On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-857-02 and L-1870-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Defendant, City of Elizabeth, appeals from a final judgment in favor of plaintiff John Guslavage, based on a jury verdict that awarded him $600,000 on his claim that his employer, the Elizabeth Police Department (EPD), retaliated against him. On appeal, defendant contends that the trial judge erred in denying its motion for judgment notwithstanding the verdict and in admitting certain evidence. In a cross-appeal, plaintiff argues that the trial judge improperly limited the scope of his retaliation action and wrongly precluded his physician from testifying regarding the permanency of his condition. He also challenges the fee award. We affirm on both the appeal and cross-appeal.
The procedural history of this case, which led to the jury trial over a six-week period in May and June 2006, is extensive. For purposes of this appeal, it will suffice to note that on May 15, 1995, plaintiff, a police officer, filed a complaint pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, in the Superior Court, Law Division, Union County, against defendants City of Elizabeth, the EPD, Chief Gene Mirabella, Deputy Chief Mary Rabadeau, Chief John Simon, Acting Police Director Michael J. Orak, and Lieutenant Patrick Shannon, alleging that plaintiff had suffered retaliation for engaging in whistle-blowing activities in 1994. That complaint was stayed on May 14, 1996, pending completion of related administrative hearings. On April 17, 2001, plaintiff filed a second CEPA complaint against defendants - City of Elizabeth, the EPD, Police Director James Cosgrove, Chief Simon and Captain Mark Kurdyla - wherein he made additional allegations of retaliation following other alleged whistle-blowing activities in 1999. By order dated and filed May 16, 2001, plaintiff's first complaint was dismissed without prejudice.
On February 19, 2002, plaintiff filed a third CEPA complaint against defendants City of Elizabeth, the EPD, Gene Mirabella, Mary Rabadeau, John Simon, Michael J. Orak, Patrick Shannon, Patrick Maloney, and Robert Houston. This complaint and plaintiff's second complaint were thereafter consolidated with the consent of all parties.
On June 27, 2003, summary judgment was granted dismissing the consolidated complaints with prejudice as to all defendants. Plaintiff appealed and in an unpublished written opinion, dated July 1, 2004, we reversed in part and remanded the case on the issue of whether transfers of the plaintiff in 1994 and 2000 constituted retaliatory acts under CEPA.
Thereafter, on February 2, 2006, plaintiff voluntarily dismissed with prejudice his claim against defendant Orak, and on March 3, 2006, summary judgment was granted, dismissing with prejudice plaintiff's claim against defendant Maloney. On April 18, 2006, with the consent of all parties, the court dismissed with prejudice all claims against the remaining individual defendants, and also dismissed with prejudice plaintiff's complaint against the EPD since it was part of defendant City of Elizabeth.
The case proceeded to trial on numerous dates in May and June 2006, and on June 16, 2006, the jury returned a verdict finding on the jury verdict sheet that plaintiff had not "proven by a preponderance of the credible evidence that in 1994 he [had] disclosed to a supervisor or a public body on activity, policy or practice of the defendant City of Elizabeth that [he] reasonably believed to be in violation of a law or rule or regulation promulgated pursuant to law[.]" The jury answered "yes" to that question as it related to 1999 and found in plaintiff's favor with respect to his allegation that a transfer in that time frame was in retaliation for disclosures he had made. The jury awarded plaintiff compensatory damages of $600,000, but declined to award punitive damages. The trial judge considered post-trial motions and entered an order dated December 20, 2006, that awarded plaintiff an additional $261,909.81 in counsel fees and costs from April 17, 2001 to the date of that order. Defendant's motions for judgment notwithstanding the verdict, for a new trial and for remittitur of the jury's verdict were denied.
Defendant appealed, and plaintiff cross-appealed.
The crux of plaintiff's claims is that the EPD retaliated against him by transferring him from a supervisory position in the Narcotics Division to other non-supervisory positions which subjected him to humiliation and obloquy. He also claims defendant instituted disciplinary charges against plaintiff in retaliation for claims of improprieties within the department that he was pursuing. The disputes center around events that occurred as early as 1994.
In 1994, plaintiff was a sergeant in the Narcotics Division of the EPD, serving under Lieutenant Patrick Shannon, Deputy Chief John Simon, and Chief Gene Mirabella. Plaintiff joined the EPD in 1969, and was instrumental in founding EPD's Narcotics Division. At that juncture, he had a virtually unblemished disciplinary record, and had been repeatedly commended for outstanding work in numerous narcotics investigations for both the EPD and federal drug agencies.
