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Bell v. City of Atlantic City

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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