On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1200-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Plaintiff Detective Sergeant First Class Daniel Flaherty appeals from the December 5, 2008 order that granted summary judgment dismissing the two remaining counts of his complaint alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.
Plaintiff is a member of the New Jersey Division of State Police (the NJSP). On May 10, 2006, plaintiff filed a complaint against defendants State of New Jersey; the NJSP; Colonel Joseph Fuentes, the Superintendent of the NJSP; Timothy Goss, a Captain in the NJSP; Manual Quinoa, an investigator of the New Jersey Attorney General's Office; James Barber, a retired Captain of the NJSP; Debbie Edwards, a Senior Deputy Attorney General; Craig T. Sashihara, a Deputy Attorney General; Patrick Reilly, a Captain in the NJSP; William Meddis, a Lieutenant Colonel in the NJSP; Markus Green, Deputy Chief of Staff of the Department of Law and Public Safety; Brian Reilly, a Lieutenant in the NJSP; Herbert Skinner, a Sergeant First-Class in the NJSP; Robert Cicchino, a Major in the NJSP; Kenneth Rowe, a Lieutenant in the NJSP; Edward Donovan, a retired Captain of the NJSP; and Rolando Torres, Jr., the Commissioner of the Department of Personnel. The complaint asserted seven causes of action: hostile work environment in violation of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49 (count one); age discrimination as to promotions and transfers under the LAD (count two); violations of State constitutional rights (counts three and four); violation of CEPA (count five); retaliation under CEPA (count six); and civil conspiracy (count seven).
In lieu of filing an answer, defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, R. 4:6-2(e). On October 12, 2006, the court entered an order that granted the motion in part, dismissing counts one through four, and dismissing all claims as to five individual defendants. On April 13, 2007, the court dismissed count seven, leaving only counts five and six alleging violations of CEPA.*fn1 On August 17, 2007, the court entered an order limiting discovery to events that "occur[red] after February 7, 2005, the date of the accrual of the remaining CEPA claim[s]." On December 5, 2009, the court granted defendants' motion for summary judgment, dismissing the CEPA claims. It is from this order that plaintiff appeals.
Plaintiff graduated from the NJSP Academy in June 1985. The NJSP promoted plaintiff to the position of Detective II on June 13, 1992; to Detective I on December 24, 1994; to Sergeant on February 8, 2003; and to Detective Sergeant First Class on December 25, 2004. Plaintiff alleges that he applied for, but was denied, transfers to various "specialist positions" within the NJSP between May 9, 1995 and October 26, 2001. Plaintiff asserts that in denying him transfers to the specialist positions, the NJSP discriminated against him, perceiving that he was too old to perform the job functions while awarding the positions to members of the NJSP younger than him.
In 2001, plaintiff filed a complaint with the Office of Equal Employment Opportunity/Affirmative Action (EEO/AA) of the Department of Law and Public Safety (the Department) alleging age discrimination as to promotions and transfers in violation of the LAD. On May 31, 2001, then Lieutenant Patrick Reilly interviewed plaintiff regarding his EEO/AA complaint. On May 5, 2003, plaintiff filed a Reportable Incident Form against Patrick Reilly, asserting that the lieutenant had intentionally failed to investigate his EEO/AA complaint, thus allowing NJSP members to retire without internal complaints being lodged against them. On February 7, 2005, plaintiff also reported the suspected violations to the NJSP's CEPA Officer Lieutenant Brian Reilly, Patrick Reilly's brother. Plaintiff alleged that after filing this CEPA complaint he was subjected to "spurious internal investigations, transfers and attempted bribes" to drop the complaint.
On February 20, 2004, the Department through Deputy Chief of Staff Markus Green determined that the acts complained of were not substantiated. Although the Department's determination was rendered in February 2004, defendant was not notified of the decision until January 2005. Plaintiff appealed the decision to the then Merit System Board (the Board) of the Department of Personnel.*fn2 In his appeal, plaintiff disseminated certain confidential documents he obtained while assigned to the NJSP's Internal Affairs Investigation Bureau (OPS), without securing proper authorization to do so. On October 20, 2005, the Board affirmed the Department's determination that plaintiff's age discrimination allegations were unsubstantiated. Plaintiff appealed. On July 3, 2006, we entered an order on plaintiff's motion dismissing the appeal without prejudice.
In the interim, on August 25, 2005, the NJSP filed a disciplinary action against plaintiff for the improper dissemination of the confidential documents, and transferred the case to the Office of Administrative Law (OAL). An Administrative Law Judge granted summary decision on two of three charges and recommended that plaintiff be suspended from duty for five days without pay. On August 1, 2007, the Superintendent of the NJSP upheld the summary decision finding plaintiff guilty of the two disciplinary charges, but increased the suspension from duty to ten days.*fn3
While the disciplinary action was pending, the NJSP transferred plaintiff from the OPS to the Marine Services Bureau (MSB). At the time of transfer, plaintiff held the position of Detective Sergeant First Class and continued in that position while assigned to the MSB. Plaintiff did not suffer any diminution in salary or benefits while at the MSB. Indeed, he received significant voluntary overtime assignments in 2005.
Plaintiff filed his complaint on May 9, 2006. On October 12, 2006, the trial court granted defendants' motion seeking to dismiss the complaint for failure to state a claim upon which relief could be granted in part, dismissing plaintiff's claim for hostile work environment in violation of the LAD (count one); age discrimination as to promotions and transfers under the LAD (count two); and violations of State constitutional rights (counts three and four). The court also granted the motion dismissing all claims as to defendants Fuentes, Meddis, Sashihara, Torres, and Brian Reilly. On April 13, 2007, the court dismissed count seven alleging a claim of civil conspiracy.
On December 5, 2008, the court entered an order supported by an oral decision granting summary judgment, dismissing plaintiff's CEPA claims under counts five and six of the complaint. The court determined that plaintiff failed to prove a prima facie CEPA claim under count five. In so doing, the court concluded that plaintiff failed to present sufficient evidence that he had suffered an adverse employment action to withstand the summary judgment motion. In reaching its decision, the court stated "it's undisputed that plaintiff was transferred from OPS to [MSB]. It's undisputed that he did not ...