January 11, 2011
DANIEL FLAHERTY, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY; STATE OF NEW JERSEY - DIVISION OF STATE POLICE;
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY;
COL. JOSEPH R. FUENTES; CAPTAIN TIMOTHY GOSS; MANUAL P. QUINOA;
CAPTAIN JAMES BARBER (RETIRED); DEBBIE EDWARDS, SENIOR DEPUTY ATTORNEY GENERAL;
CAPTAIN PATRICK REILLY; LT. COL. WILLIAM MEDDIS; MARKUS GREEN, DEPUTY ATTORNEY GENERAL;
S.F.C. HERBERT SKINNER; LT. BRIAN REILLY; CRAIG T. SASHIHARA, DEPUTY ATTORNEY GENERAL;
MAJOR ROBERT CICCHINO; LT. KENNETH ROWE;
CAPTAIN EDWARD DONOVAN (RETIRED) AND ROLANDO TORRES, JR., DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 experience any significant decrease in salary, fringe benefits, commute, hours of work or any alteration of the terms and conditions of his employment."
As to count six alleging retaliation under CEPA, the court determined that defendants had proffered a legitimate, non-retaliatory reason for transferring plaintiff to the MSB, that is, plaintiff's violation of the NJSP's confidentiality rules and regulations. Because there was no evidence indicating that this reason was pretextual, the court concluded defendants were entitled to summary judgment on the retaliation claim.
On appeal, plaintiff argues that the trial court erred: 1) in granting defendants' Rule 4:6-2(e) motion dismissing the LAD claims, contending defendants had failed to assert a legitimate non-discriminatory reason in making decisions that adversely affected his employment; 2) in granting summary judgment on the CEPA claims as he had presented sufficient material facts to withstand the motion; and 3) in limiting discovery to events that occurred post-February 7, 2005.
We first address plaintiff's arguments challenging the trial court's grant of defendants' motion to dismiss the LAD claims. We decline to consider plaintiff's arguments for procedural reasons. Plaintiff's LAD claims were dismissed under the trial court's October 12, 2006 order. However, the notice of appeal only states that plaintiff is appealing from the December 5, 2008 order granting summary judgment on the CEPA claims. Because the notice of appeal does not indicate that plaintiff is appealing the October 12, 2006 order, plaintiff is prohibited from raising arguments challenging the dismissal of the LAD claims. See Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2011) (stating that "it is clear that it is only the judgment or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review"). Although a civil case information statement (CIS) serves the same essential purpose as a notice of appeal, that is, it places the adversary on notice of the intended scope of the appeal, and thus, should be read in conjunction with the notice of appeal to determine the propriety of arguments presented by the appellant, Ahammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007), the CIS does not indicate that plaintiff is appealing from any order other than the December 5, 2008 order.*fn4
Substantively, we conclude the trial court properly dismissed plaintiff's LAD claims pursuant to Rule 4:6-2(e). Plaintiff's arguments challenging the dismissal of the LAD claims are without merit.
On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard. "'[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn'" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). Every reasonable inference is accorded the plaintiff, Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), and the motion is "granted only in rare instances and ordinarily without prejudice." Pressler & Veniero Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2011).
While the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint,"
Printing Mart-Morristown, supra, 116 N.J. at 746, the reviewing court must "view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Accordingly, "the test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). On appeal, our standard of review is the same as the trial court's. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005).
LAD claims based on events occurring after July 27, 1993, are subject to a two-year statute of limitations. Montells v. Haynes, 133 N.J. 282, 292, 298 (1993). The accrual date for discrete acts, such as "failure to promote [or] denial of transfer" are the dates on which the events occurred. Shepherd v. Hunterdon Developmental Ctrs., 174 N.J. 1, 19, 21 (2002). Here, plaintiff's allegations alleging discrimination in failure to promote and transfer occurred between May 9, 1995, and October 26, 2001. Plaintiff did not file his complaint until May 10, 2006. Accordingly, those claims are time barred.
We also conclude that the trial court correctly dismissed plaintiff's hostile work environment claims. To establish a prima facie claim for hostile work environment, a plaintiff must meet a four-prong test. The plaintiff "must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and the working environment is hostile or abusive." Shepherd, supra, 174 N.J. at 24.
