On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-142-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and S.L. Reisner.
Plaintiffs Arthur G. Monto, Jr. and William F. Karasik, Jr., former Township of Sparta police officers, appeal from a summary judgment dismissing their complaint filed under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, against defendants Township of Sparta (Sparta), Frederick Geffken, Jeffrey Nafis, Mark Rozek and Henry Underhill. We reverse.
A. The Incident of September 2001
The Sparta Police Department hired Karasik in 1991 and hired Monto in 1993.
In September 2001, Karasik and Monto, while on duty, allegedly observed Sergeant Casteel "rubbing, groping, and sexually massaging" the breast of records clerk Beth Prol "within the Public Records Room accessible to the public." Karasik specifically testified that Casteel's hands were underneath Prol's blouse. Karasik also testified that Prol was "a very willing participant in the actions that were occurring" because she was smiling.
According to their Complaint and deposition testimony, plaintiffs were "highly sensitive to the issues of sexual impropriety" in the department in light of intense public scrutiny resulting from an earlier, highly publicized sexual affair between a supervisor and officer. As a result, they reported the groping incident to their supervising officer, Sergeant John P. Beebe.
Beebe testified that Monto and Karasik informed him that they observed Casteel fondling Prol at her work station. Beebe first instructed Monto to type a memo documenting the incident. About two days later, Beebe brought plaintiff's complaint directly to defendant Lieutenant Jeffrey Naffis, who at the time was the department's Supervisor of Internal Affairs. Beebe testified that Naffis indicated "he would take care of it." On the contrary, Naffis testified that he did not recall Beebe reporting Monto and Karasik's complaint to him in 2001.
Monto testified that Naffis had a negative reaction to their complaint. Specifically, Monto testified that Beebe told him that, after Beebe gave the complaint to Naffis, Naffis was "all pissed over it, he didn't want to hear it . . . [he] would not even entertain it." Additionally, Monto testified that Beebe told him that Naffis said they were "troublemakers and if [they] wanted trouble he would give them trouble." When Monto asked Beebe why Naffis was teaming up with Casteel, Beebe responded that they were buddies.
After some time, it became apparent to Monto and Karasik that the department was not taking action on their complaint.
Beebe testified that he did not hear anything back from Naffis for the remainder of 2001. Naffis testified that he did not know if an Internal Affairs investigation was opened regarding the groping incident. Naffis did recall, however, being told by defendant Chief of Police Frederick Geffken to "hold off" investigating the incident because he wanted to see it in writing. Additionally, Naffis testified that he did not recall Geffken giving him instructions to open an Internal Affairs investigation into the groping incident. Notably, Karasik testified that Geffken was best friends with Prol at the time in question.
Monto and Karasik met with Geffken in December 2001 to inquire why the department was not conducting an investigation regarding their complaint. Monto testified that Geffken's response was minimal: "Chief was always great for saying, you know, he'll take care of it, but it never was taken care of." Monto subsequently initiated another internal investigation against Naffis concerning how the initial complaint was being handled. This complaint was the result of alleged threats made by Naffis, indicating that he would alter any report that comes in next "to have it come out the way he'd like."
Sometime after the December 2001 meeting, Naffis contacted Casteel to put him on notice concerning Monto and Karasik's allegations. He told Casteel "if anything is happening, [to] knock it off." This caused Geffken to remove Naffis from his position as Internal Affairs officer because he had unofficially contacted Casteel to warn him about the complaint.
B. Adverse Employment Actions
After filing the complaint regarding the groping incident, plaintiffs allegedly encountered adverse employment actions. For example, in December 2002, Monto and Karasik were transferred to a different squad under the command of Sergeant Scymanski. Monto testified that Scymanski told him he had been transferred so that he could f_ _ _ with him. Additionally, when Monto would request a day off or compensation time, Scymanski would tell a junior officer to put the request in a shredder in the presence of other officers. Karasik testified that the transfer resulted in a loss of seniority.
Furthermore, Monto and Karasik had their lives threatened on several different occasions. First, Monto testified that Sergeant Schetting made comments implying that someone could accidentally shoot him at the shooting range while he (Schetting) was in the bathroom. Later, Schetting told Monto that they would find his body on the side of the road, or that he would have a hunting accident. Karasik testified that Schetting also threatened to kill him. These threats were reported to both Geffken and Chief Ernie Reigstad, Geffken's successor.
Also, there were incidents where Monto and Karasik were taunted, called names, and subjected to practical jokes. For example, Monto observed the word "queers" written on his locker. Additionally, Karasik testified that superior officers called them "tweedledee" and "tweedledum," "dumb and dumber," "short timer," "criminal," and "carrot stick." Karasik testified that this name calling never took place before their reporting of the alleged groping incident. Additionally, Karasik had a naked picture of a man or teenage boy placed on his locker. This was corroborated by Casteel. Monto also testified that bullets were taken out of his shotgun or placed backwards. Finally, Monto testified that there were various occasions where he would not receive backup up while on duty.