On January 5, 1994, plaintiff met with Nicholas Mavronas, a New Jersey Transit bus driver who had been arrested on drug charges by EPD Officers Phil O'Donnell and John Cockinos outside of Cervantes Lounge (Cervantes). Mavronas agreed to act as a confidential informant with respect to an investigation of Cervantes and Omar's Place (Omar's). He told plaintiff that he had personally purchased cocaine from Ramon Barrios, the owner of Cervantes. He further related that he believed Barrios's daughter, Yolanda, who worked as an EPD dispatcher, was leaking information to her father. Notably, Cockinos and O'Donnell had previously complained to plaintiff regarding Yolanda.
Mavronas informed plaintiff that, roughly ten days before his arrest, one of the barmaids in Omar's had pointed out three narcotics officers who were having drinks and stated that they were good friends of Jose Orlando Hernandez, also known as Omar, the owner of Omar's. According to Mavronas, these officers were present during his subsequent cocaine buy, and they were in the bar while the drug activity was going on. Based upon Mavronas's descriptions, plaintiff and Cockinos suspected two of the officers as Detectives Rudy Vines and Gonzalo Quesada, but they were uncertain as to the identity of the third officer.
Plaintiff prepared case initiation reports regarding the Cervantes/Omar investigation wherein he included a reference to narcotics officers being present in Omar's. According to plaintiff, his supervisor, Lieutenant Shannon, directed him to delete this reference. Shannon denied this. In any event, in place of "narcotics" officers, plaintiff substituted EPD officers and forwarded the reports to Deputy Chief Simon. After Simon approved the reports, Shannon directed plaintiff not to forward the report pertaining to Omar's to the Union County Prosecutor's Office (UCPO).
Later, plaintiff learned that he was not being assigned any additional manpower other than his fellow sergeant in the Narcotics Division, Glen Hennings, to assist in the Omar's portion of the investigation. Plaintiff found these occurrences suspicious.*fn1 In addition, after Hennings assisted plaintiff and Mavronas in making a controlled buy at Cervantes, Mavronas told plaintiff that Hennings was the third of the three officers at Omar's. Plaintiff indicated he had already become suspicious of Hennings after Hennings secretly scheduled a raid on Omar's that could have disrupted the investigation. Plaintiff shared this information with Simon, who plaintiff believed became upset and suggested that they have a meeting the next day with Shannon and Mirabella to discuss the matter. However, at that meeting, Shannon stopped plaintiff from raising the matter, and after the meeting, Shannon accused plaintiff of knowing the identity of the third officer at Omar's all along.*fn2 The next day, Shannon ordered plaintiff to stop the investigation at Omar's and to focus on Cervantes.
Shannon justified this action by claiming that this was never intended to be a long investigation, that they had only limited resources, and that there had been no undercover buys at Omar's through March. However, plaintiff suspected a cover-up. Plaintiff's suspicions in this regard were bolstered, he believed, when Detective Anne Arocchia of the UCPO told him that a prior investigation at Omar's had been aborted because Vines and Quesada were friends with the owners. Plaintiff testified he complained to Mirabella regarding the termination of the investigation, but to no avail.
Mavronas also told plaintiff that he had seen Barrios's attorney snorting cocaine in Cervantes. Plaintiff knew the identity of that attorney and reported this information to Shannon. Although Shannon was reluctant to take the matter further, he eventually arranged a meeting with Simon. At this meeting, Simon advised plaintiff to let the matter go, commenting that Mavronas was unreliable, and that his information was uncorroborated. According to plaintiff, Simon directed him not to report this information to the UCPO, which seemed unusual to plaintiff. Shannon and Simon denied that Simon told plaintiff not to report this to the UCPO.
In late May 1994, the Drug Enforcement Agency (DEA) made inquiries regarding the progress of the investigation, and a meeting was subsequently held to discuss the future of the investigation. It was decided that, as there had been no success in obtaining incriminating information against Omar and Barrios, the undercover portion of the investigation would be discontinued. Plaintiff strenuously objected to this and proposed taking the matter to the United States Attorney's Office (USAO). According to Shannon, he specifically told plaintiff not to do this. Plaintiff, however, recalled that all Shannon said was "that's enough."
