March 9, 2009
LEONARD CIPRIANO AND KATHLEEN CIPRIANO, PLAINTIFFS-APPELLANTS,
CITY OF TRENTON, CITY OF TRENTON POLICE DEPARTMENT, AND JOSEPH SANTIAGO, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE DIRECTOR FOR THE CITY OF TRENTON, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2040-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2008
Before Judges Wefing, Parker and LeWinn.
Plaintiffs appeal from trial court orders dismissing their complaint and granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm, but for reasons other than those stated by the trial court.
Plaintiff Leonard Cipriano was a police officer with the Trenton Police Department from 1973 until his retirement in 2005. Defendant Joseph Santiago became the civilian director of the police department in 2003. In August 2005, Leonard Cipriano and his wife Kathleen filed a two-count complaint naming the City of Trenton, the Trenton Police Department and Joseph Santiago as defendants. In the first count, Leonard Cipriano alleged that defendants' actions had violated his rights under the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. In the second count, both Ciprianos sought damages for civil harassment.
In May 2006, the trial court granted partial summary judgment to defendants, dismissing portions of the first count as untimely. It denied defendants' motion to dismiss the second count for failure to file a notice of claim under the Tort Claims Act, N.J.S.A. 59:8-1 to -11. Thereafter, plaintiffs filed an amended complaint in September 2006 that alleged a constructive discharge, in violation of CEPA, and civil harassment. In December 2007, the trial court granted summary judgment to defendants, and this appeal followed.
During his career with the Trenton Police Department, plaintiff Leonard Cipriano was active with the Policemen's Benevolent Association ("PBA"); he became executive vice-president in 1994 and president a few years later.*fn1 Plaintiff and defendant Santiago had an acrimonious relationship from the outset. Plaintiff testified in his deposition that prior to Santiago's appointment as director of the police department, he had received one minor discipline, and that was early in his career. Plaintiff said that changed after Santiago became director.
Plaintiff had publicly opposed Santiago's appointment as the civilian director, as well as policies that Santiago sought to implement following his appointment. Plaintiff also publicly clashed with Santiago on issues regarding staffing and equipment.
There was also an issue with respect to Santiago's pension. Santiago had previously been on the police force in Newark. He had retired from that position and was collecting a pension based upon that prior service. Plaintiff contended that it was improper for Santiago to collect that pension at the same time that he was serving as the director of the Trenton Police Department.
Plaintiff, together with members of the PBA's executive board and officers of the Superior Officers' Association, also took these concerns to the county prosecutor and the Attorney General's office.*fn2 Santiago was aware of plaintiff's activities in this regard.
In addition, during the time that plaintiff served as president of the PBA, the union filed several unfair practice charges with respect to Santiago's efforts to re-structure and re-organize the police department. Santiago, by way of example, eliminated the position of deputy chief. He removed the three men who had previously held that title and assumed some of their duties himself.
Prior to Santiago becoming director of the department, the practice had been that the PBA president was permitted to spend one hundred percent of his time on union duties and was not required to perform regular police duties unless there was a particular staffing need. Santiago changed that policy after becoming director.
In December 2003, plaintiff received a disciplinary charge when he did not respond to the scene of a car accident when he was ordered to do so. There is evidence in the record that there was a significant snowfall on the date in question and some officers were delayed in reporting for work. The department was thus shorthanded when plaintiff was ordered to respond to the accident, which had occurred on a busy road and was affecting traffic. Plaintiff was in the PBA office at the time and did not promptly respond to the order but, rather, said he was waiting to speak to the captain. Santiago ordered plaintiff suspended for fifteen days, a determination later upheld by the Merit System Board.
In January 2004, Santiago decided to end the practice of holding regular labor-management meetings, at which there had been discussions of grievances and policies. During those meetings, plaintiff had regularly expressed concerns about staffing and equipment, particularly the poor condition of many of the police cars the officers had to use. Santiago said he cancelled these meetings because he felt that they were not productive. Plaintiff believed that Santiago acted to retaliate against the union, and, in particular, his leadership.
In March 2004, plaintiff received another disciplinary charge for traveling outside of Trenton without permission.
This was a violation of a directive Santiago issued in November 2003 that no police officer could leave the city limits unless he or she had earlier received permission to do so. Plaintiff said he was on union business at the time, which he understood to be a permissible exception from the directive. He was ordered suspended for fifty days. He was, however, permitted to use the PBA office during that interval.
Another incident occurred in May 2004. Plaintiff was attending firearms training when his wife received an emergency break-through telephone call from Lieutenant Messina asking where plaintiff was. She responded that he was attending firearms training at the gun range. She said that Messina responded that he was not there, and she became upset at what she perceived as an insinuation that plaintiff was being unfaithful to her. Mrs. Cipriano is a diabetic, and she said her blood sugar level became dangerously high as she became upset.
Lieutenant Messina had a different version of what occurred. He said he called plaintiff's home when he did not arrive for work as scheduled. Messina said plaintiff's name was not on the list to be at the range and that when Mrs. Cipriano said that was where her husband was, he simply thanked her and hung up.
In February 2005, plaintiff received yet another disciplinary charge, for having allegedly left his assigned post and the city limits on December 2, 2004. Plaintiff said that he had accompanied a PBA member to an internal affairs interview. He said he had provided notification to dispatch and that he was using his lunch break for the task. He maintained that this was in accord with previous policy in the department.
Plaintiff retired on August 1, 2005. He said he did so because he was afraid that Santiago would arrange to have him terminated, in which event he would lose his pension. After his retirement, he received a Final Notice of Disciplinary Action, with respect to these final charges. He was suspended twenty days, five of which were imposed and deducted from his final check, and fifteen of which were suspended.
