's Office." Six months later, on August 1, 1994, plaintiff resigned from the Passaic County Prosecutor's Office.
Plaintiff was entitled to civil service protection and thereby not subject to at will termination by the Prosecutor under N.J.S.A. 2A:157-10. However, Bush had no civil service protection, and on June 30, 1995, Fava terminated Bush's employment. On June 18, 1996, Bush filed his civil complaint against these same defendants, alleging that his termination was a retaliatory discharge directly related to his report of the Bojangles matter to the Attorney General's Office and was a violation of CEPA. He claimed that Fava had retaliated against him earlier by removing him from the Narcotics Unit and assigning him to the Court Squad as a punitive action. He alleged that Fava delayed terminating him so that he could mask the retaliatory firing as a discretionary decision of the Prosecutor not to reappoint under N.J.S.A. 2A:157-10.
Bush's lawsuit received considerable publicity, particularly in Passaic and Bergen counties, and more press attention resulted when Warmington filed a cross-claim against Fava alleging that he was wrongfully terminated from his position as First Assistant Prosecutor in August 1995, in retaliation for objecting to Fava's decisions in the Bojangles matter including his decision to fire Bush. Subsequent press accounts revealed that documents of the Narcotics Unit relating to the Bojangles investigation were subpoenaed by a State Grand Jury and that a confidential letter had been sent to Fava from the Director of Criminal Justice finding no evidence of criminal conduct with respect to the investigation, but critical of the decision not to refer the matter and stating that placing Mochetta in charge of the investigation "clearly raised issues of potential conflict" and had "the appearance of impropriety."
Plaintiff was aware of Bush's lawsuit and the attendant publicity, including being mentioned in some articles indicating his opposition to Fava on the Bojangles matter. Nonetheless, he alleges that he was unaware of the harm perpetrated against him in violation of CEPA until January 4, 1998, when Bush told him of his favorable settlement with reinstatement, back pay and payment of legal fees. Plaintiff certified that it was at this time that Bush told him that discovery materials in his lawsuit disclosed a conspiracy by defendants to retaliate against plaintiff for his actions in the Bojangles matter by giving him "degrading assignments and transfers" in order to force him into retirement.
Bush's comments referred to Warmington's answers to interrogatories in the Bush suit which included ...