July 16, 2008
L. JOSEPH MINEER, PLAINTIFF-APPELLANT,
SHERIFF JAMES MCGETTIGAN, ATLANTIC COUNTY, ATLANTIC COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2008
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 in conduct which [he] believed . . . to be directly contrary to state and federal law[.]"
Plaintiff also alleges that in October, 2001, he was subjected to "routine petty harassment," including being told that he must "shake everyone's hand" and, if he failed to do so, he would be subject to disciplinary action. Plaintiff alleges that Connelly checked on him "roughly three times a week" while others were not "subject to such surveillance." Plaintiff also asserts that he has been subjected to internal affairs investigations that are "designed to further enhance and cause [him] additional stress in retaliation for his protected conduct[.]"
At some point, plaintiff was re-assigned to the court in Mays Landing. Plaintiff alleges that this assignment is part of the "ongoing and continual retaliatory hostile work environment[.]" Plaintiff asserts that, previously, the unit had been supervised by a captain. Plaintiff says that he is doing the work of a captain and he "is being deprived of the prestige, rank, compensation, and promotional opportunities of a [c]aptain." In addition, plaintiff claims that he as been shunned and ostracized by "a number of individuals[.]"
Plaintiff also claims that Bruno nominated him for a commendation in March 2003, but McGettigan rejected his nomination. He asserts that, in March 2003, McGettigan falsely told another officer that she was being transferred from Mays Landing because he did not want her to "have to put up with" plaintiff.
In addition, McGettigan allegedly continued his "pattern or practice" of "favoring those who support him politically." Plaintiff says that in September 2003, Officer Clint Warren was promoted to the position of chief sheriff's officer. Plaintiff alleges that Warren's promotion "was a direct result of [his] participation in manufacturing and placement of political signs supporting McGettigan's personal political campaign, a task which plaintiff has refused to do."
Plaintiff additionally claims that he has been deprived of certain overtime opportunities. He states that he had been earning overtime by responding to alarm calls at the Mays Landing court house but Warren assumed that responsibility when he was promoted. Plaintiff also claims that the "attempt to ostracize" him has continued.
Plaintiff also says that, in February 2004, Warren informed a new recruit that plaintiff said she had an attitude problem and was not fit to work in the court house. Plaintiff asserts that the statement was knowingly false. Plaintiff claims that, "[b]ased upon the pattern of retaliation and harassment, [he] anticipates that the hostile retaliatory work environment caused by [his] protected conduct will persist in the future."
We turn first to plaintiff's contention that the judge erred by dismissing his constitutional claims. Plaintiff alleges that, by subjecting him to the aforementioned retaliatory actions, defendants violated his rights to free speech and association under Article I, paragraph 6 of the New Jersey Constitution. Plaintiff also alleges that, by denying him of a promotion to captain, defendants deprived him of a property interest without due process of law in violation of Article I, paragraph 1 of our State Constitution.
In a memorandum of decision filed on July 10, 2006, the trial judge concluded that plaintiff's constitutional claims were without merit. The judge wrote:
[P]laintiff has failed to identify the claimed protected speech. He never told the sheriff or others that he was opposed to the sheriff politically. The plaintiff has not shown what the speech is that he claims should be protected. There is also no evidence that retaliatory actions were taken since Plaintiff concedes [that defendants] did not change his job title or modify his salary and benefits. The New Jersey statutes and rules that protect civil servants and classified public employees do not suggest that their breach may give rise to a suit for money damages as opposed to administrative relief. Plaintiff appealed to the Department of Personnel regarding his failure to be promoted, and the DOP determined that the decision was proper. As a result, plaintiff cannot collect damages under New Jersey law since there is no unconstitutional deprivation of Plaintiff's property rights. There is also no evidence from which a reasonable jury could conclude that Plaintiff's job re-assignments, his being issued an older car to drive for a period of time, lack of promotion and other complaints about the alleged events constitute retaliatory action.
In reviewing an order granting summary judgment, we apply the same standard that is applied by the trial court. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Therefore, we must determine whether the evidential materials presented to the trial court raised a genuine issue as to any material fact and whether defendants were entitled to judgment as a matter of law.
R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A. Right of Free Expression.
Plaintiff argues that the judge erred by finding that he "failed to identify the claimed protected speech." Plaintiff maintains that he exercised his right to refuse to engage in political activities in support of McGettigan and, as a result, has been subjected to retaliation. He further contends that his refusal to support McGettigan in his political campaigns related to a matter of public concern and he may not be subjected to adverse employment actions as a result.
Article I, paragraph 6 of our Constitution provides that, "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." The New Jersey courts rely upon federal constitutional principles in interpreting the free speech clause of our Constitution. Karins v. City of Atl. City, 152 N.J. 532, 547 (1998).
