July 15, 2008
JOSEPH KAYATI, PLAINTIFF-APPELLANT,
BOROUGH OF CHESILHURST, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4413-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 1, 2008
Before Judges Cuff and Fuentes.
In 1998, plaintiff filed a civil action in federal district court in which he alleged that the Borough of Chesilhurst (Chesilhurst) and certain superior officers in the Chesilhurst Police Department discriminated against him. On or about January 21, 2002, the parties settled this claim. On August 11, 2004, plaintiff filed an action in State court in which he alleged that defendant retaliated against him for having sought redress for earlier discriminatory conduct. Plaintiff appeals an order granting summary judgment in favor of defendant Chesilhurst.
Plaintiff is a retired police officer of Chesilhurst. According to the terms of the January 2002 settlement, all disciplinary charges against plaintiff would be withdrawn or vacated. Plaintiff was to be reinstated, and he would promptly tender his resignation and submit an application for an accidental disability pension. The resignation was to be held pending disposition of the disability retirement pension.
Plaintiff submitted the pension application. On July 16, 2002, the Division of Pensions requested defendant to execute an employer's certification. Defendant failed to respond to this notice and three other notices. Eventually, defendant submitted the requisite information and the Division of Pensions granted the application. Plaintiff received retroactive benefits.
According to plaintiff, a retiring officer also receives a retirement identification card and a completed firearms training log in order to obtain a permit to carry a weapon. He alleged that defendant failed to provide the identification card and log to him on a timely basis. Defendant asserted that the delay in providing the necessary information to the Division of Pensions and the delay in providing the identification and firearms training log were acts in retaliation for his earlier discrimination complaint.
The motion judge granted defendant's motion for summary judgment and dismissed plaintiff's complaint. The judge recognized that the prior litigation was a protected activity and the employer knew plaintiff had engaged in a protected activity. The judge also acknowledged that the requisite adverse employment action is not confined to loss of a job or a demotion or a diminution of salary. The judge held, however, that the delays experienced by plaintiff could not be considered an adverse employment action by the employer. In fact, the action cited by plaintiff "trivializes the retaliation clause in the LAD*fn1 provision."
Plaintiff also alleged that defendant certified to the Division of Pensions an incorrect final salary that deprived him of a higher monthly pension benefit and the erroneous information was an act of retaliation. The judge found no direct or circumstantial evidence of retaliation. Rather, he found that the amount of the benefit was directly related to the base pay about which there was a dispute that was ultimately resolved by the Division of Pensions. Plaintiff's motion for reconsideration was also denied.
On appeal, plaintiff argues that the motion judge made factual determinations in his ruling and improperly dismissed plaintiff's complaint. We disagree and affirm.
This court applies the same standard as the motion judge when we review an order granting summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That is, we review the record to determine the existence of any genuine issue of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In doing so, we view the facts and all reasonable inferences raised by the facts in the light most favorable to the moving party. Ibid. Based on this factual analysis, we determine if the moving party is entitled to judgment as a matter of law. Ibid.
To prove a retaliation claim under the LAD, plaintiff must establish four elements: 1) he engaged in a protected activity known by the employer; 2) thereafter his employer unlawfully retaliated against him; and 3) his participation in the protected activity caused the retaliation. Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990)). Here, it is undisputed that the prior federal litigation alleging discriminatory treatment by his employer met the first prong of the test. The appropriate focus is whether plaintiff suffered any adverse employment action, and if so, whether there was a causal link between the protected activity and the adverse action.
It is now firmly established that an adverse employment action can be something less than a termination, demotion or salary reduction. A withdrawal of benefits formerly provided to an employee may, in some circumstances, constitute an adverse employment action. Burlington No. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 2414-15, 165 L.Ed. 2d 345, 359 (2006); Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002), aff'd as modified, 179 N.J. 425 (2004); Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 419 (App. Div. 2001), aff'd in part, rev'd in part, 174 N.J. 1 (2002). See Maimone v. City of Atl. City, 188 N.J. 221, 235-36 (2006) (construing the requirement of an adverse employment action in CEPA*fn2 ); Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-36 (App. Div. 2005) (same). A combination of relatively minor instances of negative behavior directed to an employee may reveal a pattern of retaliatory behavior. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 438-39 (2003).
