November 16, 2010
RICHARD GACINA, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, STATE OF NEW JERSEY - DIVISION OF STATE POLICE, COLONEL JOSEPH R. FUENTES, SUPERINTENDENT OF THE NEW JERSEY STATE POLICE, DANIEL J. COSGROVE, ERIC ESTOK, MANUEL QUINOA, NICK ZICHELLO, WARREN SHAKESPEARE, AND DONALD IZZI, D.O., DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 deal of family conflict and had resulted in his experiencing blackouts, tremors and paranoia.
Plaintiff was subsequently admitted to an inpatient detoxification program at the Sunrise House but left after several days without completing the program. Notably, in conjunction with his admission to Sunrise House, on September 22, 2004, plaintiff signed an EAP consent to release confidential information whereby he authorized EAP to "disclose to/obtain from" the State Police's Medical Services Unit a variety of medical records for "EAP support." Thereafter, plaintiff enrolled in an outpatient program at the High Focus Center and remained on sick leave through October 21, 2004.
Upon his return to work, plaintiff was placed on light duty through the end of February 2005.
On January 12, 2005, Cosgrove and Shakespeare attended a meeting during which promotions were considered. Plaintiff was not promoted. At his deposition, plaintiff asserted that he should have been promoted to staff sergeant or sergeant first class based upon his years of service and impeccable record. Plaintiff insisted that he was actually "exonerated" of any wrongdoing in connection with the three 2003 pursuits since he received only PNs as opposed to written reprimands. He acknowledged that he received a written reprimand and a two-day suspension in 1988, as well as a second reprimand in 2004 for disobeying a direct order. Plaintiff was unable to name any officer who was promoted instead of him.
In late January 2005, plaintiff's then-station commander Lieutenant Estok spoke to plaintiff about coming to work late and improperly arranging overtime for himself. In February 2005, Estok ordered plaintiff to remove personal photos from the desk he was using while on light duty at the conclusion of every shift. This desk was also used by numerous other officers, and Estok told him that someone had nearly spilled coffee on the photos.
A month later, Estok became aware that plaintiff's personal car and another trooper's car had expired inspection stickers, in plaintiff's case, dating to June 2003. He ordered plaintiff and the other trooper to get the cars inspected. Believing that the car would not pass inspection, plaintiff instead took a black marker and altered the sticker so that it read "2008" rather than "2003." Estok discovered plaintiff's actions and reported the alteration which resulted in the issuance of two summonses to plaintiff for failure to have his vehicle inspected and for displaying a fictitious inspection sticker. Plaintiff pled guilty in municipal court to the failure-to-inspect charge, and the second charge was dismissed.
An internal affairs investigation followed, and plaintiff was charged with conduct unbecoming an officer, disobeying a direct order and violating New Jersey law. After a hearing in the Office of Administrative Law (OAL), the Administrative Law Judge found that plaintiff had admitted to the alleged wrongdoing and ordered that he be suspended for thirty days. Plaintiff appealed solely as to the length of his suspension.
On March 23, 2005, plaintiff left a flannel shirt on a chair in the barracks' common area. As plaintiff was walking out the door to start his patrol, Estok told him to put it away in his locker, but plaintiff disregarded this directive and left the station. Plaintiff explained that he did not want to confront Estok and that it was more important for him to begin his patrol duties. When he returned at lunchtime, Estok spoke to him again, and plaintiff finally moved the shirt. Immediately thereafter, plaintiff, who was feeling stressed, went home sick. Notably, although plaintiff felt that Estok had unfairly singled him out, he acknowledged that, after this incident, no one in the barracks left their personal belongings in the common area, in accordance with Estok's general directive.
Within a week of the shirt incident, plaintiff submitted a special report alleging that Estok was permitting "open air sports betting on a Super Bowl contest which required significant wagers, and transactions of cash all in the public's view." Plaintiff explained that he did not believe that any laws were being violated, but he felt compelled to object to this unprofessional behavior after he was criticized for leaving his personal clothing lying about. During the course of the resulting investigation, over fifty-one people were interviewed, including Estok, and each denied that the pool document was ever in public view. Plaintiff's allegations were ultimately deemed less than credible, and no action was taken against Estok.