"[T]he First Amendment was designed to assure that debate on matters of public importance is uninhibited, and wide open[.]" Ibid. (citing Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed. 2d 1498, 1506 (1957)). Nevertheless, "that amendment's guarantees have never been absolute." Ibid. Exceptions to the guarantees "have been carved out" and, in each exception, "the right of free expression must be balanced against some competing governmental interest." Ibid. The exception for the exercise of free speech by public employees requires "the balancing of [their] freedom of expression against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 547-48.
In Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed. 2d 811 (1968), the Supreme Court considered whether a teacher could be disciplined for criticizing the board of education and the superintendent of schools for failing to raise sufficient revenue for the schools. Id. at 566-67, 88 S.Ct. at 1733-34, 20 L.Ed. 2d at 815-16. The Court held that a public employee does not relinquish his or her First Amendment rights when the employee accepts a governmental job. Id. at 568, 88 S.Ct. at 1734-35, 20 L.Ed. 2d at 817. However, it is necessary to balance the employees' interests "as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Ibid. The Court observed that if "the fact of employment is only tangentially and insubstantially involved in the subject matter of the [employee's] communication," the employee should be considered to be a "member of the general public[.]" Id. at 573-74, 88 S.Ct. at 1737-38, 20 L.Ed. 2d at 820-21.
The Court in Pickering held that the teacher's letter did not impede his ability to perform his duties. Moreover, the Court stated that the school's interest "in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public." Id. at 573, 88 S.Ct. at 1737, 20 L.Ed. 2d at 820. Therefore, the court held that the school board could not discipline the teacher for writing the letter and submitting it to the local newspaper for publication. Id. at 574-75, 88 S.Ct. at 1738, 20 L.Ed. 2d at 821.
The Supreme Court addressed these issues again in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed. 2d 708 (1983). In that case, an assistant district attorney was discharged because he circulated a questionnaire to fellow staff members concerning the internal affairs of the office. Id. at 141, 103 S.Ct. at 1687, 75 L.Ed. 2d at 716. The Court found that the attorney's questionnaire touched on matters of public interest but did so only in a limited way. Moreover, the employee's interest in exercising her right of free expression was outweighed by the government's interest in the efficient operation of the office. The Court noted that the employee's action could be disruptive, undermine authority and impede effective working relationships. Id. at 154, 103 S.Ct. at 1693-94, 75 L.Ed. 2d at 724.
Here, the trial court erred by finding that plaintiff had not identified the "claimed protected speech." The judge stated that plaintiff had never informed McGettigan or anyone else that he was opposed to him politically. However, as we understand plaintiff's complaint, he is not alleging that he was denied a promotion and was subjected to other significant adverse employment actions because he publicly opposed McGettigan's candidacy or supported another candidate. Rather, he is alleging that he was subjected to retaliation because he refused to contribute money and attend events intended to advance McGettigan's political interests.
Our Constitution not only protects an individual's right to speak freely. It also protects an individual's right "to refrain from speaking at all." In re Trenton Bd. of Educ., 176 N.J. Super. 553, 565 (App. Div. 1980), aff'd, 86 N.J. 327 (1981). Thus, our Constitution protects plaintiff's right to support a particular candidate for public office. It also protects his right to refrain from doing so. Moreover, because plaintiff did not want to contribute money or participate in any political activities on behalf of McGettigan, it cannot be said that his actions were in any sense disruptive of the operations of the ACSD.
Defendants argue that plaintiff's political leanings were a private matter. We disagree. Plaintiff's political views may have been personal but they touched upon a matter of general public concern, that is, the election of the Sheriff in Atlantic County.
Therefore, we conclude that plaintiff had an interest in refraining from engaging in political activities on behalf of McGettigan that is protected by Article I, paragraph 6 of the New Jersey Constitution. We further conclude that he could not be subject to retaliation such as the denial of a promotion or other significant adverse employment actions for exercising that constitutional right.
This conclusion is supported by the Supreme Court's decision in Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed. 2d 52 (1990). At issue in that case was a political patronage system implemented by the Governor of Illinois that "limit[ed] state employment and beneficial employment-related decisions" to supporters of the Republican Party. Id. at 66, 110 S.Ct. at 2732, 111 L.Ed. 2d at 61. The Court held that it was unconstitutional to base decisions to hire, promote, recall and transfer low-level public employees on party affiliations. Id. at 65, 110 S.Ct. at 2732, 111 L.Ed. 2d at 60.
In Rutan, the Court rejected the contention that the decisions at issue did not adversely affect the terms of employment or chill the exercise by the public employees of their beliefs and association. Id. at 73, 110 S.Ct. at 2736, 111 L.Ed. 2d at 65. The Court stated that:
[e]mployees who find themselves in dead-end positions due to their political backgrounds are adversely affected. They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder. Employees denied transfers to workplaces reasonably close to their homes until they join and work for the Republican Party will feel a daily pressure from their long commutes to do so. And employees who have been laid off may well feel compelled to engage in whatever political activity is necessary to regain regular paychecks and positions corresponding to their skill and experience. [Id. at 73, 110 S.Ct. at 2736, 111 L.Ed. 2d at 66.]
