On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3474-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Ashrafi.
Plaintiff Steven Greenwood appeals from the February 28, 2008 summary judgment dismissal of his complaint against defendants City of Atlantic City (City) and its former mayor, Lorenzo Langford, alleging retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.
The facts of record, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows. Plaintiff, a Caucasian male, has been an employee of the City since May 1993, serving in the capacity of a Supervising Field Representative for the Neighborhood Services, Code Enforcement. Plaintiff was also a member of the Supervisor's Union (Union) since March 17, 1997. Since August 14, 1995, plaintiff has reported to defendant, Gary Alston, an African-American and Chief of Code Enforcement, who in turn reported directly to defendant Thomas Russo, the City's Director of Neighborhood Services. During all relevant times, defendant Langford was the City's Mayor, Benjamin Fitzgerald was the City's Business Administrator, and Domenic Cappella was the Assistant Business Administrator.
According to plaintiff, the City engages in discriminatory hiring practices, which became evident to him around March 2004, when he was directed by Alston, at the Mayor's request, to interview Louis Bell, a resident of the City and an African- American, for a vacant Code Enforcement Inspector position. As part of the interview process, plaintiff "administered a basic inspector's skill test which consists of standard questions that should be common knowledge for an inspector." Plaintiff graded the test, which "Bell . . . failed . . . miserably." Plaintiff advised Alston that, based on the test results, Bell was unqualified for the position. Alston agreed with plaintiff and did not hire Bell as an inspector at the time. However, Bell was hired as a parking meter attendant.
On September 28, 2004, the City posted another job vacancy for a Code Enforcement Inspector. Russo directed plaintiff to review the submitted applications and advise as to the applicants' qualifications. On November 1, 2004, plaintiff advised Russo that only one applicant, Michael O'Hagen, a Caucasian male, was qualified. Subsequently, on November 4, 2004, plaintiff was informed that Bell had been hired.*fn1 On November 15, 2004, plaintiff was also advised that Fred Sutton, a City resident and employee, and an African-American, was being transferred from the City's Mercantile Division and provisionally appointed a Code Enforcement Inspector.
As with Bell, plaintiff considered Sutton unqualified and throughout the month voiced his objection to the hiring of both in a series of memoranda beginning on November 4, 2004, to Alston, Russo, a union representative, the City's Solicitor, the Personnel Director, and ultimately the State Department of Personnel (DOP). Russo responded in a November 23, 2004 memorandum, advising plaintiff that it was "the decision of the appointed Authority as to who would be hired and assigned to the Code Enforcement Office or any other City office, which was the City's policy and which was to be strictly adhered to." Thereafter, plaintiff allegedly "was summoned" to a meeting with Russo and Alston, where he was informed that Bell and Sutton were to be trained as Code Enforcement Inspectors, and that there was no further need to write memoranda to Alston since they physically worked in the same office.
Plaintiff continued voicing his objection. On December 1, 2004, he sent a letter to the DOP Commissioner reporting the City's alleged unlawful practices of hiring unqualified inspectors. On December 7, 2004, plaintiff sent another memorandum to the Commissioner supposedly providing additional information regarding the hiring of Bell and Sutton. On December 9, 2004, plaintiff sent a memorandum to Russo on the same subject.
In the meantime, on September 22, 2004, plaintiff learned through his involvement and deposition in an unrelated federal lawsuit initiated by his former supervisor alleging reverse discrimination and hostile work environment, that Alston, whom he believed not qualified to be Chief, had misrepresented his qualifications in his application to the DOP for that position in 1995. Consequently, plaintiff reported this information to the DOP on December 17, 2004, and in follow-up correspondence on December 22, 2004, requested an agency investigation.
On January 12, 2005, plaintiff received a letter from the DOP's Director of the Merit System Practices and Labor Relations advising that it had requested the City to conduct an investigation into plaintiff's allegations and take appropriate action. Subsequently, on January 13, 2005, plaintiff filed a complaint with the City's Business Administrator and Solicitor requesting an investigation of Alston's alleged falsification of his employment qualifications. Plaintiff also wrote to the DOP's Division of Human Resource Management requesting an investigation of a promotion and raise received by Alston at some unspecified time.
As a result of a February 8, 2005 meeting, the City's Assistant Business Administrator directed the City Solicitor to "launch an investigation at once . . ." into the allegations that Alston falsified his application. The City ultimately determined that despite the misrepresentation on his application, "Alston was qualified for the position [as Chief] at the time of his promotion."