Plaintiff and his attorney, subsequently, met with Quinoa, the chief state investigator of the Office of State Police Affairs, and retired State Investigator Zichello. Plaintiff told Quinoa and Zichello that he received documents from an anonymous third party indicating that Cosgrove had participated in an unauthorized pursuit away from the GSP and then falsified the records pertaining to this pursuit to avoid disciplinary action. Plaintiff acknowledged that he had no first-hand knowledge of the alleged pursuit.
According to Quinoa, plaintiff refused to provide him or Zichello with copies of the documents supporting his allegations. Nonetheless, Quinoa completed and filed a New Jersey State Police Reportable Incident Form. Quinoa and Zichello interviewed Cosgrove who explained that, on July 1, 2004, he participated in what he originally reported as a pursuit in Lakewood, while driving a car that was not equipped with an MVR tape. Lieutenant Michael Cerisano, the Regional Traffic Officer in charge of reviewing all state police pursuits, approached Cosgrove the next day, after reading the police teletype regarding the incident, to learn the details of what had occurred. Cerisano concluded that the incident did not constitute a pursuit under the guidelines of SOP F-15, but should have been reported under the category of "fleeing felon."
Cerisano took it upon himself to correct Cosgrove's report and remove the incident from the pursuit log. Quinoa submitted the necessary reports regarding his investigation and the Office of State Police Affairs ultimately concluded that plaintiff's complaint against Cosgrove was unfounded. Apparently, later, Captain Roselle, after listening to the radio communications related to the incident, thought Cosgrove might have violated SOP F-15 and heard that Cosgrove authorized the record change. None of this information was available to plaintiff at the time of his allegation regarding Cosgrove's conduct.
Meanwhile, on April 7, 2005, Estok met with several officers to discuss their concerns regarding plaintiff's stability and competence as a patrol supervisor. Estok subsequently called Karen Husband of the EAP, who advised that Estok could send plaintiff home on sick leave and refer him to EAP. Estok and Sergeant Robert Catullo then summoned plaintiff to a meeting, but plaintiff refused to attend. Ultimately, plaintiff appeared, armed with a tape recorder (which was later determined to malfunction) and accompanied by Swiderski. Estok informed plaintiff that he was "tired of him being insubordinate and disrespectful" and "using his position to abuse younger Troopers." Estok stated that he was referring plaintiff to EAP for assistance.
According to Estok, at this point plaintiff became enraged, and Estok relieved him of his patrol responsibilities and ordered him to remain at the barracks for the day. Plaintiff denied that he was enraged. When plaintiff refused to remain at the barracks, Estok ordered him home on an indefinite medical leave. Estok subsequently charged plaintiff with insubordination. After a hearing in the OAL, which also considered the photo and jacket incidents, the subordination charge was sustained, and plaintiff received a ten-day suspension without pay. The two other charges were dismissed.
At his deposition, plaintiff claimed that either Quinoa or Zichello, or both, must have called Cosgrove immediately after their April 5, 2005 meeting, and informed him of plaintiff's supposedly confidential accusations, because that was the "only" explanation for Estok ordering plaintiff to EAP and thereafter suspending him. Both Quinoa and Zichello denied that they contacted Cosgrove immediately after the April 5, 2005 meeting or revealed to Cosgrove that plaintiff had precipitated the investigation.
As a result of the April 7, 2005 incident, Dr. Donald Izzi, the State Police medical director, sent plaintiff to the Institute for Forensic Psychology for a fitness for duty examination. This examination was conducted by Dr. Irving Guller on April 18, 2005, and plaintiff was deemed fit to return to full duty. Guller did recommend that "[i]t may be beneficial for all involved to consider transferring [plaintiff] to another unit where he does not come in contact with specific individuals."
