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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 According to the terms of the January 2002 settlement, all disciplinary charges against plaintiff would be withdrawn or vacated.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. ...