On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1427-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Carchman, Messano and Waugh.
In this action brought pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, plaintiff Richard Gacina, a sergeant with the New Jersey State Police, appeals from a final judgment entered in favor of his employer, defendant New Jersey Division of State Police, as well as defendants Colonel Joseph R. Fuentes, Daniel J. Cosgrove, Eric Estok, Manuel Quinoa, Nick Zichello, Warren Shakespeare, and Donald Izzi, D.O., dismissing his action on motion for summary judgment. We affirm.
These are the extensive but relevant facts presented to the motion judge on defendants' motion for summary judgment. Plaintiff, a Caucasian male, began his service as a state trooper in 1986. He was promoted to trooper II in August 1993, to trooper I in February 1996 and to sergeant in January 2002. Over the years, plaintiff, a Clifton resident, was assigned to various barracks in northern New Jersey, including Sussex County, Totowa and Bloomfield. Notably, plaintiff was transferred to the Sussex station on four separate occasions, including one assignment that lasted for four years. Between 2003 and 2005, plaintiff was assigned to the Bloomfield Barracks and was responsible for patrolling the Garden State Parkway (GSP).
Shortly after 1 a.m. on June 5, 2003, plaintiff, while assigned to the GSP, joined several local police units, which were pursuing a suspected stolen motor vehicle on Route 3 East. Although State Police assistance had not been requested, plaintiff passed the other units and became the primary pursuer as the chase continued down Route 21 South and into the City of Newark. According to the video tape recording system on plaintiff's cruiser (the MVR tape), plaintiff passed the other units on the right, failed to activate his siren and went through two stop signs and five red lights in both commercial and residential sections of Newark without braking. Plaintiff reported that he traveled at speeds up to 85 miles per hour and that the road surface was wet. The pursuit continued for seven minutes within the confines of Newark before ending in an accident when the stolen vehicle struck a parked car.
Following this incident, Station Commander Shakespeare reviewed the MVR tape and the reports of both plaintiff and plaintiff's immediate supervisor, Staff Sergeant John O'Rourke. Shakespeare prepared a pursuit review report, and he concluded that plaintiff had not violated the New Jersey Police Vehicular Pursuit Policy, otherwise known as SOP F-15. SOP F-15 sets forth guidelines to assist state troopers in: (1) deciding whether to pursue a motor vehicle; (2) ensuring that pursuits are undertaken in as safe a manner as possible; and (3) deciding when to terminate a pursuit. However, Troop Commander Cosgrove rejected Shakespeare's assessment of the pursuit, concluding instead that plaintiff had violated SOP F-15 when he failed to activate his siren upon joining the pursuit and repeatedly failed to brake before entering controlled intersections. Cosgrove directed that a performance notice (PN) for an appraisal interview be issued to plaintiff.*fn1 A PN appraisal interview is the lowest type of performance intervention and does not affect an officer's salary or benefits.
On October 31, 2003, the State Police Motor Vehicle Accident and Vehicular Pursuit Review Board (the Board) reviewed the June 5, 2003 pursuit, concurred with Cosgrove's findings, and directed that: (1) plaintiff, O'Rourke and Shakespeare receive additional training on SOP F-15; and (2) Cosgrove initiate an internal investigation regarding the pursuit. Lieutenant G. Barbato subsequently conducted this internal investigation and ultimately issued a Performance Incident Disposition Report (PIDR) dated February 17, 2004, wherein he faulted plaintiff for assuming control over a non-GSP pursuit and then continuing the pursuit within Newark. The Office of Professional Standards (the Office) concurred with Barbato's findings and the actions taken to address the violations, and closed the matter.
At his deposition, plaintiff acknowledged that he never reviewed the June 5, 2003 MVR tape and further admitted that Cosgrove was correct in his interpretation of SOP F-15. He also confirmed that he did not submit a request to be heard before the Board and did not appeal its ruling.
After the June 5 pursuit, another incident occurred involving plaintiff. At 1:53 a.m. on June 10, 2003, plaintiff observed a driver "taunting" another motorist on the GSP. Plaintiff pursued the driver at speeds of up to 85 miles per hour north on the GSP, onto Route 46 East, and then onto the streets of Hackensack. At that point, O'Rourke terminated the pursuit since the driver had committed only traffic offenses.
Although Shakespeare found no violation of SOP F-15 by either plaintiff or O'Rourke in connection with this pursuit, Cosgrove again disagreed. Cosgrove concluded that plaintiff had violated SOP F-15 by driving through a red light on Route 46 without slowing down and failing to activate his siren. He directed that a PN for an appraisal interview be issued to plaintiff. The Board concurred with Cosgrove's findings and recommended that plaintiff and Shakespeare receive training regarding SOP F-15. It also recommended that an internal investigation be conducted. Barbato subsequently prepared a PIDR wherein he concurred with the findings of both Cosgrove and the Board, as well as the actions taken to address the violations. The Office adopted Barbato's findings, and closed the matter. No appeal was taken from this disposition.