In support of his hostile work environment claim, plaintiff alleged that defendants expressed "discriminatory animus and prejudice toward minority and female troopers." Plaintiff also alleged that he had observed "countless acts of racism, sexism, ageism, and other forms of bigotry exhibited [by] Troopers and Officers of [the NJSP] again directed toward citizens, minority Troopers and Sergeants" and against those members of the NJSP "who were not willing to demonstrate an equally bigoted proclivity." However, plaintiff's complaint does not allege that he is within either of those protected classes. Nor does the complaint allege that defendants harassed him because of gender or race. Accordingly, we affirm the dismissal of the LAD claims. Shepherd, supra, 174 N.J. at 24.
Plaintiff argues that the trial court's decision to limit discovery to events occurring after February 7, 2005, was improper because "[t]he entire basis of the claim revolves upon a systemic and deliberate failure on the part of the State Police to provide [plaintiff] with the information necessary to establish a claim, the origins of which date back to at least 2001." We disagree.
Appellate courts grant deference to trial courts' discovery rulings and will only reverse such decisions if they constitute an abuse of discretion. Wilson v. Amerada Hess Corp., 168 N.J. 236, 253 (2001); Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997). However, a trial court's "'interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference.'" Isetts v. Borough of Roseland, 364 N.J. Super. 247, 253 (App. Div. 2003) (quoting Manalapan Realty, L.P., supra, 140 N.J. at 378). Here, plaintiff has not shown an abuse of discretion or misinterpretation of the law.
After the court dismissed counts one through four and count seven, plaintiff's remaining claims were the CEPA claims under counts five and six, wherein plaintiff alleged that defendants had initiated retaliatory actions against him because he had filed an internal complaint against Patrick Reilly on February 7, 2005. Plaintiff alleged that Reilly was not properly performing his job functions. Because the trial court had already dismissed all claims except the CEPA claims before it entered the August 17, 2007 discovery order, we conclude that the trial court did not abuse its discretion in limiting discovery on the CEPA claims to events that occurred post-February 7, 2005.
We now turn to plaintiff's arguments challenging the grant of summary judgment dismissing his CEPA claims. Plaintiff argues that the trial court "ignored recent case law and defined the retaliatory action in a narrow self[-]serving way." Plaintiff contends that he presented sufficient evidence of adverse employment action from which a jury could conclude all of the asserted incidents combined to form a pattern of retaliatory conduct prohibited by CEPA. Plaintiff also asserts that the trial court erred in concluding that he had failed to establish a nexus between the retaliatory action and his whistle-blowing activity. In support of this last assertion, plaintiff argues that the filing of his CEPA complaint directly resulted in the retaliatory actions, "the most serious of which was the lodging of the disciplinary action against him." We disagree.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Property Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
"CEPA is 'remedial legislation, designed to expand employee protection . . . .'" Notte v. Merchs. Mut. Ins. Co., 386 N.J. Super. 623, 627 (App. Div. 2006) (quoting Crusco v. Oakland Care Ctr., Inc., 305 N.J. Super. 605, 610 (App. Div. 1997)). N.J.S.A. 34:19-3 provides, in pertinent part, An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . .
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a
rule or regulation promulgated pursuant to law . . . ;
(2) is fraudulent or criminal . . . or
(3) is incompatible with a clear
mandate of public policy concerning the public health, safety or welfare or protection of the environment.
A CEPA retaliatory action is defined 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." Maimone v. City of Atl. City, 188 N.J. 221, 235 (2006) (quoting N.J.S.A. 34:19-2(e) (emphasis removed)). An adverse employment action is not limited to a demotion, suspension, or discharge and need not result in a loss of pay. Id. at 236. "[M]any separate but relatively minor instances of behavior directed against an employee . . . may . . . combine to make up a pattern of retaliatory conduct." Greene v. Jersey City Bd. of Ed., 177 N.J. 434, 448 (2003).
