December 24, 2007
ARTHUR G. MONTO, JR., AND WILLIAM F. KARASIK, JR., PLAINTIFFS-APPELLANTS,
TOWNSHIP OF SPARTA, FREDERICK GEFFKEN, JEFFREY NAFIS, MARK ROZEK, AND HENRY UNDERHILL, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2007
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 does any of the following:
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 a rule 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.
"CEPA must be considered "remedial' legislation and therefore should be construed liberally to effectuate its important social goal." Abbamont, supra, 138 N.J. at 431. Indeed, New Jersey's CEPA was "described at the time of its enactment as the most far reaching 'whistleblower statute' in the nation." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998) (citation omitted). "The purpose of CEPA is to protect employees who report illegal or unethical work-place activities." Barratt v. Cushman & Wakefield of New Jersey, Inc., 144 N.J. 120, 127 (1996).
In Dzwonar, supra, the Court set forth the following requirements that a plaintiff alleging a CEPA violation must demonstrate:
(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. [177 N.J. at 461 (citations omitted).]
The first element of the Dzwonar test requires that plaintiff establish a reasonable belief that the employer's conduct violated a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy. The Court has made it clear that a CEPA plaintiff need not establish that the defendant actually violated a law, rule, regulation or clear mandate of public policy, but simply an objectively reasonable belief that one was being violated. Specifically, the Court explained:
[CEPA] does not require a plaintiff to show that a law, rule, regulation or clear mandate of public policy actually would be violated if all the facts he or she alleges are true. Instead, a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred. In other words, when a defendant requests that the trial court determine as a matter of law that a plaintiff's belief was not objectively reasonable, the trial court must make a threshold determination that there is a substantial nexus between the complained-of conduct and a law or public policy identified by the court or the plaintiff. If the trial court so finds, the jury then must determine whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable. [Dzwonar, supra, 177 N.J. at 464.]
A. Law, Rule, or Regulation
An employer is prohibited from engaging in retaliatory action against an employee who objects to any activity which the employee reasonably believes is in "violation of a law, or a rule or regulation promulgated pursuant to law." See N.J.S.A. 34:19-3c(1). Plaintiffs argue that Monto and Karasik reasonably believed that Casteel's conduct of fondling Prol's breast at the police headquarters in an area accessible to the public, violated the criminal statute for lewdness. Thus, plaintiffs contend that the motion judge erred in finding that defendants' conduct did not violate a law, rule, or regulation.
Lewdness is defined as "any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed." N.J.S.A. 2C:14-4.
In this case, assuming plaintiffs' allegations are true, Brill, supra, 142 N.J. at 523, Monto and Karasik could have reasonably believed that Casteel and Prol's conduct violated this criminal statute. Casteel grabbed Prol's breasts in an area open to the public; therefore, he could have reasonably expected to be observed by other non-consenting persons who would be alarmed. In response, defendants argue that this appeal is the first time plaintiffs have asserted that they believed Casteel and Prol's conduct violated the lewdness statute. Therefore, defendants conclude, "[a]cceptance of Plaintiffs' belated attempt to recast the motivation for their March 21, 2002 report as a violation of the lewdness statute, requires turning a blind eye to both the factual record and common sense."
A review of the record, including deposition testimony and written reports, reveals that plaintiffs never indicated an awareness of the lewdness statute, nor that it formed the basis of their complaint until this appeal. Plaintiffs' Brief in Opposition to defendants' motion for summary judgment does not contain anything concerning the lewdness statute, nor do plaintiffs' written reports depicting their observations of the groping incident. Nor was this contention presented at the hearing for summary judgment.
"The threshold question in a CEPA case brought under these sections is whether plaintiff has identified either 'a law, or a rule or regulation promulgated pursuant to law,' N.J.S.A. 34:19-3c(1), or 'a clear mandate of public policy concerning the public health, safety or welfare,' N.J.S.A. 34:19-3c(3), which the employer has allegedly violated." Smith-Bozarth v. Coalition Against Rape and Abuse, Inc., 329 N.J. Super. 238, 244 (App. Div. 2000) (quoting Mehlman, supra, 153 N.J. at 187-88 (1998)).