The Court stated that the patronage practices violated the First Amendment because they were not "narrowly tailored to further vital governmental interests[.]" Id. at 74, 110 S.Ct. at 2736, 111 L.Ed. 2d at 66.
Although we conclude that plaintiff has a protected interest in refusing to give money and participate in events designed to advance McGettigan's political interests, there remain genuine issues of material fact regarding plaintiff's claims. It is unclear on this record whether the activities at issue were, in fact, political events for McGettigan's campaign or merely activities designed to enhance the public's perception of the ACSD. Moreover, plaintiff alleges that he was subjected to retaliation because he refused to support McGettigan's political campaigns. However, defendants deny that this is the case. Indeed, McGettigan may have had legitimate reasons for refusing to promote plaintiff, for transferring him to other locations, and taking the other actions about which plaintiff complains. There are also genuine issues of fact as to whether plaintiff's transfers resulted in less favorable working conditions and the loss of promotional opportunities.*fn1
Accordingly, we conclude that the trial court erred by granting summary judgment to defendants on plaintiff's claim that he was subjected to adverse employment actions in violation of his rights to free speech under our State Constitution.
B. Due Process Claim
Plaintiff next argues that the trial court erred by granting defendants summary judgment on his due process claim. Plaintiff alleges that he has been deprived of certain property rights in violation of Article I, paragraph 1 of our State Constitution, which provides that, "[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."
Plaintiff asserts that he has a property interest in "continued employment." However, plaintiff does not claim that he has been denied employment. Rather, plaintiff alleges that he has been denied a promotion to a position as captain. Plaintiff has not cited any authority to support his contention that he has a property interest in such a promotion. Therefore, we are convinced that the trial court correctly found that plaintiff does not have a valid due process claim for money damages arising from the denial of his promotion.
The trial court's decision on this issue is consistent with Ferraro v. City of Long Branch, 314 N.J. Super. 268 (App. Div. 1998), where we held that a civil servant, who was not discharged and did not suffer a reduction in pay or rank and status in the civil service system, did not suffer a deprivation of a constitutionally protected property interest. Id. at 283-84. Furthermore, in Ferraro, we held that, although New Jersey's civil service statutes and rules protect classified employees, a breach of those statutes or rules does not "give rise to a suit for money damages as opposed to administrative relief." Id. at 286.
We therefore conclude that the trial court correctly determined that defendants were entitled to judgment on plaintiff's due process claim.
We turn to plaintiff's contention that the judge erred by granting summary judgment to defendants on his CEPA claim. The trial court found that plaintiff failed to file his CEPA claim within one year of the last date of a retaliatory action, as required by N.J.S.A. 34:19-5.
We are convinced that the trial court erred by finding that plaintiff's CEPA claim was barred by the statute of limitations. In reaching that conclusion, the judge only considered the three alleged retaliatory actions that occurred within the one-year period prior to the filing of the complaint. The judge failed to consider whether those three acts were part of a continuing course of unlawful retaliatory conduct.
In Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003), our Supreme Court held that the "continuous violation doctrine" applies in determining whether a plaintiff's CEPA claim has been filed within the statute's one-year statute of limitations. Id. at 446-48. In Shepard v. Hunterdon Development Ctr., 174 N.J. 803 (2002), the Court applied that doctrine to a hostile work environment claim brought under the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. There, the Court noted that:
A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice." . . . It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside of the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
That act need not, however, be the last act. As long as the employer has engaged in enough activity to make out an actionable hostile work environment claim, an unlawful employment practice has "occurred," even if it is still occurring. Subsequent events, however, may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole.
[Id. at 19-20 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-17, 122 S.Ct. 2061, 2073-74, 153 L.Ed. 2d 106, 123-25 (2002)).]
In Green, the Court stated that "retaliation" as defined in CEPA "need not be a single discrete action." Green, supra, 177 N.J. at 448. Rather, a retaliatory action may 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." Ibid.
Therefore, in deciding whether plaintiff's CEPA claim was filed within the time prescribed by the CEPA statute of limitations, we must determine whether plaintiff has presented sufficient evidence to establish that he was subject to a continuing "pattern of retaliatory conduct" in violation of CEPA. If so, we must determine whether "some of the component acts" of the alleged "pattern of retaliatory conduct" occurred in the statutory time period.
Defendants argue that the three alleged retaliatory acts of retaliation that occurred within the one-year period prior to the filing of the complaint were "isolated and sporadic" incidents and are insufficient to trigger the continuing violation doctrine. They further contend that the three alleged acts do not constitute "retaliatory action" under CEPA.