To establish a prima facie case of a CEPA retaliatory action by an employer, an employee must demonstrate: 1) the employee reasonably believed that the employer's conduct violated either a law or a rule or regulation promulgated pursuant to law; 2) the employee performed whistle-blowing activity described in CEPA; 3) the employer took adverse employment action against the employee; and 4) a causal connection exists between whistle-blowing activity and the adverse employment action. Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999). The causal connection required under prong four of the prima facie CEPA standard "can be satisfied by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action." Maimone, supra, 188 N.J. at 237 (citation omitted).
Additionally, because CEPA is an anti-discrimination statute, "the same analytical framework [of an LAD retaliatory claim] applies to a CEPA claim." Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166 (App. Div. 2005). Accordingly, if plaintiff establishes a prima facie CEPA claim, the burden of persuasion shifts to the defendant-employer "to rebut the presumption of [retaliation] by articulating some legitimate non[-]discriminatory reason for the adverse employment action." Kolb, supra, 320 N.J. Super. at 478. "Upon such a showing by the employer, plaintiff has the ultimate burden of proving that the employer's proffered reasons were a pretext for the [retaliatory] action taken by the employer." Ibid.
The court granted summary judgment dismissing the CEPA claim, determining plaintiff failed to prove a prima facie case under the applicable four-prong standard. The court found "a genuine issue of material fact with regard to the first prong," and that "for the purposes of the motion for summary judgment" plaintiff had satisfied the second and fourth prongs of the standard, but not the third prong.
With regard to the third CEPA prong, the court determined that the actions defendants took with regard to [plaintiff's] dissemination of confidential documents in violations of the agency's rules and regulations were neither frivolous nor baseless. Although the court determined that the NJSP had transferred plaintiff from OPS to MSB, the court concluded that it was undisputed plaintiff had "not experience[d] any significant decrease in salary, fringe benefits, [commuting time], hours of work or any alteration of the terms and conditions of his employment." We concur.
Plaintiff did not suffer a retaliatory action through his reassignment to MSB, receipt of an inferior vehicle or disciplinary charges. Once transferred or detached to the MSB, plaintiff maintained his same rank, salary and benefits and was granted voluntary overtime. His commute to MSB took approximately the same amount of time as that to OPS. Plaintiff argues that he was provided the "worst" car in OPS and that his designation as "detached" rather than "transferred" to MSB curtailed his promotional opportunities, although this was a lateral reassignment, not a demotion. We determine that these changes in circumstances, even in the aggregate, do not constitute a sufficient negative change in the terms and conditions of employment to qualify as a retaliatory action.
Plaintiff also contends that he suffered an adverse employment action because he has not been promoted or transferred to a more favorable assignment since January 2005. The parties dispute whether plaintiff was required to apply for promotions given his rank, plaintiff contending that members of the State Police do not apply for promotions, but rather are automatically considered for promotions based on their ranking, and that designating him as "detached" to the MSB, rather than "transferred" eliminated him from consideration for promotions. Defendants maintain plaintiff was required to formally apply for promotions, and he has not done so. No documentary evidence has been provided by either party regarding the Standard Operating Procedure (SOP) for promotions in this circumstance. However, this deficiency is not determinative.
Taking the facts in the light most favorable to plaintiff and assuming plaintiff's reassignment to MSB and designation as "detached" prevented him from promotional consideration, a fact that may form the basis of an adverse employment action, Hargrave v. County of Atlantic, 262 F. Supp. 2d 393, 427 (D.N.J. 2003) (an adverse employment action includes depriving an employee of future employment opportunities), his claim was properly dismissed because defendants proffered a legitimate reason for this reassignment.
Plaintiff cites the internal investigation, disciplinary charges against him and his subsequent detachment to the MSB as evidence of retaliatory action. Not so. The charges against plaintiff were substantiated by the OAL and this court. The charges provided a valid basis for plaintiff's detachment or transfer to the MSB. The trial court properly identified that these disciplinary charges formed the legitimate non-discriminatory reason for plaintiff's transfer; thus warranting summary judgment even if a prima facie CEPA claim had been established.
This court has already considered the validity of the disciplinary charges against plaintiff and upheld them. Div. of State Police v. Flaherty, No. A-0257-07 (App. Div. Dec. 22, 2008). Therefore, plaintiff cannot collectively dispute their legitimacy in the context of his CEPA claim.