Therefore, to determine whether a plaintiff has presented a viable CEPA claim, a trial court "must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true." Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied, 138 N.J. 267 (1994). If the plaintiff fails to identify a clear mandate of public policy, there is no need to consider whether plaintiff has presented evidence that would support a finding that he or she "reasonably believed" defendant's conduct violated public policy. See Mehlman, supra, 153 N.J. at 181; MacDougall, supra, 144 N.J. at 391; Falco v. Community Med. Ctr., 296 N.J. Super. 298, 316 (App. Div. 1997). Whether a plaintiff has identified a clear mandate of public policy is a question of law which the court must decide before submitting a CEPA claim to a jury. Mehlman, supra, 153 N.J. at 187. [Smith-Bozarth, supra, 329 N.J. Super. at 245].
At the time of objection, however, a CEPA plaintiff does not need to be cognizant of the specific source of defendants' illegality. In Mehlman, supra, the Court explained:
In our view, the sensible meaning of CEPA is that the objecting employee must have an objectively reasonable belief, at the time of objection or refusal to participate in the employer's offensive activity, that such activity is either illegal, fraudulent or harmful to the public health, safety or welfare, and that there is a substantial likelihood that the questioned activity is incompatible with a constitutional, statutory or regulatory provision, code of ethics, or other recognized source of public policy. Specific knowledge of the precise source of public policy is not required. The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare. [153 N.J. at 193-94.]
In other words, a CEPA plaintiff need only reasonably believe at the time of his/her objection that defendants' conduct was illegal. See Young v. Schering Corp., 275 N.J. Super. 221, 233 (App. Div. 1994) aff'd, 141 N.J. 16 (1995) ("A CEPA plaintiff must show that his belief that illegal conduct was occurring had an objectively reasonable basis in fact-in other words that, given the circumstantial evidence, a reasonable lay person would conclude that illegal activity was going on.").
In this case, although Monto and Karasik never specifically mentioned the lewdness statute, it can be inferred from their deposition testimony and complaint that they reasonably believed that Casteel and Prol's conduct was lewd and thus illegal when they filed their complaint. For example, Karasik testified that he "was in shock at the time that a supervisor in the department would carry on such a blatant act in front of other officers and the public." (emphasis added). Karasik further testified that it was "frustrating to have to work in an environment, to work under such conditions where you may have to explain this type of action to the public, to other young officers, to anyone that might have viewed it, to children that might be in the building, to anyone of that nature." Similarly, Monto testified that he told the Chief that Casteel and Prol "were so open and flirtatious right in the public area." Additionally, plaintiffs' complaint asserts that they "were deeply concerned with regard to the neglect of duty being observed by them and many others, given the sustained juvenile banter and groping occurring in plain sight to all members of the department and public that would pass by various locations within the department."
Defendants note, however, that Mehlman v. Mobil Oil Corp., 291 N.J. Super. 98 (App. Div. 1996), aff'd, 153 N.J. 163 (1998), relying on Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 74 (1980), held that we would "not entertain sources of public policy identified for the first time after trial, however, inasmuch as a verdict, dependent upon the finding by a jury of a reasonable belief, cannot be upheld on the basis of post-hoc rationalization." Id. at 126 (citation omitted). "We specifically indicated [in Mehlman] that we will not consider on appeal any mandates of public policy neither alleged in a plaintiff's complaint nor relied upon in defense of an employer's motion to dismiss a claim." Regan v. City of New Brunswick, 305 N.J. Super. 342, 355 (App. Div. 1997).
Nevertheless, in Regan, we in fact reversed a grant of summary judgment in favor of defendants, even though the statutes that formed the basis of plaintiffs' belief were first presented on appeal. Indeed, in McLelland v. Moore, 343 N.J. Super. 589, 600 (App. Div.) certif. denied, 171 N.J. 43 (2001), we described Regan as "reinstating complaint, where employee did not identify until appeal the criminal statutes he believed were being violated, on the basis that they were identifiable from the record and from the employee's description of the nature of the illegal conduct he suspected."
