On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-519-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 30, 2008
Before Judges Winkelstein and LeWinn.
For eight-and-a-half years, plaintiff, Joseph C. Linneman, was an at-will employee of the Burlington County Board of Chosen Freeholders (the Board), serving in the Treasury Department in the title of Risk Manager. The Board terminated plaintiff's employment on February 7, 2007.
On February 19, 2007, plaintiff filed a complaint and order to show cause against the Board and Augustus Mosca, the County Administrator and Clerk of the Board. Plaintiff alleged defendants had terminated him in violation of his rights under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA); his order to show cause sought immediate reinstatement to his position pursuant to N.J.S.A. 34:19-5.
On March 7, 2007, defendants simultaneously filed their answer and a motion to dismiss the complaint. Plaintiff cross-moved to file an amended complaint on April 5, 2007. Following oral argument, on April 30, 2007, the trial judge entered an order (1) granting plaintiff permission to file an amended complaint; and (2) granting defendant's motion to dismiss that complaint with prejudice. This appeal followed.
We have thoroughly reviewed the record. Because of what we consider to be procedural infirmities in the trial court's disposition of this matter, we reverse the order of April 30, 2007, and reinstate plaintiff's amended complaint.
In his amended complaint, plaintiff set forth forty-four paragraphs describing factual allegations in support of his CEPA claim. The gravamen of his complaint was that defendants illegally retaliated against him "because he objected to the County's gross mismanagement and willful waste of public money."
Defendants' motion sought "to dismiss [the complaint] for failure to state a cause of action under R.4:6-2(e) and/or R.4:46." (Emphasis added.) Despite the reference to Rule 4:46, defendants' motion did not seek relief in the form of a summary judgment; nor did it comply with the specific requirements of Rule 4:46-2(a). Defendants filed no "statement of material facts . . . set[ting] forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." R. 4:46-2(a).
Although defendants attached certifications and exhibits, their motion and supporting brief expressly sought dismissal for "failure to state a claim on which relief can be granted," as provided in Rule 4:6-2(e). Those certifications and exhibits addressed plaintiff's original complaint and not the amended complaint filed with plaintiff's cross-motion on April 5, 2007. Defendants' brief in opposition to that cross-motion contained no additional certifications and, once again, argued that the amended complaint failed to state a cause of action under CEPA.
In both their original motion and their brief in opposition to plaintiff's cross-motion, defendants contended that plaintiff was terminated because he violated the County's sexual harassment policy, as well as policies governing lunch and e-mail privileges. Defendants asserted that, after plaintiff rejected a settlement agreement, the Board voted to terminate his employment.
Certifications by present and former County employees and exhibits appended to defendants' March 7, 2007, motion claimed that (1) on November 30 and December 6, 2006, plaintiff made sexually inappropriate comments to a female co-worker; and (2) the investigation of the sexual harassment complaints disclosed that plaintiff "often took two-hour lunches, in violation of County policy" and that his "e-mail account was over four times larger than the County standard for maximum e-mail storage."
According to those certifications, the investigation results were presented to the Board on January 10, 2007, at which time Mosca, the County Administrator and Clerk of the Board, was directed to convey the Board's displeasure to plaintiff. Mosca certified that he met with plaintiff on January 12, 2007, told him about the investigation results, and conveyed the Board's sentiment that plaintiff should resign within the year.
On January 25, 2007, plaintiff sent a letter to Mosca, (1) giving his description of the events subject to investigation; (2) noting that he had never received written notice of the allegations against him; (3) stating that Mosca had promised to give him such written notice; and (4) concluding: "As soon as I receive the written allegations that I have been charged with, I will then formulate some sort of response to these allegations for your review."
On January 30, 2007, at the Board's direction, Mosca presented plaintiff with a written settlement agreement and release. Under the terms of that agreement, plaintiff was to accept a ten-day suspension; submit a confidential letter of apology to the offended co-worker; resign effective December 31, 2007; be subject to immediate termination in the event of a future violation; and waive all claims against the County.
The Board next met on February 7, 2007. One hour prior to that meeting, plaintiff's counsel fax'd a letter to Mosca stating: "I represent [plaintiff] with regard to a CEPA claim against Burlington County. Upon receipt of this letter, it is kindly requested that someone contact me to discuss this matter." Neither Mosca nor any Board member responded to this letter. Because plaintiff had not signed the settlement agreement, the Board voted to terminate plaintiff's employment effective immediately.
All of the foregoing was contained in the certifications and exhibits appended to defendants' motion to dismiss. Defendants also alleged that plaintiff had "never made any complaints concerning allegations of improper . . . or illegal conduct . . . against public policy by employees of the County." Defendants argued that plaintiff had raised a CEPA claim only as an effort to avoid disciplinary action and to save his job.
At the outset of oral argument, on April 13, 2007, the judge noted that defendants had moved either to dismiss pursuant to Rule 4:6-2(e) or 4:46-1 which is the summary judgment motion. . . . [T]he first, of course, I can only look at the ...