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Bell v. City of Atlantic City

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 23, 2007

JOSEPH BELL, PLAINTIFF-APPELLANT,
v.
CITY OF ATLANTIC CITY AND KEVIN LEICHTNAM, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-739-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges Graves and Alvarez.

Plaintiff Joseph Bell, a member of the Atlantic City Police Department (ACPD), appeals from a summary judgment order entered on April 12, 2006, dismissing his complaint against defendants, the City of Atlantic City (the City) and Kevin Leichtnam, a Captain in the ACPD. Plaintiff's complaint, filed under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, alleged he was transferred from the position of Fleet Coordinator at the City garage to "the less desirable position of Alpha Platoon----Beach Patrol," and he was subjected to other adverse employment action in retaliation for refusing to replace the headlights in Sergeant Russack's vehicle after he was ordered to do so by Captain Leichtnam. According to plaintiff, he did not initially comply because he believed Captain Leichtnam's order contradicted procedures set forth in the "Kelly memo"----an internal memorandum sent by Captain James Kelly to Deputy Chief of Police Robert Schwartz on April 11, 2001, which addressed the need for written reports when vehicles required repairs for damages beyond normal wear-and-tear.

Furthermore, plaintiff alleged the Kelly memo had the force of law or regulation within the ACPD as required under N.J.S.A. 34:19-3(c)(1).

On appeal, plaintiff presents two arguments:

POINT I

THE TRIAL COURT ERRED IN FAILING TO VIEW THE RECORD IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF.

POINT II

THE LAW DIVISION ERRONEOUSLY GRANTED SUMMARY JUDGMENT BY STRICTLY, RATHER THAN LIBERALLY, CONSTRUING CEPA.

After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge Daryl F. Todd, Sr., in his comprehensive oral decision on April 12, 2006.

A plaintiff must meet four criteria to establish a prima facie case of discriminatory retaliation under CEPA:

(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]

In this case, the motion judge's reasons for granting summary judgment included the following:

So the [evidence] here is so one[-] sided that the case should not be permitted to go to the jury. The basic elements of a prima facie case have not been met. There's no law, rule[,] or regulation in effect upon which the plaintiff could reasonably rely. The prior memorandum of Captain Kelly was some years old, it was never turned into a general policy or a general order by the Chief of Police. The Chief made that clear in his own Certification.

The plaintiff didn't do any whistle[-] blowing. He wrote a note to himself and put it in his own file. If he blew a whistle, he muffled the sound. He . . . put the whistle with the note right in his personal file and didn't do anything with it. So the matter does not deal with issues of illegality or unethical work place and only deals with the administration of car repairs for a $350 repair and perhaps the saving . . . of money with respect to that. But the rebuild of the system was not meant for ordinary maintenance, it was only to take care of repairs caused by accidents or abuse and there's no indication that the rebuild issue is even implicated here.

So plaintiff created an issue where none existed. By creating an issue he thwarted the lawful order of a superior and the police department like a military organization relies upon adherence to orders lawfully given in appropriate chains of command.

. . . [T]he [c]court does not reach the issue of whether the transfer constitutes a retaliation because the other elements necessary to reach that issue have not been established and the Motion for Summary Judgment is granted.

We are in substantial agreement with the trial court's analysis. "The purpose of CEPA is to protect employees who report illegal or unethical work-place activities." Barratt v. Cushman & Wakefield, 144 N.J. 120, 127 (1996). CEPA "was not intended to provide a remedy for wrongful discharge for employees who simply disagree with an employer's decision, where that decision is entirely lawful." Young v. Schering Corp., 275 N.J. Super. 221, 237 (App. Div. 1994), aff'd, 141 N.J. 16 (1995). To withstand defendant's summary judgment motion, plaintiff was required to make a threshold showing that the Kelly memo had the force of law, rule, or regulation promulgated pursuant to law, or that it represented a clear mandate of public policy, and, as the court recognized, plaintiff failed to do so.

The record also supports the court's finding that plaintiff failed to demonstrate any "whistle-blowing" activity as described in N.J.S.A. 34:19-3. "CEPA is designed to protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-employees," Estate of Roach v. TRW, Inc., 164 N.J. 598, 609-10 (2000), but it was not intended "to assuage egos or settle internal disputes at the workplace," Klein v. Univ. of Med. & Dentistry, 377 N.J. Super. 28, 45 (App. Div.), certif. denied, 185 N.J. 39 (2005). Here, plaintiff simply disagreed with his supervisor's order, and, even if we assume defendants engaged in illegal or unethical activity, plaintiff merely placed a brief memo in his "own personal file." Thus, plaintiff never "blew the whistle" in a manner recognized under N.J.S.A. 34:19-3.

In support of their motion for summary judgment, defendants also argued plaintiff was unable to demonstrate he suffered any adverse employment action. "Retaliatory action" is defined by CEPA as the "discharge, suspension[,] or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). In the present matter, it is undisputed that plaintiff was not discharged or demoted in rank, and his salary was not reduced. It is also clear the adverse actions alleged by plaintiff did not impact "in a substantial way" on either plaintiff's "work or conditions at work." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div.), cert. granted, 174 N.J. 191 (2002), appeal dismissed, 177 N.J. 17 (2003). Thus, although the trial court found it unnecessary to reach this issue, we are satisfied summary judgment was also appropriate because plaintiff failed to establish that a reasonable jury could find that he suffered "retaliatory actions" in violation of CEPA.

Affirmed.

20071023

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