In Regan, plaintiff police officer filed a complaint against the City of New Brunswick and the New Brunswick Police Department, alleging violations of CEPA. 305 N.J. Super. at 345. Specifically, plaintiff asserted that defendants' failure to promote him was in retaliation for three different investigations he made. Ibid. First, Sergeant Carroll, a supervising officer, instructed him to investigate an alleged assault between Patrolman Neal and Ortiz (Ortiz was a member of Carroll's unit). Plaintiff concluded that Ortiz was not at fault. Id. at 348. Second, plaintiff was assigned to investigate the shooting of an unarmed civilian, Potts. Ibid. There was allegedly someone who witnessed the incident, along with evidence that Carroll knew his identity. After Carroll refused to reveal the witness' name, plaintiff noted this in his report and reported it to the Captain of Detectives, David Bishop. Then, on the day of Potts funeral, a crowd of African American residents gathered nearby. The police dispersed the crowd. However, a police dog bit a civilian named Voorhees who was not part of the congregation. Voorhees was subsequently arrested and charged with assaulting a police officer and assault on a police canine. Ibid. Plaintiff's third investigation was of the Voorhees incident. His investigation revealed audiotapes of laughter coming from Carroll and Captain McCloskey during the dispersal of the crowd. Plaintiff reported this to his superiors. Notably, there were two incidents where Carroll referred to plaintiff as a "rat." Id. at 351. Plaintiff was never promoted to lieutenant.
During his deposition, plaintiff stated that he believed Voorhees may have been improperly charged with assault on the police officer and canine. Ibid. However, he did not claim that anything surrounding the Voorhees incident was illegal. Ibid. Furthermore, in his complaint, plaintiff: did not cite any specific statute, rule or regulation which was allegedly violated by either Carroll or McCloskey during or after each investigation conducted by plaintiff.
However, at oral argument on defendant's summary judgment motion, in response to the judge's inquiries as to the Potts incident, plaintiff's counsel did request that the judge consider the obstruction of justice statute. [Id. at 352.]
The trial court granted summary judgment in favor of defendants. "Without considering the Voorhees incident, the [trial] judge concluded that plaintiff's claim did not meet the requirement of CEPA that a plaintiff identify a law, regulation, or clear mandate of public policy that he reasonably believed was violated at his place of employment." Ibid.
On appeal, we reversed. We first cited to Fineman, supra, 272 N.J. Super. at 620, for the proposition that "in examining a CEPA claim, the court must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true." Regan, 305 N.J. Super. at 353 (emphasis added) (citation omitted); See also Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 316 (App. Div. 1997) certif. denied, 153 N.J. 405 (1998) ("the court must first determine whether there exists a clear expression of law or public policy, and only then will the factfinder consider whether the plaintiff reasonably believed that a violation of that law or policy has occurred . . . .") (emphasis added).
We then noted that the trial judge did not consider plaintiffs' allegations concerning the Voorhees incident. We concluded:
In evaluating defendants' motion for summary judgment, the motion judge could properly assume that plaintiff, a police officer for over twenty years, knew there were laws against charging innocent persons with crimes. On appeal, plaintiff identifies the specific criminal statutes proscribing false criminal charges. He further cites the report of the Prosecutor's Office indicating that McCloskey may have violated these statutes, assuming the information in plaintiff's report was true. Clearly, it was incumbent upon the motion judge to consider the Voorhees incident, both separately and in conjunction with other incidents in plaintiff's employment history, before summarily dismissing plaintiff's CEPA complaint. The failure to do so clearly violates the standard enunciated in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Plaintiff was entitled to all inferences that may have been drawn in his favor. [Regan, supra, at 356 (emphasis added).]
As in Regan, plaintiffs in this case did not identify the lewdness statute until their appeal. However, following our reasoning in Regan, we conclude that the proofs supported a finding that plaintiffs, as police officers for over ten years, knew there were laws against lewd conduct, even if they did not articulate this in the proper legal terms. As explained above, plaintiffs' deposition testimony and complaint reveal that they were in shock to see the sexual conduct that was occurring in a place that was accessible and visible to the public. Any reasonable person, not simply a police officer, would conclude that groping a woman's breast in a public area is illegal.
B. Clear Mandate of Public Policy
The oral opinion granting summary judgment in favor of defendants does not address the issue of whether plaintiffs reasonably believed that defendants' conduct was incompatible with a clear mandate of public policy. However, a review of plaintiffs' opposition to defendants' motion for summary judgment reveals that this argument was raised before the motion court. It is raised again on appeal.
Section c(3) of CEPA reads as follows:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. [N.J.S.A. 34:19-3.]
