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Eddy v. State

December 8, 2008


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2106-07.

Per curiam.


Argued November 3, 2008

Before Judges Carchman and Sabatino.

Plaintiff Kevin Thomas Eddy, a New Jersey State Police Sergeant assigned to the Marine Services Bureau, brought an action pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, claiming that he was retaliated against for his objections to the reduction of overtime and manpower at the Atlantic City station where he was assigned. Following a change of venue from the Law Division in Cape May County to the Law Division in Mercer County and the filing of an answer, defendants the State of New Jersey and the New Jersey State Police filed a motion to dismiss for failure to state a cause of action, R. 4:6-2(e). The motion judge granted the motion, and plaintiff appeals. We affirm.

Because the motion to dismiss was considered on the pleadings, the motion judge was obligated "to assume the truthfulness of the allegations contained in plaintiffs' complaints, giving plaintiffs the benefit of all reasonable factual inferences that those allegations support." Edwards v. Prudential Property and Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003)(citing F.G. v. MacDonell, 150 N.J. 550, 556 (1997)). In our review, we are obligated to analyze "the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005) (citing Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)). With this standard in mind, we state the relevant facts as set forth in the complaint.

Plaintiff, a member of the State Police since June 1986, held the position of Squad Supervisor/Leader. In January of 2000, plaintiff was promoted to the rank of Sergeant and then given the designation of Staff Sergeant in August 2001. This designation to Staff Sergeant resulted in an increase in pay and a change in uniform insignia, and was viewed by rank and file troopers as a promotion.

In August 2004, plaintiff was assigned to the Atlantic City Station of the Marine Services Bureau. That same month on August 21, 2004, Sergeant First Class Simmermon*fn1 made the reduction of overtime a priority at the Atlantic City Station. Shortly thereafter and on multiple occasions, plaintiff voiced his concern stating that the reduction of overtime should not come at the expense of public or trooper safety. He indicated that the overriding priority must be to ensure there are an adequate number of troopers with the proper equipment to keep the Atlantic City Station operable and viable.

In November 2004, S.F.C. Simmermon began receiving increased pressure from his superiors, including Assistant Marine Bureau Chief Lieutenant Scarpone, regarding reductions in overtime at the Atlantic City Station. In response, plaintiff sent an email stating again that overtime stemmed from the manpower/trooper shortage at the Atlantic City Station and that neither the public nor the troopers should be put at risk due to the shortages.

On December 22, 2004 S.F.C. Simmermon was promoted to Lieutenant. On June 1, 2005, plaintiff then forwarded an email to Lt. Simmermon again discussing the manpower shortages. On June 16, 2005, plaintiff requested that Lt. Simmermon forward his concerns up the chain of command.

In January 2006, Lt. Simmermon was transferred to Assistant Bureau Chief of the Marine Services Bureau. Then on May 23, 2006, plaintiff forwarded a New Jersey State Police Special Report regarding the manpower concerns to Captain Mallette, the Bureau Chief for Marine Services. Plaintiff also forwarded a copy of the Special Report to his union, the State Troopers Non-Commissioned Officers Association.

Finally, on August 19, 2006, without requesting it and without explanation, plaintiff was transferred to the Bivalve Station and on February 3, 2007, was again transferred and demoted.

After the complaint was filed, defendants moved to dismiss the complaint. The motion was granted, and this appeal followed.

Under CEPA, employees have a claim for retaliation against their employer for adverse employment actions taken as a result of the employee reporting the employer's illegal activities or activities that run contrary to public ...

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