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Bauer v. Galloway Township

January 5, 2009

ROBERT BAUER, PLAINTIFF-APPELLANT,
v.
GALLOWAY TOWNSHIP, ALLAN KANE, AND NORMAN MEYERS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3990-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 3, 2008

Before Judges Carchman, R.B. Coleman and Sabatino.

In this employment case, plaintiff, Robert A. Bauer, a police officer in Galloway Township, appeals the Law Division's order of March 30, 2007 granting summary judgment to defendants, Galloway Township Police Department ("the Department"), Police Lieutenant Allan Kane ("Lieutenant Kane") and Police Sergeant Norman Meyers ("Sergeant Meyers"). Plaintiff alleges that defendants had engaged in acts of reprisal against him in violation of both the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, and the Conscientious Employees Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8. We affirm.

I.

Plaintiff began his employment with the Department as a dispatcher in October 1997. He became a full-time police officer with the Department in March 1999. Plaintiff alleges that as a result of a series of incidents defendants took various disciplinary actions against him. The incidents and disciplinary actions, which we describe in roughly chronological order, consist of: (1) the Hackney overtime incident; (2) the pepper-spray incident; (3) the domestic violence incident; (4) the suicide call incident; (5) plaintiff's March 2004 performance evaluation; (6) Corporal Jucciarone's car accident; (7) the April 2004 squad transfer; and (8) the Garden State Fuel patron incident. Several of these incidents prompted an Internal Affairs investigation within the Department, which we also will summarize.

The Hackney Overtime Incident. The first dispute that allegedly gave rise to plaintiff's claims occurred on November 25, 2003. That evening, several members of the Department attended a City Council meeting, at which a fellow officer received an award for actions taken during a shooting. One of the officers in attendance was Officer Hackney.*fn1 On his way home from the event, Officer Hackney received a phone call from a councilman. The councilman informed Officer Hackney that he had been in a car accident. Despite being off-duty, Officer Hackney responded to the councilman's call.*fn2

Upon arriving at the scene of the accident, Officer Hackney requested an on-duty officer to respond. Shortly thereafter, in response to that call, plaintiff arrived. Perceiving that the investigation was almost completed, plaintiff asked Officer Hackney to fill out the police report, despite the fact that Hackney was then off-duty.

Officer Hackney subsequently complained to a fellow police officer, Sergeant Stephen Doyle, that plaintiff had resisted his attempt to turn the accident investigation over to him. Presumably, Hackney had been trying to adhere to the Lexington Plan and avoid creating an overtime situation. Sergeant Doyle discussed the incident with plaintiff. Doyle supposedly assured plaintiff that the incident would stay between the three officers unless Hackney had a problem obtaining overtime for his work. As it turned out, Hackney was denied overtime pay for his time responding to the councilman's accident, because he had failed to obtain permission from Lieutenant Kane before responding to the call.

In December 2003, Lieutenant Kane requested Sergeants Weir and Meyers to conduct a preliminary investigation into the facts surrounding Officer Hackney's overtime request. Based upon that investigation Kane concluded that plaintiff should have taken over the investigation and written the accident report because Hackney was off-duty. As a result of this finding, Hackney was issued a verbal reprimand. Additionally, Kane issued plaintiff a performance notice for failing to complete the call himself and to write the report.*fn3

The Pepper-Spray Incident. On February 7, 2004, plaintiff was dispatched to a call involving a dispute between two brothers. After arriving at the scene, plaintiff determined at some point that one of the brothers was attempting to chase the other brother into a house. Plaintiff used his pepper spray on the aggressor. He then wrote up an investigation report.

Sergeant Meyers subsequently discussed with plaintiff the contents of his report about this incident. According to Meyers, he admonished plaintiff for failing to include in his report that he had told the suspect that he was under arrest prior to pepper-spraying the individual. Plaintiff instead contends that Meyers told him to falsify his report and to include an inaccurate statement that plaintiff had used the pepper-spray because he had been in imminent danger of attack. Plaintiff also contended that Meyers improperly directed him to charge the individual with obstruction, instead of a disorderly persons charge.

The Domestic Violence Incident. On March 6, 2004, patrol units were dispatched to a call at 109 Sussex Place in Galloway Township. Upon arriving, plaintiff observed a naked female running after a male. He observed her hitting the male in the head. Shortly thereafter, more officers arrived, including a female officer, Corporal Jody Jucciarone. While speaking to plaintiff and the corporal, the male participant told the officers that he did not like what the female was wearing out that evening so he had taken off her clothes.

Corporal Jucciarone then went to speak to the female involved in the incident. The female mentioned to the corporal that the couple had a child together. At that point, Corporal Jucciarone determined that the matter should be classified as a domestic violence incident. Plaintiff initially disagreed with Jucciarone, asserting that he thought the matter should be instead handled as an "unwanted person" incident, not a domestic violence matter. After requesting to speak to the corporal in private, plaintiff eventually relented from his position. However, he maintained that if the encounter was going to be classified as a domestic violence call, the female attacker also should be arrested for assault as well as the male. Corporal Jucciarone then arrested the female.

According to Lieutenant Kane's testimony, the Department had an internal policy in March 2004, to call a judge to determine if a domestic violence arrest should be issued through a summons or, alternatively, through an arrest warrant. In light of that policy, plaintiff called Sergeant Meyers to discuss the arrest and to be guided on how he should proceed. Meyers then called Lieutenant Kane. The two supervisors decided to release the female attacker on only a summons, without contacting a judge.

Corporal Jucciarone reported plaintiff's conduct concerning this incident to Kane and Meyers. She claimed that plaintiff had improperly sought to handle the dispute as an unwanted persons call, even though he had witnessed the female assault the male. She also complained about plaintiff's insubordinate behavior towards her at the scene. The corporal memorialized these issues in a memorandum to her regular supervisor, Lieutenant Davies.

The Suicide Call Incident. On March 15, 2004, another incident transpired involving Sergeant Meyers and plaintiff. On that day, plaintiff received a suicidal person call. In responding to the call, plaintiff was assaulted and injured by the suicidal person. Following the incident, Sergeant Meyers told plaintiff that the suicidal person should have been charged for assaulting plaintiff. In addition, Meyers was dismayed by plaintiff's poor handling of the incident. Specifically, Meyers thought that it was improper for the suicidal person to ride to the psychiatric hospital with his parents, as opposed to being driven there by the police or by an EMT.

On March 19, Sergeant Meyers began the officers' roll-call, at which plaintiff was present, by referring to plaintiff's improper handling of the suicidal call. Plaintiff was not, however, disciplined for his conduct.

Plaintiff's March 2004 Performance Evaluation. On March 29, 2004, Sergeant Meyers issued plaintiff his performance evaluation for the period of May 27, 2003 through December 31, 2003. Meyers drafted the evaluation and Lieutenant Kane reviewed it.

The categories within the evaluation had a maximum rating of seven, with a minimum rating of one.*fn4 With respect to the category of "dealing with citizens," Sergeant Meyers felt that plaintiff should be given a rating of three. Lieutenant Kane felt that plaintiff should be given a higher rating of four. The rating was based on both civilian complaints that the Department had received about plaintiff and also, plaintiff's perceived difficulties with the police dispatchers. Among other things, the report presented a mixture of positive and negative observations:

[Plaintiff] has a general flaw in the area of the Attitude and Relations category of the evaluation process which I view as critical and needs immediate improvement on his part. [His] attitude toward certain members of dispatch is a problem as he is constantly critical of what he believes to be their improper action or inaction relating to how they [the co-workers] perform their job . . . [.] He has been the ...


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