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Porter v. New Jersey State Police

October 28, 2008

MICHAEL PORTER, PLAINTIFF-APPELLANT,
v.
NEW JERSEY STATE POLICE, STATE OF NEW JERSEY, CAPTAIN ERNEST VOLKMAN (RET.), LIEUTENANT KENNETH WONDRACK, CAPTAIN THOMAS DREHER, JR., LIEUTENANT JOHN MAZUR, AND LIEUTENANT EDWARD RODGERS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3615-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiff Michael Porter is a retired sergeant of the New Jersey State Police. He appeals from a summary judgment dismissing his multiple claims against the State Police and various individuals, in which he alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and other common law causes of action. We affirm.

Plaintiff joined the New Jersey State Police in 1979. In 1993, he was promoted to squad sergeant. In 1998, he was promoted to staff sergeant and remained at that position until his retirement in August 2004.

In September 1996, plaintiff met with Sgt. McNamara, Trooper Chaytrak, Trooper Manufo and Sgt. Dages to discuss Dages's alleged manipulation of overtime pay. Plaintiff attended the meeting because he claimed that Dages was falsifying his time reports and wanted to discuss this with McNamara, who administered the overtime. Prior to the meeting, plaintiff approached Dages about the allegations, and Dages said he wanted to work it out. At the meeting, however, plaintiff accused Dages of misappropriating his time on the weekly reports. Dages told plaintiff: "I'll change my weekly, you can suck my dick."

As a result of Dages's statement, plaintiff filed an internal complaint with the Internal Affairs Bureau (IAB). Dages filed a complaint against plaintiff for harassing him about the overtime.

Captain Earnest Volkmann, the IAB bureau chief, recommended that the complaints be sent to mediation. Accordingly, on November 12, 1996, a mediation was held with plaintiff, Dages, Volkmann, and Sgt. Rodgers, the acting station commander. Volkmann was the mediator. The goal of the mediation was to have both parties drop their complaints to avoid discipline or an IAB investigation.

Volkmann testified that during the mediation, Dages admitted to making the "suck my dick" comment to plaintiff. Volkmann considered the comment to be inappropriate, but not to warrant discipline. He further testified that during the meeting, Dages attempted to apologize to plaintiff, but plaintiff would not accept the apology. Although plaintiff insisted that an IAB investigation was warranted, the parties nevertheless agreed that the issues had been resolved and that no IAB investigation would be necessary. Following the mediation, no disciplinary action was taken as to plaintiff or Dages, and there were no further incidents between them.

Approximately ten months after the incident with Dages, plaintiff was transferred from the Bloomfield station to the Holmdel station. In October 1997, Lt. John Mazur became the station commander in Holmdel. Plaintiff remained in the Holmdel station for five years; he was on sick leave for one and one-half years of that time.

While stationed at Holmdel, plaintiff was required to be evaluated twice a year. Mazur first evaluated him for the period of November 1, 1997, to April 30, 1998, recommending him for promotion. Mazur testified, however, that so long as everyone passed the physical or did not sign-off on the physical, and there were no pending disciplinary actions against the officer, everyone was recommended for promotion.

Mazur's second evaluation of plaintiff was for the period May 1, 1998, to October 31, 1998. The evaluation was positive, but Mazur did not recommend plaintiff for promotion because plaintiff failed his yearly physical examination.

On September 17, 1998, at the request of the troop commander, Mazur prepared a "Promotional Ranking of Qualified Personnel," a list ranking sergeants. Mazur listed plaintiff first because he had the most time as sergeant and because he had "excellent supervisory and motivational skills." From the list, plaintiff was promoted ...


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