On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1832-00.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Falcone and Kimmelman.
A jury found Passaic County liable for violating the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, when it retaliated against plaintiff, Julius Beasley, who was a supervisory officer at the Passaic County Juvenile Detention Center. After the jury verdict was reduced to judgment, the County appealed, advancing several reasons why the liability judgment should be reversed. These reasons included, among others, that the actions taken against plaintiff cannot be considered retaliatory under CEPA, and that the court erroneously admitted hearsay testimony by plaintiff that he was told by the Center's Director that "downtown" wanted him fired. Plaintiff cross-appealed, contending the motion judge erred by dismissing plaintiff's continuing violation, emotional distress, and hostile work environment claims, and the trial judge erred by bifurcating the trial, allegedly resulting in an insufficient damage award. We reject plaintiff's cross-appeal, but reverse the liability judgment because the jury should not have heard the hearsay testimony regarding "downtown's" intentions. Accordingly, we remand for a new trial on liability.
Because plaintiff's dispute with the County spans several years, our recitation of the relevant facts and procedural history is, of necessity, lengthy. Plaintiff began work at the Center in 1982 as a juvenile detention officer. He advanced through the available employee ranks and by the summer of 1993, the County had promoted him to one of seven commander, or supervisor, positions.
Before he was promoted, plaintiff testified on May 19, 1993, before a public meeting of the Board of Freeholders regarding the unruliness of the juvenile inmates and the need for metal detectors, the poor quality of the inmates' food, lack of proper training for new officers, the mandatory sixteen-hour days and the need for more officers, an overly restrictive sick policy, and the County's failure to promote plaintiff to supervisor more expeditiously. At some point after the Board meeting, plaintiff claimed that the Assistant Director, James, plaintiff's immediate supervisor, told him that if he kept "going the way that you['re] going, you're never going to be able to get employment . . . in this County."
The Bergen Record newspaper covered plaintiff's testimony before the Board. The story quoted the Center's Director, Garigliano, as describing plaintiff as a "disgruntled employee," and plaintiff as complaining about the Director's poor supervisory skills, lack of support, playing favorites in promotions, and being the root of the problems at the Center.
Plaintiff claimed that after the Board meeting, he became the subject of retaliation and was investigated numerous times, which, on some occasions, led to charges. As a result of one investigation, for example, plaintiff was suspended for three days without pay. However, the charges were dismissed in April 1994, and the County restored plaintiff's lost pay. Then, plaintiff received an absentee/lateness warning in 1996. In April 1997, there was an incident where three inmates escaped from the facility. As a result, the County brought neglect of duty charges against four officers. When plaintiff provided character evidence on behalf of the officers, Garigliano and James asked plaintiff why the hearing was any of his concern. Garigliano viewed plaintiff's appearance as "against the administration."
In June 1997, plaintiff was suspended for conduct unbecoming a public employee after the boyfriend of the mother of plaintiff's child charged that plaintiff had threatened him with a gun. Plaintiff was reinstated after a hearing on July 11, 1997. Another commanding officer testified that in such situations, officers are usually not suspended until indicted, and are assigned to another facility with pay. Plaintiff requested such a reassignment to no avail. In any event, county counsel concluded that regardless of the outcome of the charges, there was enough evidence to support at least a six-month suspension, and therefore plaintiff was suspended again on July 23, 1997. Six days later, after another hearing, plaintiff was again reinstated and, ultimately, no indictment was returned by the grand jury. During his two suspensions, defendant lost nearly $5,000 pay for twenty-four days of work. The County Personnel Officer wrote a memorandum in which she stated that the County should not "automatically repay suspension days without a fight. I would recommend that [plaintiff] file an appeal with OAL, we can then discuss this issue in a settlement hearing."
In September 1999, plaintiff was awarded back pay after pursuing an appeal to the Department of Personnel, which culminated in a favorable decision by the Merit System Board finding that the "criminal charges against him were dismissed and no administrative charge was sustained." The Merit System Board concluded that it was clear that the "County's initial suspension of [plaintiff] pending the disposition of the criminal charges was proper, [however,] such action does not relieve it from adhering to Merit System rules [and] once the charges were dismissed. . . . [plaintiff was] entitled to back pay for the 24 days he was suspended from work."
