On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-126-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Upon leave granted, defendants, the Township of Sparta (Township), the Mayor and Council of the Township, Township Manager Henry Underhill, former Chief of Police Frederick Geffken, the present Chief of Police and Internal Affairs Officer Sergeant Mark Rozek (collectively defendants), appeal from an October 17, 2006, interlocutory order denying their motion for reconsideration of the court's previous denial of their motion for summary judgment. For the reasons that follow, we reverse and remand so that an order granting summary judgment may be entered in favor of defendants, dismissing plaintiff's claim of retaliatory discipline.
Plaintiff, Gary Scymanski, a twenty-three year veteran of the Sparta Police Department, filed a multi-count complaint against defendants on March 3, 2003, seeking review of two separate disciplinary actions taken against him and also alleging a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Defendants filed a motion for summary judgment on the CEPA claim in July 2005. Following oral argument on July 25, 2006, the court declined to grant the motion and by order dated October 17, 2006, declined defendants' motion for reconsideration. Defendants now appeal, arguing that summary judgment should have been granted because plaintiff failed to produce any evidence in support of the CEPA claim.
Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). That is to say, accepting as true all evidence supporting the party opposing the motion and according to him or her the benefit of all favorable inferences, if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). An appellate court reviews the grant or denial of summary judgment applying the same standard as the trial court and, in effect, conducts a de novo review of the facts on the record. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
The Legislature enacted CEPA 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). Consequently, "[t]hese requirements must be liberally construed to effectuate CEPA's important social goals." Maimone v. City of Atl. City, 188 N.J. 221, 230 (2006) (citing Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003)).
N.J.S.A. 34:19-3 provides, in pertinent part:
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:
(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 ...