According to plaintiff, on April 26, 2005, he met with an EAP employee and turned over a timeline and supporting documentation pertaining to the retaliation he believed he had suffered at the hands of his superiors. This unnamed employee had apparently promised to forward the documents directly to Fuentes. Plaintiff understood that this employee actually had a meeting with Fuentes the following day and handed him the documentation.
On May 4, 2005, plaintiff learned that he was being transferred to the Sussex Barracks. Because of the distance between his home and that barracks, plaintiff believed that this transfer was in retaliation for his complaints of gambling at the Bloomfield barracks and had been orchestrated by Fuentes. At his deposition, though, plaintiff admitted that he had no proof that Fuentes retaliated against him. In any event, plaintiff's assignment to this barracks lasted only ten working days, and he was then reassigned to the Totowa station. At his deposition, plaintiff acknowledged that neither his pay nor his benefits were ever reduced between 2003 and 2005.
Plaintiff filed his complaint later that same month. Plaintiff asserted that, as a result of the State Police's improper racial profiling practices, the State of New Jersey and the federal government had entered into a consent decree in 1999 whereby the State Police came under the monitoring of the United States Department of Justice. With respect to the consent decree, plaintiff alleged:
48. The Consent Decree should have had the effect of showing the State of New Jersey Division of State Police that the Division was fundamentally flawed in its operation, management, and practices.
49. Instead, the Consent Decree had a quite different effect. Whether, as a result of a[n] affirmative decision on the part of the State Police Command or as a result of a fundamental misunderstanding of the proper role of a law enforcement organization in the twenty-first century, the Consent Decree simply changed a racist but assertive police organization to a racist but sedentary police organization.
According to plaintiff, because the State Police did not know how to function as an aggressive law enforcement agency without relying upon racial profiling, it decided to limit the number of interactions between its troopers and the public. Specifically, plaintiff accused the State Police as follows:
52. As a result, the defendant State Police, undertook a policy of "De-Policing." This tactic is generally recognized among leading scholars and journalists who deal with law enforcement issues. The term "De-Policing" has been defined as: "when officers, on their own, decide to stop taking pro-active steps to engage citizens. Their point of view is that if they don't initiate contact with members of the public, they can't be accused of using racial biases."
Plaintiff asserted that, in accordance with this new policy, troopers were discouraged from becoming involved in any motor vehicle pursuits and also from coming to the aid of local police officers, even when requested to do so. In his own case, plaintiff alleged that, because of his decision to engage in pursuits despite the De-Policing Policy, he was denied promotions, retaliated against, and generally harassed by his superiors. In support of these claims, plaintiff prepared charts documenting the number and types of arrests made by each of six state police barracks per year between 1995 and 2005. Plaintiff also relied upon entries made in Estok's work diary, one of which, dated March 22, 2005, noted that the "Captain" had instructed Estok to "document everything & try to have a [trooper] come forward when [plaintiff] doesn't comply with [sic] or abuses junior [troopers]."
Following discovery, defendants moved for summary judgment, which was granted. This appeal followed.
On appeal, plaintiff asserts that the motion judge erred in granting summary judgment. Among other claims, plaintiff contends that counsel for defendants was improperly in possession of plaintiff's EAP records. This particular claim arises in the following factual context and can easily be resolved.
As we previously noted, when plaintiff sought treatment for his alcoholism in September 2004, he signed a consent form authorizing EAP to disclose information to or obtain information from the State Police's Medical Services Unit for "EAP support." In May 2005, plaintiff filed his complaint seeking damages for intentional infliction of emotional distress as well as an "Improper Use of the Medical Office and Employee Assistance Program." Plaintiff alleged that Estok violated procedures and "undertook to use the EAP as an instrument of spurious discipline" against him when Estok contacted Husband on April 7, 2005, to gain the EAP's support for his determination that plaintiff was unfit for duty. Plaintiff further alleged that, despite the fact that Medical Director Izzi "knew or should have known" that Estok's actions on April 7, 2005, were retaliatory in nature, Izzi nonetheless "willingly participated in a scheme to cast doubts upon . . . [plaintiff's] credibility" when he subsequently referred plaintiff for a fitness for duty examination.