Around the end of 1996, the County's personnel director was instructed by the County Administrator to examine the amount of overtime earned by county employees. The director determined that plaintiff made $40,000 in overtime in 1996, when normal annual overtime was in the $3,000 to $5,000 range, and that plaintiff had made $17,000 in overtime by April 1997, which if continued would result in annual overtime of approximately $60,000. The Center director, Garigliano, recognized that plaintiff was the "number one overtime earner," but for several years he ignored the County administration's complaints regarding plaintiff's overtime because he did not believe they were fair. This time, however, the County personnel director told Garigliano to cut plaintiff off from voluntary overtime, while retaining his eligibility for mandatory overtime, and Garigliano complied.
In August 1997, plaintiff was informed that the overtime slips he submitted would be credited for compensatory time because he was ineligible for overtime except in emergencies. Plaintiff claimed that he was the only officer so restricted, and another commander testified that plaintiff's overtime amounts, with some exceptions, were generally comparable to other commanders.
Plaintiff and four other commanders wrote a letter to one of the freeholders in November 1997 seeking a meeting regarding salary and work responsibilities. The commanding officers formed a union in the summer of 1998 and plaintiff became the shop steward in 1999. Plaintiff unsuccessfully asked the Center Director and Assistant Director and the County administration for more officers in 1999. According to one of the other commanders, the opening of a new building at the Center in 1998 magnified the staffing problem.
Plaintiff received an absentee warning after taking five days off between January 17 and March 16, 1999. In addition, in April 1999, plaintiff received a final warning for lateness, and was docked pay for pay periods in April, May, and June 1999. In addition, plaintiff was suspended for one day in June 1999 for excessive tardiness allegedly based on eight days despite plaintiff's understanding that the normal practice was to suspend an employee one day for every ten days late.
In August 1999, plaintiff discovered that the freeholders had authorized an increment raise for the commanding officers in February 1996, which had not been received by plaintiff and at least one other commander. Plaintiff filed a grievance, and he finally received his raise in April 2000, and a retroactive check a month or two later. Plaintiff and the other commander who had not received the 1996 raise were also finally placed on the same pay range step as the other commanders.
Plaintiff filed three incident reports in September 1999 regarding the need for more staff at the Center. Four days after the last incident report, and according to plaintiff, without prior warning, the Center suspended him for three days of excessive tardiness. Three days later, the Center docked plaintiff's pay for being fifteen minutes late during the final pay period in September 1999.
Because no response to the staffing needs was received from the Center Director or Assistant Director, plaintiff and other commanders complained once again to the freeholders at a board meeting that September. Plaintiff complained about the Director's leadership style and mismanagement, the quality of the Center's food, officers being disciplined for arriving fifteen minutes late after having worked a sixteen-hour day, and a shortage of staff. According to plaintiff, the County administration was "not too happy about that." Plaintiff also spoke to the press about these grievances and the resulting article quoted plaintiff as blaming the Center Director for most of the Center's problems.
In November 1999, plaintiff was docked pay for leaving fifteen minutes early with permission during a pay period in early November. Plaintiff claimed he was the only commanding officer to receive such sanction.
In December 1999, Garigliano wrote plaintiff expressing his "outrage" that plaintiff was working voluntary overtime and advised him not to do so in the future. In response, plaintiff filed another incident report, complaining the staff was shorthanded. The Assistant Director responded, "this is what you have to work with."
In January 2000, Dolores Ferguson replaced Garigliano as the Center's Director. Plaintiff received an absentee warning in March 2000, and plaintiff claimed at the time he was "burnt out" and that he was having a drinking problem. Consequently, plaintiff filed a grievance regarding the absentee warning. Around this time, plaintiff testified that Ferguson told him that "downtown" wanted him fired. In April 2000, plaintiff was docked once again for reporting to ...