On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5546-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Sabatino and Simonelli.
In this employment case, plaintiff Kimiiko Woods appeals the summary judgment dismissal of her complaint, which alleged:
(1) retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; (2) discrimination and hostile work environment based on gender in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; (3) violation of Article 1 of New Jersey Constitution; (4) common law false light invasion of privacy, intentional infliction of emotional distress, and breach of the implied covenant of good faith and fair dealing; (5) denial of due process and equal protection; (6) violation of First Amendment*fn1 rights; and (7) violation of 42 U.S.C.A. §1983.
On appeal, plaintiff contends, in part, that the motion judge improperly relied on facts not in evidence; improperly granted summary judgment as to all of her claims; disregarded or failed to consider material questions of fact; and improperly granted summary judgment to defendant Michael Chase, the Chief of Police of defendant Township of Irvington Police Department (IPD). We affirm in all respects, except we reverse and remand as to plaintiff's CEPA retaliation claim, and for a ruling on the individual defendants' unresolved assertions of qualified immunity.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This matter concerns a dispute over the procedures for storing photographs taken of an arrestee who claimed police brutality. At the time of the dispute, plaintiff, an African-American female, was assigned to the IPD's Internal Affairs Unit (IA). Also working in IA at the time were plaintiff's supervisor, defendant Amanda Koontz, an African-American female, defendant John Molisso, and Detectives Roman Melenka and Melvin Shamberger.
On the evening of Saturday, August 16, 2003, plaintiff was assigned to investigate allegations of police brutality, which occurred during the narcotics arrest of Omar Heyward. On the same evening, defendant Michael Chase, the Chief of Police, arrested Lawrence Bennett, who was suspected of having engaged in a drug transaction with Heyward.
IA is responsible for investigating police brutality claims. According to Molisso, the IA procedures involving allegations of police brutality required that IA interview and take photographs of the victim or complainant and "maintain those photos for [IA] purposes." Despite this procedure, because Heyward had claimed police brutality during the arrest, Chase ordered one of the arresting officers, Officer Farmer, to take photographs of Heyward rather than an IA officer because he wanted them "taken as contemporaneous to the event as possible[,]" and he did not "know how long it would take for the [IA] detectives to respond." Molisso was unsure why Chase ordered Farmer to take the pictures. He stated that the photos "should have been taken by [IA] personnel."
The photos were logged into the IPD's computer evidence tracking systems known as the B.E.A.S.T., which records the chain of custody of all evidence obtained during arrests. Chase also ordered Koontz, who was at scene of the arrest, to keep the photos as part of the IA file. Chase explained that if Koontz did not follow his order, she could be subject to disciplinary charges. Plaintiff claims that she was unaware that photos of Heyward had been taken and unaware of Chase's orders to Farmer and Koontz.
On August 18, 2003, plaintiff received copies of the police reports of Heyward's arrest and the photos from Sergeant Noel of the Neighborhood Stabilization Unit (NSU). Plaintiff spoke with Molisso about the photos, and they agreed that it was improper for IA to keep them. At Molisso's direction, plaintiff returned the photos to NSU. She and Molisso gave the following reasons for returning the photos: (1) because Farmer had taken them, they should remain with his reports and all other evidence; (2) it was against IA policy to retain the photos because IA had not logged them into the B.E.A.S.T.; and (3) the photos were of no use to IA because Farmer, the officer being investigated, took them, and thus they were tainted for IA purposes. Plaintiff also believed that the photos were sent to IA to prevent their discovery in the Bennett matter.
According to plaintiff, on the morning of August 19, 2003, Koontz called her at home and advised her that Chase was looking for the photos and the tape transmission of the arrest. Plaintiff advised Koontz that, per Molisso's direction, she had returned the photos to NSU and that the tape was on her desk. Plaintiff then went to the IA office to find the tape and give it to Chase. Upon arriving at the IA office, plaintiff notified Chase that she had returned the photos to NSU per Molisso's advice. Chase responded that he never spoke with Koontz about the photos. Plaintiff concluded from this that Koontz had fabricated the story about Chase in an attempt to justify her concealing of evidence in the Heyward investigation.
On August 20, 2003, plaintiff submitted her first formal complaint to Molisso about Koontz's treatment of plaintiff. Molisso allegedly returned the complaint to plaintiff, advising her that she "would become a 'walking bulls-eye' if [she] submitted the complaint . . . [and] that she should seek assistance from outside the Department."
On August 22, 2003, Koontz advised Molisso that plaintiff "was being hostile and unprofessional in her interactions with [Koontz]." Koontz believed that plaintiff resented Koontz's supervisory position because plaintiff "had gotten accustomed to doing the work of a supervisor" before Koontz joined IA and was having "a hard time relinquishing her self-appointed authority."*fn2
Molisso then met with Koontz and plaintiff on August 22, 2003, and explained to Koontz IA's procedures for photographing victims and for storing the Heyward photos.*fn3 It was apparent to Molisso that plaintiff was upset with what she believed was Koontz's interference in the Heyward investigation. It was also apparent to Molisso that "Koontz was not being afforded the respect she deserved as a supervisor." Accordingly, Molisso explained to plaintiff that "Koontz, in her capacity as a supervisor was entitled to monitor any and all investigations being conducted in [the] office."
Koontz claimed that Molisso advised her that IA "could have taken [its] own photographs, . . . but since that was not done [in this case], it was not a concern as long as the photos had been taken." Koontz also claimed that Molisso stated that IA "could have left the photographs with [NSU] and retrieved them when [they] needed them, or [IA] could have kept them [in the IA] office."
On August 25, 2003, Koontz removed the photos from NSU and put them in the IA office. Plaintiff stated that later she saw the photos in the drawer of a typewriter stand in the IA office.