On February 13, 2006, plaintiff signed a HIPAA-compliant authorization which permitted the Medical Services Unit to release all of plaintiff's medical records to plaintiff's counsel. However, records responsive to this request were actually forwarded first to the Attorney General, and then to plaintiff's counsel.
Plaintiff subsequently prepared special reports addressed to his superiors dated September 7, 2006, and September 12, 2006, alleging a HIPAA violation. Specifically, plaintiff alleged that "someone" had gone into his EAP file and provided the Attorney General's office with his highly sensitive medical records. On October 11, 2006, a deputy attorney general advised plaintiff that there had been no HIPAA violation since the information had been released pursuant to written authorization.
Thereafter, in 2007, defendants sought discovery from EAP, High Focus Center and Richard Kleinmann, M.D., of all of plaintiff's medical records between 2000 and 2005. On March 30, 2007, the judge ordered plaintiff to execute a HIPAA release for these records. Plaintiff unsuccessfully moved for leave to appeal, but notwithstanding this denial, plaintiff continued to refuse to release the subject medical records to defendants.
Ultimately, on July 13, 2007, the trial judge entered an order directing plaintiff to provide the records to defendants and also directing defendants to keep the records confidential.
In his decision dismissing this claim, the trial judge did not address the specific allegations, but instead found that, notwithstanding the various releases signed by plaintiff, certain of plaintiff's medical records had evidently been released in violation of an unidentified state police regulation.*fn3 However, the judge was satisfied that, while plaintiff had been aggrieved by this, there was no cognizable cause of action in the federal or state courts for this administrative violation.
Plaintiff now insists that he is entitled to unspecified relief because defendants utilized a non-HIPAA compliant release to gain access to his EAP records. However, we note that plaintiff's complaint does not actually contain any claim alleging a HIPAA violation. Moreover, even assuming arguendo that defendants may not have been entitled to access plaintiff's records pursuant to the original releases signed by plaintiff in 2004 and 2006, the appropriate release was signed by plaintiff in 2007. This renders this aspect of plaintiff's argument moot.
We likewise reject plaintiff's further contention that the court-ordered release of his treatment records was improper because he never placed his emotional and mental state at issue.
The psychologist-patient privilege is waived when a plaintiff-patient places his or her emotional and mental state at issue by seeking damages for emotional distress. Kinsella v. Kinsella, 150 N.J. 276, 307 (1997); Arena v. Saphier, 201 N.J. Super. 79, 81 (App. Div. 1985). Here, plaintiff sought damages for intentional infliction of emotional distress. By making this claim, plaintiff established a basis for defendants to seek discovery regarding plaintiff's medical and mental status. While plaintiff ultimately dismissed this claim, he did not formally do so until the unrecorded hearing on defendants' summary judgment motion in April of 2008. Defendants were entitled to the discovery they received.
In sum, we find no merit to plaintiff's claims that he is entitled to relief for improper access to his medical records or that the judge erred in granting summary judgment on this issue.
Plaintiff further asserts that the judge improperly granted summary judgment. Pursuant to Rule 4:46-2, summary judgment shall only be granted in the absence of a genuine issue as to any material fact challenged and where the moving party is entitled to judgment as a matter of law. The Supreme Court established the summary judgment standard in Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995), noting that a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
The Brill Court emphasized that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment."
Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).
In his decision granting summary judgment, the trial judge initially categorized some of the counts of plaintiff's complaint as containing CEPA claims and others as claims implicating New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The judge then dismissed the "LAD" claims because plaintiff was not a member of a protected class and because there was nothing in the record that suggested that plaintiff's superiors were motivated by discriminatory animus in their dealings with him.