In Mehlman, supra, the court recognized the difficulty in precisely defining the term "public policy."
[B]ecause the sources and parameters of public policy are not susceptible to hard and fast rules, "the judiciary must define the cause of action in case-by-case determinations." . . . Although outright violations of criminal and civil statutes invariably will constitute practices incompatible with clear mandates of public policy, that the outer limits of that phrase defies precise description has long been understood. [153 N.J. at 187.]
The Court went on to define public policy "as that principal of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good. The term admits of no exact definition . . . . Public policy is not concerned with minutiae, but with principles." Ibid. (citation omitted).
Whether a CEPA plaintiff has adequately established that a clear mandate of public policy has been violated is an issue of law to be determined by the judge, not the jury. Ibid. Examples of sources of public policy include "federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics." Id. at 188. "However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient." Pierce, supra, 84 N.J. at 72. The Court was clear, however, that this list is not meant to be exhaustive. Mehlman, supra, 153 N.J. at 188.
The Court's most recent discussion of N.J.S.A. 34:19-3c(3) makes clears that the requirements for this section differ from those of c(1).
While an employee who proceeds under c(1) must show that he or she reasonably believed that the employer's activity, policy or practice "violat[ed]" a law, rule, or regulation, an employee who proceeds under c(3) is only required to show that the employer's activity, policy, or practice is "incompatible" with a clear mandate of public policy. To "violate" a law, a person must commit "[a]n infraction or breach of the law," Black's Law Dictionary 1564 (7th ed.1999), but a person's conduct may be found "incompatible" with a law based solely on a showing that the conduct is "irreconcilable" with that law, id. at 768. Moreover, since the recognized sources of public policy within the intent of c(3) include state laws, rules and regulations, a plaintiff who pursues a CEPA claim under this subsection may rely upon the same laws, rules and regulations that may be the subject of a claim under c(1). Consequently, it is easier for an employee who proceeds under c(3) to prove that he or she reasonably believed the employer's conduct was "incompatible" with a clear mandate of public policy expressed in a law, rule or regulation than to show, as required by c(1), a reasonable belief that the employer's conduct "violated" a law, rule or regulation. [Maimone v. City of Atl. City, 188 N.J. 221, 230-231 (2006) (citations omitted).]
Importantly, the Court noted that c(3) adds an additional element not required under c(1).
Although an employee may pursue an action under c(1) based on objections to employer conduct that he or she reasonably believes violated any law, rule or regulation, an employee who proceeds under c(3) must make the additional showing that the "clear mandate of public policy" he or she reasonably believes the employer's policy to be incompatible with is one that "concern[s] the public health, safety or welfare or protection of the environment." [Id. at 231 (citation omitted).]
In this case, plaintiffs present a myriad of sources which they contend form a clear mandate of public policy that they reasonably believed defendants' conduct violated or was incompatible with. Plaintiffs begin with the proposition that "the efficient running of a Police Department is clearly a public concern. The importance of the public's confidence in law enforcement agencies is deeply engrained in our New Jersey statutes and the Rules and Regulations governing the Sparta Township Police Department." To support this contention, plaintiffs first cite N.J.S.A. 40A:14-118, authorizing a municipality to create a police department. Additionally, the statute makes the Chief of Police responsible for the "efficiency and routine day to day operations" of the department, and authorizes the Chief to delegate such duties. Ibid.
Second, plaintiffs cite to the forward of the Sparta Township Police Department Manual, which reads in relevant part:
The success of a police department in the performance of its duties is largely measured by the degree of support and cooperation it receives from the people of the community which it serves. It is of paramount importance that we secure the confidence, respect, and approbation of the public. The cultivation of such desirable attitude is dependant upon proper performance of duty by all the members of the department.
Within this manual is the Law Enforcement Code of Ethics, which reads in relevant part:
I RECOGNIZE the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of public service.
Rigid adherence to the principles set out above is mandatory for anyone accepting a position in the police department. Acceptance of these principles should not be perfunctory; they should be weighed carefully. Citizens are quick to criticize any misconduct of members of the department; the Community places trust in police officers and expects them to so conduct themselves as to merit this trust.
Third, plaintiffs point to the General Rules and Regulations of the Sparta Township Police Department, requiring officers to conduct their professional and personal lives in such a manner "as to avoid bringing the department into disrepute," and prohibiting an officers' neglect of duty.
