On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-552-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
Defendants appeal from a judgment entered in plaintiff's favor following a jury trial for a total award of $815,324.67.
Of that amount, $419,000 represents the jury's award for compensatory damages under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, $126,548 its award for punitive damages, and the balance includes counsel fees, prejudgment interest and a sum to cover the negative tax consequences plaintiff would experience in light of the lump sum award. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Plaintiff is a sergeant on the police force of the Fair Lawn Police Department. Defendant Erik Rose is the Chief of the department. Plaintiff joined the department in 1988 and in 1998 was promoted to sergeant. In 2001 plaintiff was given supervisory responsibility for the Detective Bureau, a position that had previously been held by a lieutenant. In April 2001, plaintiff took and passed the examination for promotion to the rank of lieutenant. He initially was ranked third on the list of candidates eligible for promotion but later dropped to fourth when another individual took and passed the exam. While that individual was promoted to lieutenant, plaintiff was not promoted during the life of the list, which expired on April 25, 2004. Plaintiff took the exam a second time and again ranked fourth. Two other candidates were promoted to lieutenant, moving plaintiff up to second place by the time the list expired on February 11, 2007, without plaintiff being promoted. Plaintiff did not take the exam a third time.
In October 2004, Chief Rose appointed Lieutenant Yirce as the detective lieutenant for the Detective Bureau, and plaintiff was assigned to train Yirce for the post. Plaintiff maintained that Yirce was unable to perform the duties satisfactorily, and eventually Yirce was assigned purely administrative duties, and plaintiff resumed handling the duties of the detective lieutenant.
In February and May 2006, plaintiff approached Chief Rose with respect to Yirce. Plaintiff testified that he told Rose that the assignment of Yirce to the Detective Bureau was not working out. He testified that he told Rose that either he should be promoted to lieutenant or another lieutenant should be assigned to the Bureau. According to plaintiff, Rose responded, "Things are working really smoothly right now with you doing the work, there's no reason for me to change [Yirce's] assignment. I'm going to leave it the way it is."
Plaintiff was not satisfied with this response, and in June 2006, he returned to Rose and told Rose that he was considering requesting a desk audit.*fn1 Plaintiff testified that Rose did not appear to have a particular reaction to this statement.
In July 2006, plaintiff submitted his request for a desk audit to the Department of Personnel. In his submission, plaintiff observed that he "ha[d] been given all of the tasks performed by Lieutenants assigned to the Detective Bureau in the past and was called upon to train a newly assigned Lieutenant in the same tasks, only to obtain those duties again when the newly assigned Lieutenant was given an administrative title less than three months later." He stated that as a remedy he sought promotion to the rank of Lieutenant.
In August 2006, Chief Rose, at the request of the Department of Personnel, sent in his response to plaintiff's submission. He noted that plaintiff had more administrative responsibilities than did patrol sergeants because he supervised a smaller number of officers. He also noted that, contrary to plaintiff's statement, plaintiff did not supervise any sergeants. To help him prepare this response, Chief Rose had requested further detailed information from Captain Serrao with respect to plaintiff's duties. Chief Rose attached to his response Captain Serrao's memo to him and noted that it endorsed plaintiff's request.
Approximately two months later, in October 2006, the Department of Personnel notified plaintiff and the municipality that it had decided that plaintiff's position was properly classified and if either disagreed with this conclusion, an appeal could be filed with the Division of Merit System Practices and Labor Relations. Plaintiff did file such an appeal, and a hearing was held on June 20, 2007. In September, the Commissioner of Personnel rejected plaintiff's appeal, concluding that his position was properly classified as that of a sergeant. Plaintiff did not seek any further appellate review.
Plaintiff contended that Chief Rose was angered by his request for a desk audit and retaliated against him for doing so. He identified four specific acts of retaliation: three investigations by Internal Affairs he characterized as "frivolous" although he admitted the conduct at issue and a transfer from the Detective Bureau back to the Patrol Division. Plaintiff alleged that this transfer, which did not involve any change to his rank of sergeant, did affect his compensation because he would not have as many opportunities for overtime work in the Patrol Division as he had in the Detective Bureau and because he would lose the $500 clothing allowance afforded to members of the Detective Bureau. Maimone v. City of Atlantic City, 188 N.J. 221, 236-37 (2007) (holding reduction of overtime opportunities, loss of clothing allowance and other benefits sufficient to constitute an adverse employment ...