In Maimone, supra, the plaintiff's transfer from one position to another that resulted in a reduction in compensation and a loss of other benefits was sufficient to establish an adverse employment action under CEPA. 188 N.J. at 236. In Nardello, supra, the claimed denial of permission to obtain firearms instructor training to allow continued assignment to a SWAT team, the claimed coerced resignation as leader and a member of a SWAT team, the claimed refusal by supervisors to allow the plaintiff to work on crime prevention programs, and the assignment to jobs not commensurate with the plaintiff's senior rank collectively raised a jury question of the existence of retaliatory conduct. 377 N.J. Super. at 435-36. Finally, in Burlington Northern, supra, exclusion of an employee from a weekly training lunch that contributes to advancement and other negative action taken against the employee was considered sufficient to establish a prima facie case of retaliatory conduct that produced an injury or harm. 548 U.S. at 69, 126 S.Ct. at 2415-16, 165 L.Ed. 2d at 360.
It is noteworthy that each of the cases relied on by plaintiff involve a continuing employment relationship. Here, plaintiff severed the on-going employment relationship by retiring from public employment and plaintiff submits no cases of post-employment retaliatory conduct. Of greater significance, plaintiff cannot demonstrate any conduct that caused him harm.
The cluster or pattern of retaliatory conduct presented by plaintiff consists of four elements: 1) delay in submission of the employer's certification, 2) delay in sending his firearms training log, 3) delay in sending his identification as a retired police officer, and 4) the provision of erroneous final salary data. Plaintiff asserts the delays caused him monetary harm and denied him benefits enjoyed by retired police officers. The record reveals that these incidents, singly or in combination, do not establish retaliatory conduct.
A retirement application must contain information regarding the last date of service and the base pay on that date. The application must also be accompanied by an employer's certification to verify this required information.
The record demonstrates that plaintiff's last date of service was June 30, 1998, and his base pay at that time was $25,752. The settlement agreement provided that plaintiff would be reinstated, he would retire and his last date of service would be June 30, 2002. This provision would render his application for disability retirement pension timely. See N.J.S.A. 43:15A-43 (establishing five-year statute of limitations within which to file an application for an accidental disability retirement pension). Nevertheless, when he filed his application, he listed his last date of service as June 30, 1998, and the application was initially rejected as untimely. This caused some delay.
Admittedly, the employer's certification was not submitted to the Division of Pensions with any proof of delivery. It is undisputed, however, that the certification was received during the summer when Chesilhurst office personnel worked only four days a week. Eliminating weekends, holidays and Fridays, when the offices were closed, the required certification remained unanswered and unsubmitted for twenty-six days. Certainly, Chesilhurst should not be commended for the responsiveness to the needs of its employees, but standing alone, the delay does not demonstrate a negative animus towards defendant.
Moreover, plaintiff can demonstrate no harm to him. Plaintiff sought an accidental disability pension. An applicant for such a pension must meet the stringent qualifications for this type of pension. Plaintiff has submitted no evidence that any action by defendant caused any delay in the ultimate disposition of his application.
Plaintiff argues that defendant submitted erroneous information concerning his base pay that affected the amount of his monthly benefit. The record demonstrates, however, that plaintiff misperceived the effect of altering the service date. The alteration did not entitle him to the base pay in effect on June 30, 2002. He was entitled only to the base pay on the last date of actual service and on which he and his employer had submitted contributions.
Finally, we concur with the assessment of the motion judge that the delay in transmission of the firearms log and identification card, singly and in combination, cannot be considered retaliatory conduct. Any delay in obtaining these documents is hardly commensurate with the denial of requisite training opportunities to allow advancement in a chosen endeavor. We, therefore, affirm the order granting defendant's motion for summary judgment, and the order denying plaintiff's motion for reconsideration.