Thereafter, the relationship between Koontz and plaintiff steadily deteriorated. Plaintiff claimed that she endured "retaliatory, harassing and discriminatory treatment . . . with no relief." For example, Koontz allegedly removed plaintiff from previously assigned investigations, assigned plaintiff fewer investigations than plaintiff's counterparts, reduced her workload, excluded her from callouts, required her to obtain prior approval to work overtime, and ignored or gave her the "cold shoulder." Plaintiff claimed that male officers who had complained about Koontz were not "subjected to the same treatment."
Koontz claimed that plaintiff engaged in a variety of "insubordinate" behavior. For example, plaintiff allegedly failed to complete her investigations, failed to consult with Koontz about her findings, and failed to submit investigations for Koontz's approval in violation of standard operating procedures. Koontz said that she did not "write [plaintiff] up . . . because [IA] is a small office with five individuals and [she] believed talking about the problems would be the best thing to do at the time." Thus, Koontz chose to participate in "counseling session[s]" with plaintiff moderated by Molisso.
On April 15, 2004, plaintiff filed complaints with the United States Equal Employment Commission (EEOC), the Department of Personnel, and the New Jersey Division of Civil Rights (NJDCR). She filed additional complaints with the EEOC and NJDCR on September 13, 2004, alleging sex discrimination because male officers who complained about Koontz did not face the retaliation to which Koontz subjected her.*fn4
On September 21, 2004, Chase sent Molisso a memo stating that as a result of plaintiff's EEOC complaint against Koontz, he made the following temporary changes: (1) plaintiff would report directly to Molisso and receive her assignments from him until the matter was "investigated and resolved"; (2) plaintiff was "not to work outside her regular assigned hours unless she is called out to handle an investigation or authorized by [Chase]"; and (3) Koontz's work days were temporarily rescheduled to Wednesday through Saturday.
In an April 1, 2005 memo, plaintiff advised Irvington Police Director Damiano of the alleged discrimination and hostile work environment to which Koontz subjected her as a result of her "speaking out against the violation of evidence procedures by . . . Koontz . . . as related to criminal investigations, which is clearly set forth in the Attorney General Guidelines[.]" Plaintiff also claimed that Koontz retaliated against and harassed her by freezing plaintiff out of IA investigations, reducing her duties, and other actions. Plaintiff also claimed that she had reported Koontz's behavior to Molisso and Chase, who did nothing to remedy the problem but instead blocked her out of department meetings. On April 7, 2005, Director Damiano responded that he would forward plaintiff's memo to the Township Affirmative Action Officer.
On April 18, 2005, Chase notified plaintiff that she was being temporarily transferred to A-Tour Patrol Division. According to Chase, he changed plaintiff's assignment so that her complaints "could be investigated without any further concern of any possible allegation of mistreatment or inappropriate action by any one of the alleged individuals[,]" including himself. Chase presented plaintiff with the order of reassignment in the presence of plaintiff's union representative. Molisso was not at work that day and did not participate in the decision to transfer plaintiff, as he normally would have in his supervisory role.
Because plaintiff's April 1 memo to Damiano alleged "criminal acts" by Koontz, on April 22, 2005, Chase forwarded it to the Acting Essex County Prosecutor, Paula Dow, and requested an investigation. The Prosecutor's Professional Standards Bureau (PSBP) instructed plaintiff to contact them, but she did not respond. Plaintiff also did not respond when PSBP attempted to contact her via cell phone. Finally, the PSBP requested that the IPD schedule an interview with plaintiff.
On May 16, 2005, PSBP was advised that plaintiff had retained counsel. Thus, the PSBP decided to forgo the interview and instead requested from plaintiff a "written report furnishing details of her allegation of criminal illegalities only." The PSBP also requested all "official written correspondence, reports and/or memoranda" concerning the alleged criminal activities.
On May 19, 2005 plaintiff's attorney advised the PSBP that plaintiff was withdrawing any criminal allegations and would file a civil lawsuit. On May 26, 2005, the PSBP closed the investigation, finding "no basis for criminal prosecution."
On May 19, 2005, plaintiff submitted another complaint to Damiano alleging further acts of retaliation and discrimination (her assignment to the Patrol Unit). Consequently, Melenka conducted an IA investigation. However, plaintiff protested an Order to Submit a Report from Melenka because her attorney preferred "the investigation to be conducted through his office." Plaintiff eventually submitted a report, under protest, on June 22, and June 23, 2005. Despite the pending investigation, plaintiff submitted another complaint to Damiano July 1, 2005, renewing her claims. Plaintiff filed a complaint in the Law Division on July 7, 2005.
On August 2, 2005, plaintiff was issued a Notice of Minor Disciplinary Action and an Order of Suspension, stating that she was suspended for five days without pay for "not assisting" in the PSBP matter, and for "failing to comply with the order to submit a report detailing specifically the criminal allegation [plaintiff] alleged." Plaintiff opposed the suspension in the Law Division. On November 3, 2006, Judge Leath entered an order vacating the Order of Suspension and removing it from plaintiff's record, finding that the suspension violated plaintiff's due process rights.
Although plaintiff was transferred to the Patrol Unit, she retained her detective status and the same basic rate of pay.*fn5
However, IA detectives receive an additional $1200 clothing stipend since they do not wear uniforms, which plaintiff lost when she was transferred. Plaintiff's seniority and benefits were not affected by the transfer. Despite having submitted requests for transfers, plaintiff is currently still in the Patrol Unit, working the 3:45 p.m. to 3:00 a.m. or the 7:45 p.m. to 7:00 a.m. shifts. ...