Contrary to defendants' arguments, that issue cannot be resolved as a matter of law. There is a genuine issue of material fact as to whether in the year prior to filing his complaint, plaintiff was subjected to one or more adverse employment actions that arose from plaintiff's refusal to contribute money and participate in activities designed to advance McGettigan's political interests, and whether any such act or acts were a part of a "pattern of retaliatory conduct."
As noted previously, the first alleged retaliatory act that occurred in the one-year limitations period was Warren's promotion to the position of chief sheriff's officer. Plaintiff alleges Warren was promoted because he supported McGettigan in his political campaigns. Plaintiff claims that Warren's promotion was a part of a continuing campaign to deny him a promotion because he has consistently refused to lend political support to McGettigan.
The second alleged act of retaliation concerns the denial of opportunities for overtime that occasionally arose from the need to respond to alarms at the Mays Landing court facilities. Plaintiff alleges that, after Warren was promoted, Warren responded to the alarms. Defendants assert that the delegation of these responsibilities to Warren was simply a "cost-saving" measure. Plaintiff insists, however, that McGettigan's action "[took] money out of [his] pocket."
The third act of alleged retaliation that occurred in the limitations period involves a claim that Warren informed a new recruit at the Mays Landing Court House that plaintiff had complained about her. Plaintiff asserts that Warren's statement was not true and it was part of a continuing attempt to ostracize him from his co-workers.
Standing alone, these three acts would not be sufficient to support a CEPA claim. A "retaliatory action" is defined in CEPA 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). Therefore, "'employer actions that fall short of [discharge, suspension, or demotion], may nonetheless be the equivalent of an adverse action.'" Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433 (App. Div. 2005) (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003)).
Plaintiff has not presented sufficient evidence to establish that Warren's promotion to chief sheriff's officer was an adverse employment action directed at him. Indeed, Warren was not promoted to captain and plaintiff has not alleged that he was wrongfully denied a promotion to a position as chief sheriff's officer. Plaintiff also conceded at his deposition that Warren's promotion affected all of the officers who were seeking promotions at the time. Furthermore, the fact that Warren was assigned to respond to the alarm calls at the court house after his promotion does not rise to the level of an adverse employment action and there is no evidence that the assignment of the duties to Warren was an action directed at plaintiff. In addition, Warren's alleged statement that plaintiff had spoken ill of a new recruit is not an adverse employment action under CEPA. Plaintiff may have been displeased by Warren's remark but "not every employment action that makes an employee unhappy constitutes 'an actionable adverse action.'" Ibid. (quoting Cokus, supra, 362 N.J. Super. at 378).
Nevertheless, for purposes of determining whether the continuous violation doctrine applies, these three acts cannot be viewed in isolation. They must be viewed in relation to all of the other alleged acts of retaliation. In our view, a reasonable fact-finder could find that some or all of the three acts were a part of a continuing course of retaliatory action. However, if the fact-finder determines that these incidents were, in fact, discrete and sporadic events and not part of "a pattern of retaliatory action," plaintiff's CEPA claim fails and defendants would be entitled judgment on that claim.
Defendants additionally argue that plaintiff's claim is not cognizable under CEPA because his alleged refusal to contribute money and participate in political activities on behalf of McGettigan is a purely personal matter that does not implicate any statute or law or any "clear mandate of public policy." Again, we disagree.
CEPA prohibits an employer from taking retaliatory action against an employee because the employee:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to a law . . . .
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. [Green, supra, 177 N.J. at 441 (quoting N.J.S.A. 34:19-3).]
To prevail on a CEPA claim, a plaintiff need not show that the employer or a fellow employee actually violated the law or a clear mandate of public policy. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Rather, the plaintiff must show that he "'reasonably believes' that to be the case." Ibid. (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000)). When considering a CEPA claim, "the trial court must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct." Id. at 463.
As we pointed out previously, plaintiff has a right under the State Constitution to freedom of expression, which protects him from being compelled to engage in political activities in support of a candidate for public office. Plaintiff has presented sufficient evidence to raise a genuine issue of material fact as to whether plaintiff reasonably believed that he could not be compelled to engage in political activities on behalf of McGettigan.
We add that, in his complaint, plaintiff claims that he objected to the hiring of an investigator who was a friend of the McGettigan family and who previously had been arrested. Plaintiff has not cited any statute, rule, regulation or mandate of public policy that was violated by the hiring of that individual. Indeed, in his appeal plaintiff has not relied upon these facts as support for his CEPA claim. Rather, plaintiff's CEPA claim is primarily based on the retaliation to which he was allegedly subjected for refusing to support McGettigan in his political campaign.
Affirmed in part, reversed in part, and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.