Within months, a third incident occurred. At 2:26 a.m. on August 25, 2003, plaintiff learned that local police were following a stolen car that was exiting the GSP North onto Route 3 East. Plaintiff also exited onto Route 3 East and, at the exit for Route 21 South, caught up to the pursuit, in which three Clifton and Bloomfield units were already participating. Plaintiff and the other units followed the stolen vehicle as it exited Route 21 South at Exit 5, traveled into Belleville and finally crashed into a parked car.
Neither Shakespeare nor Cosgrove found that plaintiff specifically violated SOP F-15 in connection with this pursuit. However, on October 1, 2003, Cosgrove nonetheless issued a PN for counseling to plaintiff based upon his finding that plaintiff was unjustified in his decision to join in a pursuit which already involved three other police units six miles from the GSP without a specific request for assistance.
In response to the October 1, 2003, PN, plaintiff prepared a special report to Cosgrove on October 6, 2003, entitled "Justification for Assisting Local Police Department." In this report, plaintiff wrote, in pertinent part:
The purpose of this correspondence is twofold. For one, I seek to clarify my true intentions regarding this, and future situations which may be similar in nature. Secondly, I would like an opportunity to "defend" my actions as they pertain to this particular matter.
As you know, the "shirking of danger" and "failure to take proper police action" is [sic] due cause for neglect of duty charges pursuant to the Rules and Regulations of the New Jersey State Police. These offenses are strictly forbidden under the "Performance of Duties" clause. To expect this member to engage in an apathetic manner and effectively "look the other way" is not only unjustifiable, but borders on the aforementioned "neglect of duty."
Having firsthand knowledge that crimes were being perpetrated in my direct vicinity, I felt compelled to act accordingly. Moreover, at the time in question, there were no pressing matters which required my attention. With this in mind, I had no plausible excuse for not assuming a "back-up" role in rendering assistance.
It is my estimation that there is never too much police presence in matters such as this. Too often, we have witnessed the tragic results brought about by such inefficient regard for these calls for assistance. To this end, I must inform you that this member is incapable of refusing assistance to other brother officers - especially when the crime-in-progress is traversing my area of responsibility.
Please rest assured that all of my actions are rooted in a firm belief that paramount is the safety of the public we are sworn to protect. Equally important, however, is performing our duties as mandated by the oath we pledged, and the professional and legal requisites of our "Rules and Regulations."
In late 2003, well after these various pursuits, Staff Sergeant E. Swiderski became plaintiff's new supervisor. In early January 2004, Swiderski prepared plaintiff's 2003 performance evaluation spanning the period from November 1, 2002, through December 31, 2003. Swiderski rated plaintiff "above average" or "exceptional" in each of the eleven assessment areas. However, on January 20, 2004, Shakespeare prepared an addendum to that evaluation wherein he lowered plaintiff's rating in three categories to "satisfactory" based upon the PN's plaintiff received in connection with the June and August 2003 pursuits. Shakespeare noted that Swiderski's evaluation had not encompassed these events since they predated his assumption of supervisory authority over plaintiff, and that, as station commander, it was his responsibility to ensure the accuracy of all evaluations. Shakespeare denied that he prepared the addendum at the behest of Cosgrove.*fn2
Meanwhile, in late 2003, plaintiff had submitted for possible publication a draft of an article to the editors of NJCOPS, a monthly trade journal, without securing the required prior approval from Colonel Fuentes, superintendent of the State Police. The article addressed civil immunity for law enforcement officers who become involved in motor vehicle accidents while engaged in pursuits. Although plaintiff subsequently sought permission to publish his article, Fuentes denied plaintiff's request, citing the confidential matters discussed in the article. Notwithstanding this denial, plaintiff proceeded to publish his article in February 2004. As a result, plaintiff received a written reprimand on March 3, 2004, for failing to follow a direct order.
On March 26, 2004, plaintiff left the barracks to begin his patrol duties leaving a frying pan he had used to cook his breakfast sitting on top of the stove in the barracks' kitchen. O'Rourke subsequently notified plaintiff that Shakespeare wanted him to return to the barracks the next time he was in the area and put the pan away. According to plaintiff, O'Rourke told him that Shakespeare was annoyed. Plaintiff subsequently complied. He was not disciplined for this incident.
In late September 2004, plaintiff's wife called the State Employee Assistance Program (EAP) because of plaintiff's alleged alcohol abuse. The EAP is a confidential program that provides assistance to all employees and their families. Apparently, plaintiff had a long-standing habit of consuming a minimum of twelve beers per night which was causing a great ...