Plaintiffs then assert that "[t]he public policy surrounding the efficient running of a law enforcement agency is ingrained throughout our State Statutes." Plaintiffs cite to three statutes in support of this contention.
It is the public policy of this State to provide public officials with appropriate appointment, supervisory and other personnel authority to execute properly their constitutional and statutory responsibilities. [N.J.S.A. § 11A:1-2b (emphasis added).]
Recognizing the unique and essential duties which law enforcement officers and firefighters perform for the benefit and protection of the people of this State, cognizant of the life threatening dangers these public servants regularly confront in the daily pursuit of their public mission, and fully conscious of the fact that these public employees, by legal and moral precept, do not enjoy the right to strike, it is the public policy of this State that it is requisite to the high morale of such employees, the efficient operation of such departments, and to the general well-being and benefit of the citizens of this State to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes. [N.J.S.A. 34:13A-14a (emphasis added).]
Governments have the duty both to provide their citizens with standards by which they may determine whether public duties are being faithfully performed, and to apprise their officers and employees of the behavior which is expected of them while conducting their public duties. [N.J.S.A. 40A:9-22.2a.]
Plaintiffs contend that the preceeding "clearly set forth adequate public policies of neglect of duty and the efficient running of a police department that they reasonably believed were being violated." Moreover, plaintiffs argue that there is a "'substantial nexus' between the conduct they reported and the governing statutes for law enforcement, the rules and regulations promulgated in accordance with New Jersey statutes and the public policies which guide the 'efficient' running of law enforcement agencies" in New Jersey.
It is important to state again that plaintiffs do not need to establish that defendants' alleged conduct actually violated or was incompatible with a clear mandate of public policy, but only that they had an "objectively reasonable belief" in the existence of such a violation or incompatibility. See Maimone, supra, 188 N.J. at 233. Indeed, plaintiffs may carry this burden by demonstrating that there is a substantial nexus between Casteel's groping of Prol's breasts in a public area, and the public policy they have identified.
On the one hand, it can be argued that the cited sources simply set forth a broad and general policy concerning the proper performance of police duties. See MacDougall v. Weichert, 144 N.J. 380, 392 (1996) ("[A] vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate."). On the other hand, these sources, taken as a whole, arguably formulate a clear mandate of public policy. As noted, plaintiffs present numerous statutes and regulations, and a professional code of ethics, in support of their contention. The Code of Ethics mandates officers to obey the laws of the land and the regulations of the department. Although a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters is not adequate, Pierce, supra, 84 N.J. at 72, the Code of Ethics here concerns the duties of a police officer. It is difficult to conclude that this does not concern the public. Indeed, the Code itself states that "Citizens are quick to criticize any misconduct of members of the department; the Community places trust in the police officers and expects them to conduct themselves as to merit this trust." We are satisfied that plaintiffs have the more persuasive position on this issue. In our view, these sources establish a clear mandate of public policy, and the record supports a finding of a substantial nexus between that mandate and Casteel and Prol's alleged misconduct.
Defendants respond that plaintiffs allege purely personal harm, not public harm, and therefore cannot satisfy the additional element under c(3). Maimone, supra, 188 N.J. at 231. We conclude, however, that the misconduct in question is clearly of public concern. This is especially so as evidenced by the extreme public backlash that followed a previous sexual scandal within the Sparta Police Department. Finally, defendants assert that plaintiffs did not file their complaint in good faith and on a reasonable basis because: (1) plaintiffs admitted they filed their complaint against Prol after she filed a harassment complaint against them; and (2) the record is devoid of any evidence that plaintiffs acted to protect the Sparta Police Department. Without assessing the accuracy of these contentions, since this "case was disposed of in a summary judgment proceeding, [we must consider] the evidence in the light most favorable to the parties opposing summary judgment." Brill, supra, 142 N.J. at 523. Plaintiffs' complaint and their deposition testimony contain numerous declarations that they acted to protect the police department, providing a sufficient factual basis to overcome summary judgment.