He next summarized plaintiff's CEPA claims as follows:
Now, plaintiff here claims that he suffered retaliatory employment action [because he] . . . report[ed] Major Cosgrove to the Office of State Police Affairs on April 5, 2005 for . . . falsifying records to gloss over [a pursuit] violation[,] . . . submi[tted] . . . a special report on March 29, 2005 in which he complained of open air sports betting . . . [a]nd refus[ed] to participate in de-policing . . . .
He identified nine actions taken by plaintiff's superiors which plaintiff claimed were retaliatory: (1) requesting that plaintiff wash a frying pan, remove a jacket and clear a desk of personal belongings; (2) issuing PNs to plaintiff in connection with the pursuits in June and August 2003; (3) preparing an addendum to plaintiff's 2003 evaluation; (4) issuing a written reprimand on March 3, 2004 in connection with plaintiff's publication of an article; (5) placing plaintiff on suspension for his actions in connection with his expired inspection sticker; (6) placing plaintiff on suspension following the events of April 7, 2005; (7) referring plaintiff for a fitness for duty examination; (8) reassigning plaintiff to the Sussex barracks; and (9) failing to promote plaintiff to Sergeant First Class on January 12, 2005.
The judge was satisfied that none of the alleged negative actions constituted retaliatory actions sufficient to establish a prima facie CEPA claim. He noted that plaintiff suffered no loss of rank or compensation, and that his transfer to the Sussex barracks lasted only ten days. Accordingly, the judge dismissed the various CEPA claims as well.
On appeal, plaintiff makes the following arguments in support of his position that summary judgment was improperly granted: (1) "[o]nce [plaintiff] advised  Cosgrove that he would not be willing to ignore his duties, he became  Cosgrove's personal target for destruction;" (2) defendants have never denied any of plaintiff's allegations, but have merely taken the "deflecting" position that plaintiff's allegations are not worth examining because he "had a problem with alcohol;" and (3) "[i]nstead of dealing with the issues on the summary judgment motion, the trial judge simply pretended that he did not understand the concept that such investigations and bogus charges could be used for illicit purposes." Not only are these assertions factually inaccurate, but they are wholly inadequate for purposes of this appeal. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (noting that it is essential for a party to present an adequate legal argument). In sum, plaintiff has failed to make any substantive argument in support of the viability of any of his claims.
Summary judgment was properly granted here.*fn4 Under CEPA, an employer may not take retaliatory action against an employee because that employee has disclosed "to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law."
N.J.S.A. 34:19-3(a) (emphasis added). A CEPA plaintiff "must show that his belief that illegal conduct was occurring had an objectively reasonable basis in fact--in other words that, given the circumstantial evidence, a reasonable lay person would conclude that illegal activity was going on." Regan v. City of New Brunswick, 305 N.J. Super. 342, 356 (App. Div. 1997) (internal quotation marks omitted).
[t]he protection against retaliatory action provided by this act pertaining to disclosure to a public body shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice. Disclosure shall not be required where the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer or where the employee reasonably fears physical harm as a result of the disclosure provided, however, that the situation is emergency in nature. [N.J.S.A. 34:19-4.]
As an initial matter, plaintiff offers no argument to demonstrate how his views on alleged "de-policing" constitute a protected activity under CEPA. Indeed, his vague allusions to "de-policing" render this case distinguishable from the situation presented in Maimone v. City of Atlantic City, 188 N.J. 221, 233-39 (2006), wherein the Court found a viable CEPA claim to exist where a law enforcement employee was specifically instructed by the defendant police department not to initiate new prostitution investigations and was transferred from a detective position to a patrol position after he objected in writing to the department's refusal to enforce a specific penal statute (prohibiting operation of a sexually oriented business within 1000 feet of a school and synagogue) against a specific sexually-oriented business.
Rather, this case is analogous to Schechter v. New Jersey Dep't. of Law & Pub. Safety, 327 N.J. Super. 428, 432 (App. Div. 2000), where we affirmed the trial judge's finding that an employee's allegations about the Division of Gaming Enforcement's failure to pursue the exclusion of certain persons from casinos under the Casino Control Act was "nothing more than a policy dispute . . . concerning the priority to be assigned to exclusion cases." As in Schechter, the allegations here, even if accepted as true, amount to little more than a dispute about the State Police's internal policies concerning vehicular pursuits.