One hour after the meeting, plaintiff contacted Assistant U.S. Attorney Kevin McNulty and scheduled a meeting for the following day. Plaintiff claimed that, before making this call, he revealed his intentions to Mirabella, who did not object. During the subsequent meeting, McNulty agreed to take the case and stated that he would be discussing the matter with the Union County Prosecutor Drew Ruotolo. As McNulty recalled, plaintiff did not make any concrete allegations of police corruption; rather, he simply discussed his suspicions. Ultimately, the USAO assigned Assistant U.S. Attorney Donna Krappa to the case.
Krappa considered this to be a drug investigation. She did not recall plaintiff naming "corrupt cops." She also noted that she was present during a conference call between Ruotolo, Mirabella and McNulty and she understood that plaintiff had permission to be involved in the federal drug investigation. To that end, plaintiff testified he spoke in August 1994 to Mirabella who advised him that he had received a call from Michael Zidonek, an assistant prosecutor in the UCPO, and that, per Ruotolo, plaintiff was being assigned to the USAO to assist in the Cervantes investigation. Zidonek confirmed having made this call.
Mirabella had no memory of the call. Rather, on August 8, 1994, Mirabella temporarily transferred plaintiff to the Union-Essex Auto Task Force. According to plaintiff, this occurred even though Mirabella had previously promised him that he would not be transferred from the Narcotics Division. However, according to plaintiff, Mirabella asked him to go to the Task Force for a month as a favor. Mirabella claimed he made the decision partly because plaintiff was detail-oriented and a good administrator, and partly because he had learned from Hennings, Shannon, and Simon that plaintiff was not getting along very well with the other officers in the Narcotics Division. He admitted, though, that plaintiff had more experience in narcotics than anyone else in the division.
Plaintiff retained the rank of sergeant, but he contends he came to realize that his new assignment did not involve any administrative or supervisory duties. During his tenure with the unit, which lasted through June 28, 1995, he effectively served as a patrolman and took orders from an actual patrolman who had been given supervisory authority because of his lengthy tenure with the Task Force. Plaintiff charged that Mirabella had wanted to punish him, noting that he was never reassigned to the Narcotics Division, but was instead placed in the Patrol Division, where he worked as a patrol supervisor.
According to Shannon, he learned for the first time that plaintiff had gone to the USAO on September 2, 1994. Shannon insisted that he never heard that Mirabella had authorized plaintiff to work with the UCPO and the USAO on a continuation of the Cervantes investigation. Zidonek reported, however, that he spoke to Shannon on September 9, 1994, regarding his conversation with Mirabella.
In any event, plaintiff's superiors subsequently held a meeting to consider imposing disciplinary charges against plaintiff. Shannon believed that plaintiff had disobeyed his direct orders (1) not to go to the USAO or share investigation files, (2) to complete the reports needed to bring charges against the individuals arrested during the 1994 investigation, and (3) to turn the reports in to Shannon. Plaintiff insisted that he had completed his reports and that Shannon, in fact, signed off on them. He further maintained that he had told Shannon that he would hand in the reports in Mirabella's office, but Shannon never arranged this meeting. Plaintiff further noted that the reports were not even necessary any longer because the UCPO had relinquished the investigation to the USAO.
Disciplinary charges were drafted by Shannon and approved by Simon and Mirabella. Plaintiff was served with a notice of disciplinary action on October 14, 1994. Largely because of the pending of these charges, the USAO's investigation into Cervantes was abandoned.
In early 1997, plaintiff met with Mavronas who was scheduled to testify at plaintiff's disciplinary hearing on the 1994 charges, which had finally begun in 1996. Mavronas was scared and told plaintiff he did not want to testify. During their meeting, plaintiff asked Mavronas to identify the attorney he saw at Cervantes from a photo array. Mavronas selected photo number three and signed it on the back.
Thereafter, according to Shannon, Mavronas called him and advised that plaintiff had instructed him to lie when he took the stand at plaintiff's disciplinary hearing. Based upon Mavronas's allegations that plaintiff had instructed him to testify falsely, a preliminary notice of disciplinary action was served upon plaintiff that contained six specifications. These specifications were heard at the ongoing hearing regarding the 1994 charges, at the conclusion of which, the hearing officer issued a written decision wherein he found plaintiff not guilty on all of the 1994 charges, and not guilty on all but charge six of the 1997 charges. The hearing officer recommended that plaintiff be suspended for five days.