As the Court made very clear in Maimone, supra, 188 N.J. at 230-31, whether plaintiffs' allegations violate a regulation under c(1) as the motion judge discussed in his opinion, is very different from the analysis under c(3). Most obviously, the standard under c(3) is not whether plaintiffs reasonably believed that a clear mandate of public policy was violated, but whether the actions in question were incompatible with it. Ibid. Furthermore, what makes up a "law, rule, or regulation" is different from what constitutes a clear mandate of public policy. In Mehlman, supra, we explained:
Mobil is mistaken that the clear mandate of public policy must prohibit the specific conduct of the employer in question. See e.g., Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 98-99, (1992) (private employee's right to privacy may serve as predicate of clear mandate of public policy undergirding wrongful discharge claim). The statute [CEPA] requires the employee to have reasonably believed that the employer's conduct had either violated a law, rule or regulation, or had been incompatible with a clear mandate of public policy. N.J.S.A. 34:19-3c . . . . If the Legislature had intended that a plaintiff be required to cite a specific, applicable law, rule or regulation, then there would have been no need for the "clear mandate of public policy" provision of N.J.S.A. 34:19-3c(3). To impose a "specific conduct" requirement would eviscerate this provision. [291 N.J. Super. at 123-24.]
Thus, the motion judge's statement that "[t]here is nothing in any of the regulations that . . . specifically, for example, bars fraternization by employees as members of the same department," (emphasis added), is not dispositive under the public policy analysis.
Plaintiffs contend that the trial court erred in failing to find that they suffered adverse employment action because "they were targeted with unwarranted disciplinary investigations, were stigmatized by untrue accusations, and were transferred from their regular shifts." As a threshold matter, the judge did not hold that plaintiffs did not suffer adverse employment action. Indeed, his opinion implies that there may have been adverse employment actions.
The only thing that might fall under a retaliatory condition here was the denial of senior-seniority for overtime work, and I find that that would have been, but still they're missing the critical issue of finding the law, rule or regulation that has been violated.
Notwithstanding this observation, we turn to the parties' contentions on this issue.
The third element a CEPA plaintiff must demonstrate is that an adverse employment action was taken against him or her. Dzwonar, supra, 177 N.J. at 461. CEPA prohibits an employer from taking "retaliatory action" against an employee for protected conduct. N.J.S.A. 34:19-3. "Retaliatory action" is defined 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).
The Court has yet to specifically delineate the scope of what constitutes an "adverse employment action." There are seemingly disparate views within the Appellate Division. On the one end of the spectrum, there is the view that an adverse employment action requires "an employer's action to have either impacted on the employee's 'compensation or rank' or be 'virtually equivalent to discharge' in order to give rise to the level of a retaliatory action required for a CEPA claim." Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 46 (App. Div. 2005); See also Keelan v. Bell Communications Research, 289 N.J. Super. 531, 539 (App. Div. 1996) (finding "no retaliatory action until plaintiff's actual discharge," concluding that the "definition of retaliatory action speaks in terms of completed action. Discharge, suspension or demotion are final acts. 'Retaliatory action' does not encompass action taken to effectuate the 'discharge, suspension or demotion.'"); Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002).
On the other end is the view that adverse employment action includes actions beyond those affecting compensation or rank.
Besides discharges, suspensions, and demotions, which clearly affect an employer's compensation and sometimes job rank, CEPA retaliation also includes "other adverse employment action" taken against the employee's "terms and conditions of employment." Terms and conditions of employment "refer to those matters which are the essence of the employment relationship," and include further serious intrusions into the employment relationship beyond those solely affecting compensation and rank. The commonly understood meaning of the phrase includes, for example, length of the workday, increase or decrease of salaries, hours, and fringe benefits, physical arrangements and facilities, and promotional procedures. [Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div. 2005) (citations omitted).]
See also Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005) ("[E]mployer actions that fall short of [discharge, suspension or demotion], may nonetheless be the equivalent of an adverse action.").
The Beasley court, while distinguishing Klein, supra, specifically noted that it "do[es] not read the CEPA retaliation definition as requiring all adverse employment actions to be the functional equivalent of a demotion or suspension." Id. at 609. In support of this conclusion, the panel cited Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003), in which the Court held:
"[A]dverse employment action taken against an employee in the 'terms and conditions of employment,' N.J.S.A. 34:19-2e, can include . . . many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct." [Beasley, supra, 377 N.J. at 608-09 (quoting Green, supra, 177 N.J. at 448).]