Monto verbally reported the incidents to defendant Mark Rozek, an Internal Affairs officer. Rozek, in turn, ordered Monto not to submit a written report concerning the incident. Rozek also told Monto not to submit any more complaints about Prol. Monto testified that he was "closed out of internal affairs" because Rozek instructed him "not to send in any more written complaints." When Monto reported the incidents to then Lieutenant Reigstad, Reigstad responded that "he [Reigstad] [was] aware of it, but the chief's going to take no action to correct it."
C. Prol's Allegation of Harassment Against Monto and Karasik
On March 6, 2002, Prol wrote a memo to Geffken claiming she was harassed by Monto and Karasik with childish comments and behavior. She claimed that she was the victim of remarks, utterances, or criticisms from Monto and Karasik. In response, Geffken initiated an Internal Affairs investigation. After Prol's complaint, Karasik testified that he was not allowed to step into headquarters unless escorted.
Rozek conducted an investigation of Prol's allegations against Monto and Karasik. He concluded that based on the information available to him, "nothing supports the allegation of improper conduct on the part of Officers Karasik and Monto." He therefore recommended that the officers be exonerated of the charges.
D. Monto and Karasik's Termination
Following the filing of their complaint regarding the groping incident, Monto and Karasik were the subject of numerous investigations and disciplinary actions. For example, on July 2, 2002, Rozek conducted an investigation of Karasik regarding allegations, from July 2002 and January 2001, of driving intoxicated while off duty. On July 3, 2002, Karasik received a three day suspension for insubordination and a one day suspension for misuse of time. There was also an investigation concerning whether Karasik improperly handled a DWI report in October 2001. In October 2002, an investigation of Monto and Karasik regarding incorrect overtime slips resulted in written reprimands.
Monto and Karasik were ultimately terminated on March 9, 2004 for insubordination, failure to perform duties, conduct unbecoming, neglect of duty, and other sufficient cause. The termination arose out of their refusal to provide, in violation of a direct order, information related to an investigation opened as a result of allegations they made that their lives were in danger from fellow officers. Monto and Karasik's refusal to answer the questions and provide factual information to substantiate their allegations violated the Attorney General Guidelines and Sparta Police Department regulations.
On March 10, 2003, before they were terminated, plaintiffs filed a single count complaint, asserting that they had been retaliated against by defendants after they filed the report against Prol and Casteel, in violation of CEPA. As noted, the complaint named the Township, Geffken, Naffis and Rozek as defendants, along with Township Manager Harvey Underhill. After considerable pre-trial skirmishing, defendants moved for summary judgment. After argument, on August 4, 2006, the judge granted summary judgment in favor of defendants, concluding that:
Under CEPA I think it's clear that you need to show what law, rule or regulation an employer violated for which there is ostensibly whistle blowing, and the cases have indicated that it's the court's obligation to find what that law, rule or regulation is that has been violated.
The plaintiff in this case points to a variety of regulations in the Sparta Police Department manual, which are really more generic, fuzzy, feel good type regulations. There is nothing in any of the regulations that the plaintiff points to that specifically, for example, bars fraternization by employees of the same department. And in this case, based on the present case law that has interpreted CEPA, I think that something akin to that would had to have been in the regulations for the plaintiff to have a reasonable expectation that what they were calling attention to was a problem, and there isn't.
. . . [T]here's no rule or regulation that I can find or law that has been violated that the employees -- plaintiff employees here called attention to. The assignment that they received I don't consider to be adverse employment action. The false Internal Affairs complaints that were brought against them were ostensibly brought by fellow employees, and that's not adverse employment action because the inaction has got to be by the employer, not by fellow employees.
Plaintiffs contend on appeal that granting summary judgment was erroneous because: (1) the judge wrongfully concluded that defendants did not violate a statute, rule, or regulation, or public policy of the State; and (2) there existed a genuine issue of material fact regarding the causal connection between plaintiffs' complaints and the retaliatory actions taken against them.
The standard of review is well-settled. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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. All papers on file must be considered. Even though the allegations may raise an issue of fact, if the other papers show that, in fact, there is no real material issue, then summary judgment can be granted. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). "Bare conclusions in the pleadings, without factual support in tendered affidavit, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co., Corp. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961). Disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 530 (1995).
The trial court must not decide issues of fact on a motion for summary judgment, but rather only decide whether any such issues exist. Brill, supra, 142 N.J. at 540; Judson, supra, 17 N.J. at 75; R. 4:46-5. Brill, supra, articulates the rule for determining whether there is a genuine issue of fact. The judge must engage in a weighing process to decide whether: the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party . . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2 . . . . [W]hen the evidence "is so one-sided that one party must prevail as a mater of law," . . . the trial court should not hesitate to grant summary judgment. [Brill, supra, 142 N.J. at 540; R. 4:46-2(c).]
On appeal, we use these same standards. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we decide whether there was a genuine issue of material fact, and if none existed, we then decide whether the trial court's ruling on the law was correct.
"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.'" Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Bd. of Educ., 139 N.J. 405, 431 (1994)). CEPA, codified in N.J.S.A. 34:19-3, reads in relevant part:
An employer shall not take any retaliatory action against an employee because the employee ...