In 1998, EPD patrol officers, including plaintiff, who was by then a supervisor, were under a new mandate to rid the streets of drug dealers. Plaintiff interacted with community leaders and also spoke to street-level contacts. In the course of such interactions, plaintiff received numerous reports from street contacts Jamal Thomas, Joe Green, Anthony Williams, and Tasha Jackson, as well as a local tavern owner, John Coutis, that Rudy Vines, a detective, was allegedly using illegal drugs and taking drugs and money from local dealers. Plaintiff secretly recorded some of these conversations with three street contacts. Plaintiff also spoke with EPD Officer Tracy Finch who confirmed that he had heard similar reports.
After some deliberation, plaintiff reported the information he had obtained, not to the EPD's Internal Affairs Unit, as required, but to Captain Edward Johnson of the UCPO. Based upon the EPD's treatment of him in connection with the 1994 and 1997 charges, and the fact that his hearing was still ongoing, plaintiff did not believe that any allegations made by him against Vines would be handled properly by the EPD's Internal Affairs Unit. He was concerned that the matter would somehow be turned against him. He did not trust Simon and believed that Simon had a conflict of interest since he was supporting Vines in connection with plaintiff's disciplinary hearing. Plaintiff's informants had also expressed an unwillingness to speak with the EPD. As such, plaintiff specifically asked Johnson not to contact the EPD.
Thereafter, when plaintiff was unable to produce his informants to give formal statements to Johnson, Johnson contacted the EPD's Internal Affairs Unit for assistance. The resulting joint investigation was likewise unsuccessful since plaintiff's informants either refused to cooperate or denied their earlier statements to him. Johnson reviewed the secret tape recordings that plaintiff had made, but believed those recordings were too vague to be of use to the investigation.
Ultimately, the charges against Vines were deemed unsubstantiated.
On August 9, 1999, the EPD brought new disciplinary charges against plaintiff alleging, among other things, that he had violated an EPD rule mandating that information about criminal activity by a police officer be reported internally. The Police Director at the time, James Cosgrove, presided over a hearing on plaintiff's charges. In a decision rendered April 25, 2000, Cosgrove sustained the charges, but recommended that plaintiff be suspended for five days, rather than removed from the force as originally sought in the proceeding. Cosgrove also ordered plaintiff to undergo a psychiatric examination based upon his belief that plaintiff had testified during the hearing that he trusted only ten or fifteen of his fellow employees at the EPD.
Dr. Robert Kanen examined plaintiff on May 17, 2000, and found him fit for duty, although suffering from work-related stress and depression which was likely to "somewhat reduce" his job performance. Kanen did not find plaintiff to be unusually suspicious or paranoid, but noted that plaintiff had some "realistic fears that emanate from his going outside the department with complaints concerning police activities within the department." The doctor also felt that certain aspects of plaintiff's personality, i.e., his tendency to "misperceive events and to form mistaken impressions of people" left him at risk for "continued performance difficulty."
Based upon Kanen's report, and his own personal opinion as to plaintiff's paranoia, Simon, who by then had succeeded Mirabella as Chief of Police, ordered plaintiff's transfer from Patrol to the Services Division. Simon believed that plaintiff needed a job with closer supervision and that this job, which was a lateral position involving no loss in pay, was the "perfect fit." Simon insisted that he had no intention of punishing plaintiff, noting that he granted plaintiff special permission to continue working his usual four-day-per-week schedule, rather than the five-day schedule that was the norm in the Services Division. However, he admitted that he was of the opinion that plaintiff had conducted an unauthorized "witch-hunt" of Vines.
Plaintiff initially learned of the transfer from two other officers who suggested that he "get plenty of video tapes and reading material because [he] was going to the 'basement' in the Services Division, [the] property room." According to plaintiff, the EPD's unfinished, windowless basement-level Property Room, where police records and evidential materials, including drugs, weapons and money, were stored, was commonly referred to as the "dungeon." Plaintiff knew that, in this new assignment, he would only be supervising a couple of civilian clerks, rather than six to ten fellow police officers, that he would have limited contact with the rest of the department and none with the public, and that the work he would be performing would not be commensurate with his experience.
Plaintiff insisted that his immediate supervisor in his new position, Captain Matthew Zalinsky, specifically informed him that his office was going to be located in the basement, although all of the other officers assigned to the Services Division, including Zalinsky and another sergeant, as well as nearly all of the civilian clerks, worked out of the first floor. The officers who had previously held plaintiff's new position had had a choice as to the level from which they ...