On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-392-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and LeWinn.
Plaintiff L. Joseph Mineer is an officer in the Atlantic County Sheriff's Department (ACSD). On June 30, 2004, plaintiff filed a complaint against defendants James McGettigan, the Atlantic County Sheriff, and the ACSD, alleging that he had been denied a promotion and subjected to a hostile and retaliatory work environment in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and his rights under the New Jersey Constitution. Plaintiff appeals from orders entered by the trial court dismissing his claims with prejudice. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
Plaintiff has been employed in the ACSD for over twenty-years. He has served under McGettigan since January 1994. Plaintiff had been assigned to the Fugitive Squad, which plaintiff says is "a highly prestigious component" of the ACSD. Plaintiff alleges that in 1997 or 1998, McGettigan hired an investigator who was to be assigned to the Fugitive Squad. According to plaintiff, the investigator had previously been arrested on a bad check charge and was admitted to a pretrial intervention program.
Plaintiff claims that the investigator was hired because he was a friend of the McGettigan family. Plaintiff advised Undersheriff Connelly that he "disapproved" of the hiring of the investigator. Plaintiff told Connelly that he believed that the hiring of an individual "with such a record" to work in a law enforcement agency "was either contrary to law or . . . the clear public policy of the State of New Jersey and Atlantic County[.]"
In November 1999, McGettigan ran for re-election. According to plaintiff, McGettigan required funds and campaign "volunteers" from employees of the ACSD to advance his "personal political interests." Plaintiff declined to contribute money or his services to McGettigan's re-election campaign. He alleges that McGettigan was angered and harbored animosity towards him for exercising his rights to free expression and affiliation.
Plaintiff additionally alleges that, beginning in January 2000, Connelly began to ask plaintiff's fellow officers and others in the Fugitive Squad whether plaintiff was "suicidal." Plaintiff claims that Connelly communicated to plaintiff's fellow officers and employees that he was "in disfavor" with McGettigan. This allegedly caused plaintiff's co-workers to shun and ostracize him. Plaintiff claims that "[t]he campaign to create a hostile and retaliatory work environment" was effective and his fellow workers began to regard him as a man on the "outs." He says that a magazine photo of a man being eaten by rats was affixed to a calendar in his office. His name was written on the photo.
Plaintiff alleges that in February 2000, he was involuntarily transferred to the Mays Landing court and transportation unit. Plaintiff asserts that Mays Landing was a "less prestigious" post and offered him no opportunity for professional advancement. According to plaintiff, Connelly falsely stated that he had been transferred to Mays Landing because the officers in plaintiff's unit could not work under his supervision and their "high level work output and dedication" was not sufficient to overcome the problems that plaintiff caused. Plaintiff claims that these reasons were "pretextual."
Plaintiff asserts that he became "irate" because of the transfer to Mays Landing. He considered the transfer to be a "de facto demotion." According to plaintiff, after the transfer, McGettigan met with the members of the Fugitive Squad and "attempted to mollify" the officers by promising to provide them with new equipment, vehicles, and additional privileges that plaintiff had tried to obtain for them but which upper management had previously refused to provide. Plaintiff alleges that McGettigan and Connelly "clearly communicated" to his co-workers that he was "on the outs" with upper management by providing the squad with those items.
As further evidence of McGettigan's "animosity and ill-will" toward him, plaintiff alleges that on March 25, 2000, a sheriff's officer, Salvatore Rodio, assaulted him and another officer in a parking lot of a tavern. Plaintiff claims that, during the fight, "several people" restrained him and he could not defend himself. He asserts that another officer, Anthony Coccaro, also assaulted him.
Plaintiff says that, although Rodio's and Coccaro's conduct "merited a very harsh sanction," McGettigan took no action. Thereafter, McGettigan promoted Rodio to captain, and plaintiff was transferred to the Atlantic County Court House, which plaintiff said was generally regarded as a "dumping ground" or "punishment post."
