On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6664-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010
Before Judges Rodriguez and Grall.
New Jersey State Police Trooper Michael R. Buccilli appeals from the March 19, 2009, order of the Law Division dismissing his Conscientious Employee Protection Act (CEPA)*fn1 retaliation claim, and granting summary judgment to defendants State Of New Jersey, David Jillson, Francis Donlan, Brian Reilly, George Malast, Donald Izzi, Michael Lurakis, and Joseph R. Fuentes (collectively "State defendants"). We affirm.
These are the facts, viewed in the light most favorable to Buccilli. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-2(c). On April 19, 2005, Buccilli reported to the shooting range wearing a Class B uniform with a yellow service bar sewn upon the sleeve. These bars are informally referred to in the State Police community as "snot bars." A fellow trooper informed him that service bars are not allowed on Class B uniforms. Another trooper called the Bass River Squad and told them that Buccilli showed up to shoot "out of uniform." Buccilli immediately removed the yellow bar from the uniform and continued his shooting practice. Several instructors made "jovial comments" about the incident throughout the remainder of the shoot. Buccilli "believe[d] they were joking and were not trying to intentionally upset [him.]"
When Buccilli reported to work three days later, he logged onto the Computer Aided Dispatch (CAD) system and noticed an entry that "said something to the effect of Trooper Buccilli . . . had snot bars sewn onto his civilian clothes." He also found several yellow sticky notes taped all around his mailbox and locker. Buccilli considered this to be a joke relating to the service stripe incident. Inside the locker, however, Buccilli found that someone had painted a yellow stripe onto the left sleeve of his uniform.
Buccilli reported the incident to his immediate supervisor, but asked the supervisor not to tell anyone else because he was afraid of being "harassed, ostracized, [or] blackballed" for being a "rat." Nevertheless, the supervisor reported the incident to Staff Sergeant Randik. On April 23, 2005, Buccilli told Randik that he did not wish to formally report the incident because he "did not want to be ostracized and labeled as a troublemaker at the station." Subsequently, Lieutenant David Jillson spoke to Buccilli about the "rumor" he heard about the uniform incident. Buccilli "declined to advise [him] of any problems."
The next day, Randik told Buccilli he would be given two days to work on his overdue work reports. For the next three weeks, Buccilli worked on the reports but was often out sick.
One day while Buccilli was working on his reports, he heard SFC Francis Donlan comment to Jillson that "negative performance notices should be issued to personnel who had outstanding reports." Buccilli thought the comment was directed at him. He explained to Donlan that his reports were late because he had a medical condition that kept him out of work and he had an excessive volume of reports to write that month. Donlan responded that this was "no excuse" and threatened to put a negative review in his file. The reports were eventually completed. Buccilli received no discipline for their lateness.
In April 2005, Buccilli attended a squad meeting. Randik noted that several troopers were delinquent in their log book entries and ordered the squad to update the log book immediately. Buccilli was one of these troopers. His last entry was dated March 21, 2005, more than five weeks earlier.
From April 29, 2005, until May 18, 2005, Buccilli was not at work because he either had scheduled time off, or was ill.
He did come in on two days when he worked to complete the overdue reports. Upon his return on May 18, 2005, he found a negative progress note in his mailbox stating that "Buccilli is counseled for failure to maintain/update vehicle impound entry." Eight other troopers also received a negative progress note for the same reason. After receiving the progress note, Buccilli went to Jillson to grieve the progress note.
He told Jillson about the April 22 locker/uniform incident, which he had discussed with Randik. Jillson acceded to Buccilli's request not to initiate an investigation. However, about an hour later, Jillson informed Buccilli ...