Plaintiffs filed their complaint shortly after Leonard Cipriano's retirement. He alleged six acts of retaliation in violation of CEPA: his fifteen-day suspension arising out of the incident of December 2, 2003; the denial of administrative leave in December 2003 to attend to PBA business; cancellation of the labor-management meetings; the fifty-day suspension arising out of the incident of March 4, 2004; the five-day suspension arising out of the incident of December 2, 2004; and the telephone call from Lieutenant Messina to Mrs. Cipriano. He also alleged that the fact that he retired from fear of termination constituted a constructive discharge. The harassment count was premised on the phone call to Mrs. Cipriano. Plaintiffs appeal the trial court orders granting summary judgment to defendants and dismissing their complaint.
In reviewing a trial court order granting summary judgment, we employ the same standard as does a trial court in considering whether summary judgment is appropriate; that is, the facts and inferences must be viewed in favor of the party opposing the motion. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A trial court's interpretation of the applicable law, however, is not entitled to deference on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The trial court granted summary judgment to defendants in December 2007 with respect to plaintiff's claim of retaliation in violation of CEPA because plaintiff had not pursued his administrative remedies after he received disciplinary notices for the incident of March 4, 2004, and the incident of December 2, 2004. The trial court considered it would be inappropriate to have a jury "go behind" the sanctions that were imposed to determine if they were retaliatory. We agree with plaintiff that he was not required to pursue such an appeal before seeking redress under CEPA.
The CEPA statute does not contain such an exhaustion requirement.
CEPA . . . "is a civil rights statute. Its purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Consistent with that purpose, CEPA must be considered 'remedial' legislation and therefore should be construed liberally to effectuate its important social goal." [Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003) (quoting Abbamont v. Pisacataway Bd. of Educ., 138 N.J. 405, 431 (1994) (Abbamont I))]
In addition, when called upon to interpret and analyze CEPA, courts have turned to case law under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, for guidance. Green, supra, 177 N.J. at 448 (noting that "[t]he policy concerns underpinning the determination in Shepherd [v. Hunterdon Developmental Ctr.], 174 N.J. 1 (2002)], in respect of LAD claims require the application of the Morgan/Shepherd framework in CEPA actions"); Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166 (App. Div. 2005).
Our Supreme Court in Hennessey v. Winslow Twp., 183 N.J. 593 (2005), held that the plaintiff was not precluded from pursuing a LAD action because she had not appealed an adverse departmental decision to the Merit System Board. According to the Court, the plaintiff's "decision to forego an administrative remedy at that stage and to seek instead a judicial forum for her LAD claim was hers to make." Id. at 604. We can perceive no reason in logic or policy why a different result should obtain here.
We are satisfied, nonetheless, that the trial court's order granting summary judgment on the CEPA claim should be affirmed for failure to establish a prima facie case. There are four elements to a prima facie case under CEPA. In order to state a claim under CEPA a plaintiff must show each of the following elements:
(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c;
(3) an adverse employment action was taken against him or her; and
(4) a causal connection exists between the whistle-blowing activity and the adverse employment action. [Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (citations omitted).]
As we noted earlier, plaintiff has alleged six acts of retaliation; three of these were the disciplinary suspensions imposed upon him. In each case, however, plaintiff admitted the conduct which led to the imposition of sanctions. He did not dispute, for instance, that when he received the direct order on December 2, 2003, to report to the scene of an accident, his first response, broadcast over the dispatch system, was that he was waiting to speak to the captain. It was only when the order was repeated three times that he complied with the directive.
Nor did he dispute that he left the city limits without having first received permission, despite his knowledge that a directive had been issued prohibiting that. Additionally, he did not dispute that he had entered falsely into his time log that he had been in the PBA office when in fact he was not in Trenton. Because plaintiff admitted the infractions, his employer established a non-retaliatory reason for the discipline.
Plaintiff also contended that Santiago's decision to stop holding the labor-management meetings constituted retaliatory action. In our judgment, a decision such as that cannot be considered a violation of law, regulation or a mandate of public policy, the first prerequisite for a CEPA action. We reach the same conclusion with respect to plaintiff's claim that denying him administrative leave in December 2003 was actionable under CEPA.
The final retaliatory act to which plaintiff points is the telephone call from Lieutenant Messina to plaintiff's wife in May 2004. As plaintiff admitted in his deposition, he has no proof that defendant Santiago had any involvement in that incident.*fn3
Plaintiff also contends that the trial court erred when it dismissed his claim for constructive discharge in violation of CEPA. To prevail on a claim for constructive discharge, a plaintiff must establish: not merely "severe or pervasive" conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it. More precisely, the standard envisions "a sense of outrageous, coercive and unconscionable requirements." Simply put, a constructive discharge claim requires more egregious conduct than that sufficient for a hostile work environment claim. [Zubrycky, supra, 381 N.J. Super. at 166 (citations omitted).]
We agree with the trial court that plaintiff failed to meet this exacting standard. He disagreed with the manner in which defendant Santiago was administering the police department. He did not conform his conduct to the directives that Santiago, in a proper exercise of his power inherent in his position as director of the department, issued. Plaintiff obviously considered those directives aimed at him. We cannot, however, categorize them as "outrageous, coercive and unconscionable." Ibid.
The remaining claim is that for civil harassment, presented by both plaintiffs on the basis of the telephone call from Lieutenant Messina. As we have noted previously, plaintiff has no proof that defendant Santiago had any involvement in the placement of this call. The trial court correctly granted summary judgment on this count as well.
The orders under review are affirmed.