Beyond the threshold issue of whether plaintiff engaged in a protected activity, his claims were also subject to dismissal due to the absence of any actionable adverse employment action. CEPA defines actionable retaliation as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). Qualifying "other adverse employment actions" must constitute "serious intrusions into the employment relationship beyond those solely affecting compensation and rank." Beasley v. Passaic Cnty., 377 N.J. Super. 585, 608 (App. Div. 2005).
Retaliation under CEPA need not be a single discrete action; rather, it can include "many separate, but relatively minor instances of behavior directed against an employee that may not be actionable individually, but that combine to make up a pattern of retaliatory conduct." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003); accord Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 435 (App. Div. 2005). A "pattern of conduct by an employer that adversely affects an employee's terms and conditions of employment can qualify as retaliation under CEPA." Beasley v. Passaic Cnty., supra, 377 N.J. Super. at 609.
Neither an investigation of an employee nor substantiated disciplinary charges are considered retaliatory. Id. at 606; Hancock v. Borough of Oakland, 347 N.J. Super. 350, 361 (App. Div. 2002). Further, "[w]here the affected party does not deny committing an infraction that resulted in discipline, the discipline cannot be considered proscribed reprisal." Beasley v. Passaic Cnty., supra, 377 N.J. Super. at 607 (internal quotation marks omitted). The imposition of a minor sanction is also insufficient to constitute a retaliatory action under CEPA. Hancock, supra, 347 N.J. Super. at 360. Likewise, being ordered to undergo a psychological evaluation does not constitute an adverse employment action as a matter of law. Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005); Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.), cert. denied, 531 U.S. 816, 121 S.Ct. 52, 148 L.Ed. 2d 21 (2000). Additionally, "[r]escinded employer action that makes plaintiff completely whole and remedies a prior decision cannot constitute an adverse employment action." Beasley v. Passaic Cnty., supra, 377 N.J. Super. at 607.
Our review of the records reveals that: (1) the three instances involving the frying pan, the jacket and the pictures were insignificant, bordering on de minimus, and resulted in no sanctions; (2) the PNs plaintiff received in connection with the June and August 2003 pursuits predated his October 6, 2003 special report to Cosgrove wherein he declared that he could not act in violation of his duty to be a proactive officer, and were nothing more than minor sanctions for misconduct for which plaintiff was not exonerated; (3) there were no inaccuracies in the 2003 performance evaluation addendum prepared by Shakespeare, and plaintiff's final evaluation for that year was not negative; (4) the March 3, 2004 written reprimand was warranted since plaintiff admitted that he published his article in violation of a direct order; (5) plaintiff's inspection sticker-related suspension was likewise warranted since plaintiff admitted disobeying a direct order and altering the sticker; (6) the insubordination charge pertaining to the events of April 7, 2005 was upheld by the OAL; (7) a referral for a psychological examination is not considered an adverse employment action; (8) plaintiff's transfer to the SusseX barracks, a barracks to which he had previously been assigned while still living in Clifton, lasted only ten working days, and was made at the recommendation of Guller following plaintiff's fitness for duty examination; and (9) plaintiff presented no proof that he was passed over for promotion in favor of someone less qualified.
While it is true that there were two charges filed against plaintiff that were ultimately dismissed by the OAL, in all other instances, plaintiff was properly disciplined for acts of misconduct that were either admitted or deemed substantiated. Plaintiff was not subjected to a pattern of wrongful retaliatory conduct, and he suffered no loss of pay, benefits or rank. In sum, the record does not support a claim that he was subjected to any adverse employment action in violation of CEPA.
The judge properly granted defendants' motion for summary judgment.
Finally, we dismiss without the necessity of further comment, plaintiff's assertion that somehow defendants made "unusual" use of discovery rules and deprived plaintiff of full discovery. The record is to the contrary.