Notwithstanding these two differing views, the Court appears to have indirectly decided this issue in Maimone, supra. The Court noted that under the Legislature's definition of retaliatory action for the purposes of CEPA, any reduction in an employee's compensation is considered to be an "adverse . . . action . . . in the terms and conditions of employment." See Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div. 2005). Moreover, even without any reduction in compensation, a withdrawal of benefits formerly provided to an employee may be found in some circumstances to constitute an adverse employment action. See Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-36, (App. Div. 2005); Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd o.b., 362 N.J. Super. 245 (App. Div. 2003), certif. denied, 178 N.J. 32 (2003); see also Green, supra, 177 N.J. at 438 (noting that "many separate but relatively minor instances of behavior directed against an employee . . . may . . . combine to make up a pattern of retaliatory behavior"). [Maimone, supra, 188 N.J. at 236.]
Notably, the Court specifically cites to Beasley, Nardello, and Cokus, and makes no mention of Klein, Keelan, or Hancock. Moreover, the Court unequivocally states that "even without any reduction in compensation, a withdrawal of benefits formerly provided to an employee may be found in some circumstances to constitute an adverse employment action." Ibid. (emphasis added).
In this case, plaintiffs offer several different examples that they allege amount to adverse employment action under CEPA. The examples are as follows:
1. After plaintiffs filed their complaint regarding the groping incident, the working atmosphere was "permeated with dislike."
2. Plaintiffs had to perform their job duties under intense scrutiny while purposefully being mocked by peers and superior officers.
3. Naffis named them "troublemakers" and threatened to "give them trouble."
4. Naffis threatened to "tweak any report that came in to have it come out the way he wanted it to."
5. Monto's equipment was stolen out of his locker, his police vehicle was tampered with, and bullets in his shotgun were taken out or placed in backwards.
6. Monto was told by Scymanski that he was transferred to his shift so he could f_ _ _ with him.
7. Monto's life was threatened by Schetting.
8. Monto was constantly ridiculed with names.
9. Monto would not receive backup from his calls.
10. When Monto attempted to report these incidents, he was ordered by Sergeant Rozek not to submit any more reports to IA and was also informed that Naffis would not take any action to correct the problem. Karasik alleges similar complaints, but adds the following.
11. Karasik had to be escorted into the police building.
12. Karasik's shift was changed and he was denied overtime and detail work.
13. Sgt. Smith told Karasik that he was not to walk around his office without him.
14. Plaintiffs had pictures of naked men posted on their lockers.
Adopting the Beasley reasoning, as the Court appears to have done, these actions pass muster, at least for summary judgment purposes. In Nardello, supra, we held that a jury could draw an inference that plaintiff suffered a series of adverse retaliatory actions from the following: plaintiff, as a lieutenant in a police force, was forced to inform his superiors of cover ups and alleged misconduct, denied permission to obtain firearms instructor training, coerced to resign as leader and member of the SWAT team, denied ability to work on crime prevention programs, removed from the detective bureau, given demeaning jobs for his rank, and his authority to supervise was taken away. 377 N.J. Super. at 435-36. We concluded that "while many of the incidents are relatively minor, plaintiff made a prima facie case and the jury could conclude that they combine to demonstrate a pattern of retaliatory conduct that is specifically prohibited." Id. at 436.
Similarly, in the present case, disregarding the fact that Karasik's denial of seniority for overtime work alone would likely qualify as adverse employment action even under the strict Klein view, a jury could reasonably conclude that all the alleged incidents combined to demonstrate a pattern of retaliatory conduct that is specifically prohibited under CEPA. Particularly, plaintiffs allege that they had their lives threatened on several occasions by superior officers, they were transferred into a unit for the sole purpose of harassment, they did not receive back up when requested, they were called names, they were instructed not to file any more IA complaints and they were forced to engage in demeaning practices, such as having to be escorted around the police station. These incidents arguably combine to affect the "essence of the employment relationship," Beasley, supra, 377 N.J. Super. at 608, and collectively constitute retaliatory conduct under CEPA. While defendants are correct that mere abusive conduct by co-employees does not constitute adverse employment action, the record here presents far more than simple co-employee abuse. Rather, the involvement of superior officers in the pattern of activity outlined above constitutes, at least prima facie, a CEPA violation.
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