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Maslow v. Latorre


November 17, 2008


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5620-05.

Per curiam.


Submitted October 28, 2008

Before Judges Skillman and Grall.

Plaintiff is a police officer employed by the Atlantic City Police Department under a collective bargaining agreement. On September 7, 2004, plaintiff filed a labor grievance pertaining to scheduling and overtime pay. Thereafter, plaintiff was notified that he was being transferred from an evening shift to a day shift unit within the police department. In response, on September 30, 2004, plaintiff wrote a letter stating that Captain Latorre, who had made the decision to transfer him, "understands fully that I own and run a small Contractor business that would preclude me from working those hours," and alleging that "[i]t is transparent that this maneuver is retaliation for me exercising my right to the Grievance process." Soon thereafter, Latorre transferred plaintiff to another work unit and changed his shift to day hours. This transfer was retracted, but plaintiff was transferred three more times during the next three months, which eventually resulted in his transfer out of his former Bravo motorcycle unit into the Uniform Patrol Division, working a day shift.

Plaintiff subsequently filed this action against Atlantic City, Captain Latorre and Arthur Snellbaker, the Atlantic City Chief of Police, asserting that his transfer violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, because it was made in retaliation for his labor grievance and his September 30, 2004 letter alleging that the reason for his transfer was retaliatory.

Defendant moved to dismiss. The trial court granted this motion, initially on the ground that plaintiff's claim was preempted by the National Labor Relations Act (NLRA), 29 U.S.C. §§151-169. On plaintiff's motion for reconsideration, the trial court recognized that the NLRA does not govern plaintiff's employment relationship with Atlantic City because he is a public employee. However, the court reaffirmed the dismissal of plaintiff's complaint on the ground that it fails to state a claim under CEPA. In reaching this conclusion, the court stated:

Plaintiff was a public employee (a police officer) working under the provisions of a collective bargaining agreement that explicitly provided for a grievance procedure. The complaint does not allege that the grievance related to any "activity, policy or practice of the employer . . . that [Plaintiff] reasonably believe[d] was in violation of a law or regulation promulgated pursuant to law." Cf. N.J.S.A. 34:19-3.

There is nothing in Plaintiff's allegations to suggest that the grievance that he filed related to anything other than a "labor issue" grounded in the provisions of the collective bargaining agreement. If Plaintiff's position were correct, every reaction by an employer to the filing of a grievance would form the basis for a potential CEPA claim; that, in my view, is not the kind of "conscientious" employee conduct that CEPA was designed to protect.

CEPA's explicit language is designed to prevent retaliation, in the form of an "adverse employment action," for "protected" conduct that is defined in the statute. Plaintiff's complaint would expand the concept of "protected conduct" to any action by the employee that results in an "adverse employment action." CEPA, on the other hand, provides specific definitions for the kind of "protected" conduct that can serve as the factual foundation for a claim: the employee must be complaining about conduct (of the employer) that the employee reasonably believes constituted a violation of law or a regulation promulgated pursuant to law, or a clear mandate of public policy. In this instance, Plaintiff asserts that Defendant retaliated against him for filing a grievance with regard to a "labor issue." CEPA was not designed or written to extend to a complaint of this nature. The premise of the statute was to protect employees who act, or who reasonably believe that they act, to protect the public interest, rather than simply pursuing a grievance (however meritorious) under a collective bargaining agreement.

Having concluded that plaintiff's complaint did not state a claim under CEPA, the trial court did not address defendant's alternative argument that plaintiff's claim was within the exclusive jurisdiction of the Public Employee Relations Commission established under the Employer-Employee Relations Act. N.J.S.A. 34:13A-1 to -30.

We affirm the judgment dismissing plaintiff's complaint substantially for the reasons set forth in the trial court's February 15, 2008 written opinion denying plaintiff's motion for reconsideration. We also note that the dismissal of plaintiff's complaint is supported by Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998), in which the Court stated that "[a] salutary limiting principle [of a CEPA claim] is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." Accord Cosgrove v. Cranford Bd. of Educ., 356 N.J. Super. 518, 525 (App. Div. 2003) (affirming dismissal of CEPA claim by school employee who filed a grievance seeking additional overtime work); see also Alexander v. Kay Finlay Jewelers, Inc., 208 N.J. Super. 503, 507-08 (App. Div.), certif. denied, 104 N.J. 466 (1986).



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