Obviously, the working relationship between plaintiff and Alston deteriorated, prompting a February 15, 2005 memorandum to both from Russo concerning morale in the Code Enforcement Office:
In sum, we expect you both to act as Supervisors. We heard your individual complaints and we attempted to remedy your concerns. However, the City of Atlantic City needs to function and personal differences must be controlled. A non-hostile work environment must be maintained.
Of course, the Administration is sympathetic to your concerns, but your individual differences must not affect your co-workers in the Division. As always, I am available if you have any questions of concerns.
The very next day, plaintiff wrote to Russo informing him that Alston, despite having his own vehicle, had been using the city vehicle assigned to plaintiff during and after work hours. One day later, plaintiff again wrote to Russo advising that the previous afternoon, February 16, 2005, Alston and a co-worker left work early "without advising" him, "[l]eaving no one in charge to handle the office." Plaintiff claimed that this had happened on previous occasions, and he had informed Russo many times of Alston's "lack of communications [sic], supervision, and direction." Finally, plaintiff advised Russo that the clerical staff has told him that "they do not feel comfortable asking [Alston] technical questions due to their experience of getting incorrect answers of misinformation." He claimed these incidents "lend to the hostile environment and frustrations that are taking place here in this office" as Russo was "made aware of and acknowledged on several occasions."
On March 31, 2005, plaintiff wrote to the City's Affirmative Action/Equal Employment Opportunity Officer Barbara Camper, formally complaining of a hostile work environment, retaliation, harassment, and discrimination. He cited the hiring of Bell and Sutton, who he said were unqualified for the position, and Alston's alleged falsifications. For the first time, plaintiff alleged that O'Hagen, the Caucasian applicant who was qualified but not hired, "has been the subject of discrimination by Gary Alston and others with in [sic] the City." Plaintiff also advised Camper that he had filed an "official complaint with the City Solicitor, Business Administrator and the D.O.P.," but that "the City ha[d] not done anything about the situation."*fn2
According to plaintiff, he was retaliated against because of his various complaints. For instance, on December 10, 2004, Alston informed him by memorandum that his work location was being moved:
I have tried to work with you on a professional basis for the last few months and have not been successful. I can not work in a negative atmosphere and be productive. Your attitude, snide remarks[,] and your general demeanor can no longer be tolerated. You have even had the audacity to put a rear view mirror on your computer directed at me.
Four months later, on April 14, 2005, Alston reassigned plaintiff out of the office they shared into "the outer office [which was] the area formerly used by the account clerk[,]" and his computer remained at its former location. Alston explained the reasons for the move in a memorandum of the same date:
For the last two (2) months, I have been basically silent to your allegations and demeanor. I sat in the office that we share and heard you on the phone talking to State Officials as to the status of documents that you requested as to my application. You have had conversations with attorneys as to the validity of some case that you are prepared to bring forth against the City of Atlantic City. You have gone to the length of installing a rear-view mirror on your computer to watch me daily. There is a photo on your wall of a group picture of all the inspectors in 1997, you took a sticky note pad and covered my face. This may sound petty, but this clearly is harassment that I will no longer tolerate. You have single handily [sic] tried to destroy this department by creating a division among all the inspectors.
Effective immediately, your work location shall be moved to the location once occupied by the Sr. Account Clerk. At that location, you will be closer to the inspectors in the outer office. This will give you a better opportunity to be close to them, to oversee there [sic] daily activities.
At this time, I can no longer be in a hostile work environment and share an office with you in your current mind set [sic].
Director Russo and I on many occasions have tried to offer you some motivation, but to no avail. Please note your current computer shall stay in its current location as per my observations it has not been used for City business.
At the time of the move, plaintiff was "promised an office that was formerly used by Director Russo" when the department completed its planned move to another location. After the move, plaintiff was initially placed in a cubicle*fn3 but eventually "moved to the former office that was where the director used to be."
On the same day his office was relocated, plaintiff took sick leave for four weeks. On May 17, 2005, upon returning to work, plaintiff requested to take off three vacation days - May 26, May 27 and June 7, 2005. In a memo dated May 18, 2005, Alston granted the request for June 7, but denied it as to the two other days, noting that plaintiff had just returned on May 16 after being out of work for four weeks; that the staff and he "ha[d] taken on a tremendous workload" during plaintiff's absence; and that he had already scheduled his own vacation time for the end of May.
As noted in Alston's memo, during this time, because the Office of Code Enforcement was short-handed, a backlog of inspections developed. In fact, on February 24, 2005, Alston received a letter from an attorney complaining that his client's inspection applications where "pending for more than 10 days, in violation of the Atlantic City ordinance," and that repeated calls to the Code Enforcement ...