According to the complaint, in January 2001, McGettigan met with all of the lieutenants in his department, which included plaintiff, Rodio, Bruce Harbison, Joseph Bruno, Raymond Coleman, and Steven Caldwell. McGettigan told the group that they would all be promoted to positions as captains, subject to the approval of the County Executive. Plaintiff claims that, after McGettigan made that announcement, he said, "[n]ow that I am going to do that for you, I expect you to do this for me[.]"
Plaintiff alleges that McGettigan opened a door to a cabinet and removed a pad that contained a list of "literally scores of upcoming social and political events[.]" Plaintiff asserts that McGettigan told the group that he expected them to attend those events after working hours and on weekends "without overtime compensation[.]" Plaintiff alleges that the events were "part and parcel of McGettigan's election campaign[.]"
Plaintiff allegedly was the only lieutenant present at the meeting who refused to participate in or support what plaintiff claims were McGettigan's "political activities[.]" Plaintiff asserts that he "refused to participate in what he believed to be a violation of law and a violation of his New Jersey constitutional right[s] of free association, free political affiliation, and free speech."
Plaintiff says that, in February 2001, after it became known that he had refused to participate in McGettigan's campaign events, McGettigan announced that the promotions to captain "would not be happening[.]" McGettigan allegedly stated that the County Executive would not approve the promotions.
Thereafter, McGettigan told the five lieutenants that only four would be made captains and the lieutenants would have to decide for themselves who would get the promotions. The group decided that McGettigan should make the decisions. McGettigan and Connelly returned to the room and the lieutenants were advised of their "rankings." Plaintiff says that, if the promotions were made based on those rankings, he would be promoted and Coleman would not.
Plaintiff claims that McGettigan adjourned the meeting but, before doing so, stated that anyone who was not promoted at that time would be promoted when the positions became available. McGettigan also allegedly stated that he would not promote any sergeant to lieutenant until both plaintiff and Caldwell were promoted to captain.
According to plaintiff, a civil service examination for promotion to captain was scheduled for April 26, 2001. However, on April 25, 2001, plaintiff was told that the test had been postponed because McGettigan had obtained a "waiver" from the State Department of Personnel (DOP).
Plaintiff contacted the DOP and was told that, pursuant to the waiver request, four lieutenants (Harbison, Bruno, Rodio and Coleman) would be promoted. Plaintiff claims that, in a staff meeting that took place in June 2001, McGettigan told the lieutenants that, because plaintiff had more seniority than Coleman, plaintiff would be promoted.
Plaintiff asserts that, "[s]oon thereafter," Bruno came to him and asked whether plaintiff would "work" some of the weekend and evening events, as McGettigan had previously requested. Plaintiff refused. Plaintiff alleges that, the following month, McGettigan stated that the County would not provide funds for the captains' positions. McGettigan also allegedly stated that the DOP would be scheduling a "captain's test."
Plaintiff asserts that the following Saturday morning, he received correspondence from the DOP which informed him that the promotions were made in April 2001. According to plaintiff, Bruno, Rodio and Coleman had been promoted to captain. In addition, Harbison, who had been acting chief, was promoted to chief. Plaintiff asserts that he was the only person with the rank of lieutenant who was not promoted. He says that he was the only officer who had refused to participate in "McGettigan's political endeavors."
Thereafter, plaintiff was transferred to the Atlantic County court house and allegedly "stripped of any commanding role." Plaintiff says that he was deprived of an assigned county car, which previously had been provided to him. Upon reporting to duty under Coleman, plaintiff was assigned to the "worst" car in the department. He also claims that the vehicle was assigned for general use rather than assigned to him for his "excusive use[.]"
Plaintiff asserts that a hostile work environment continued to exist and his efforts to obtain a promotion or personal advancement were continually blocked. He says that he continues to be denied "prestigious assignments, despite [his] qualification for same, all as a direct and proximate result of [his] objection to and refusal to engage ...