September 4, 2007
GARY SCYMANSKI, PLAINTIFF-RESPONDENT,
TOWNSHIP OF SPARTA; THE MAYOR AND COUNCIL OF THE TOWNSHIP OF SPARTA; HENRY UNDERHILL, THE TOWNSHIP OF SPARTA; AND FREDERICK GEFFKEN, THE CHIEF OF POLICE OF THE TOWNSHIP OF SPARTA; AND SERGEANT MARK ROZEK, THE INTERNAL AFFAIRS OFFICER, DEFENDANTS-APPELLANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 10, 2007
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 promulgated pursuant to law by the employer . . .; 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 regulation promulgated pursuant to law . . .;
(2) is fraudulent or criminal . . .; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
The facts underlying plaintiff's CEPA claim arise from or relate to the arrest of an individual by members of his squad on suspicion of driving while under the influence (DUI) on December 14, 1999. Plaintiff alleges that at some point the individual asked for and was granted permission to make a phone call and that he used that phone call to contact then Chief of Police, defendant Geffken, who is now retired. Plaintiff contends that Geffken and the individual were close personal friends from the Marine Corps League, and that Geffken sent then Lieutenant Ernest Reigstad, now Chief of Police, to the station to facilitate the individual's release. Allegedly, as a result of Geffken and Reigstad's activities, the individual was allowed to leave the station without having been charged with DUI. Almost three years later, in October 2002, citing anonymous sources, plaintiff's counsel sent a letter to the Sussex County Prosecutor's Office alerting that office to the improprieties allegedly involved in the DUI arrest detailed above. Defendants allegedly began targeting plaintiff in response.
Plaintiff asserts in his amended complaint that various disciplinary actions have been taken against him "because the Chief perceives that it is the plaintiff who has made known" to the prosecutor's office the improper dismissal of DUI charges. At oral argument for the summary judgment motion, plaintiff asserted that "the chief believes that the plaintiff is the one who reported [the DUI] to the Prosecutor's Office" and this resulted in retaliatory action. In his appellate brief, plaintiff now argues that "through his agent, [plaintiff] made known to the Sussex County Prosecutor's Office that a DWI was fixed." However, in neither instance does plaintiff allege that he provided the information or caused -- through his attorney or otherwise -- the information to be communicated to the prosecutor's office or to any other public body.
The judge denied defendant's motion for summary judgment because, while he thought "the complaint [was] a little weak in terms of the allegation of an important reading of [the] CEPA statute, which is the disclosure or the threat to disclose", giving all favorable inferences to plaintiff, plaintiff's allegations of the Chief's misperceptions and retaliatory discipline were deemed sufficient to withstand a summary judgment motion. We disagree.
To create a prima facie case of discriminatory retaliation, plaintiff must: demonstrate, in relevant part: (1) a reasonable belief that the employer's conduct was violating either a law, rule or public policy; (2) he or she performed a "whistle blowing" activity as described in N.J.S.A. 34:19-3a or c; (3) an adverse employment action was taken against him or her; and (4) a causal connection existed between his whistle-blowing activity and the adverse employment action." [Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005).]
Once a plaintiff establishes these elements, then the defendants "must come forward and advance a legitimate, nondiscriminatory reason for the adverse conduct against the employee." Ibid. However, we need not go any further because plaintiff has failed to establish a prima facie case under CEPA.
Plaintiff cites only generally to CEPA in his complaint and fails to indicate under which portion of the statute he is seeking relief. However, based on plaintiff's subsequent arguments, it would appear that plaintiff is pursuing a claim under N.J.S.A. 34:19-3a(1) or 3b, which apply to employees who have disclosed or threatened to disclose prohibited conduct. Even viewing plaintiff's case, as the non-moving party, in the most favorable light, plaintiff has failed to show that he engaged in any protected conduct, namely, that he disclosed or threatened to disclose to anyone the circumstances of the DUI investigation. Without such a disclosure, plaintiff's claim must fail.
The record clearly shows that it was plaintiff's counsel who alerted the prosecutor's office to suspected abuses in the Sparta Police Department. Plaintiff told investigators that he was not the one who disclosed the information to his attorney and that the attorney was in possession of the information prior to the time that plaintiff engaged his services. Moreover, plaintiff stated that he had no personal knowledge of Geffken's involvement with the DUI suspect who was allegedly released. Consequently, there is no issue of fact from which a jury could reasonably find or infer that plaintiff had engaged in protected activity.
The motion judge properly understood that all favorable inferences must be given to plaintiff, but mere conjecture is insufficient to defeat a motion for summary judgment. Mindful of the indulgence owed to the proofs of one opposing summary judgment, we find nothing in the record that would support an inference plaintiff made or threatened to make a disclosure concerning the activities of his employer. His proofs establish, at best, that he believes defendants suspected that he made a disclosure. Such an unsubstantiated belief fails to make out a prima facie case. Hence, defendant's motion for summary judgment should have been granted.
Reversed and remanded.
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