On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-582-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
Plaintiffs Paul DeHope, Joseph Soulias, and Oswald Morales appeal the dismissal on summary judgment of their claims asserted under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.*fn1 All are State Troopers who alleged they experienced retaliation after they filed numerous complaints while assigned to the Organized Crime Unit. Plaintiffs named as defendants the New Jersey Division of State Police (NJSP), Carson Dunbar (Superintendent of NJSP from November 1999 to January 2002), Carl Leisinger, Howard Butt, Vincent Modarelli, William Newsome, Edgar Hess, Kenneth Hess, Frederick Madden, Robert Dunlop, William Meddis, Kim Husband, Barry Bowers, Robert Kilmurray, Louis Toranto, Donald Izzi, Michael Fortino, John Gore, Debra Stone, Anthony Cowell, and Gail Mazuco. In a second amended complaint, plaintiffs added Joseph Santiago, the Superintendent of NJSP from March to October 2002, as a defendant. Plaintiffs asserted seventeen causes of action; however, this appeal is confined solely to counts one and thirteen of the second amended complaint asserting CEPA causes of action. We affirm the order dismissing the CEPA claims filed by plaintiffs DeHope and Soulias, but reverse the order dismissing the CEPA claims asserted by plaintiff Morales.
The NJSP is divided into a number of different sections, including the criminal investigation section. The criminal investigation section is subdivided into bureaus, including narcotics, organized crime, applicant applications and compliance, criminal investigations, special services, and cyber crime and child protection. Positions in the criminal investigation section are specialized and highly competitive.
In the late 1990s and in 2000, all plaintiffs were detectives in the organized crime bureau, north zone of the criminal investigation section, located in West Paterson.
Thomas Primo and Dennis Vecharelli had supervisory responsibilities.
The focuses of this litigation are plaintiffs' experiences in the organized crime bureau, their complaints in the late 1990s through 2000, and the alleged retaliation they experienced after making those complaints. Nevertheless, plaintiffs included a variety of complaints regarding their experiences in the NJSP, dating back to their dates of hire in the 1980s. Claims arising in the 1980s are time-barred; nevertheless, a discussion of these earlier experiences is necessary to understand the CEPA claims at issue on appeal, and also to understand why some of the defendants were named in this litigation. Therefore, we summarize the work histories of the three plaintiffs involved in this appeal, up to the point where they were assigned to the organized crime bureau. Thereafter, we address their complaints about the organized crime bureau and their allegations of retaliation.
A. DeHope's Work History with the NJSP up to Organized Crime Bureau Assignment
DeHope began employment with the NJSP in 1982. His first assignment was as a road trooper in northern New Jersey. He claims he was trained in racial profiling.
In 1987, he transferred to the narcotics bureau to work as a dog handler in the K-9 unit. There, he was promoted to detective. As a dog handler, DeHope worked mostly with road troopers. He contends that on multiple occasions in the late 1980s defendant John Gore instructed him to create a "programmed alert," meaning to plant drugs, drug residue, or currency at a site in order to force a reaction from his dog and generate probable cause for a search warrant. On one occasion a member of the narcotics unit also asked DeHope to falsely signal that his dog had alerted him to the presence of drugs, but DeHope refused to do so.
In 1988, 1990, and the early 1990s, DeHope complained to Gore and Gore's superior about profiling. They did nothing.
In 1993, DeHope was involved in a stop while on a patrol where a large amount of narcotics were found. DeHope interviewed one suspect, who accused a trooper of being involved in narcotics activity. Defendant Howard Butt stated he would follow up on the accusation, and DeHope memorialized the suspect's statement in his report. However, weeks later, DeHope was told by Gore that he was being investigated regarding the incident. Almost immediately after that incident, K-9 troopers were ordered not to file reports.
In mid-1993, Gore gave DeHope a negative review, allegedly at the direction of Gore's superiors. Then, in October 1993, an internal investigation was opened on DeHope regarding his loss of an NJSP identification card. NJSP assigned Gore as the investigator. DeHope was disciplined for that offense.
In 1994, DeHope attempted to file an Equal Employment Opportunity (EEO) complaint about Gore's requests for programmed alerts, and he claimed the existence of a hostile work environment. When DeHope was informed he could not file a discrimination claim because he was not a member of a protected class, he stated he wanted to initiate an internal investigation regarding Gore. However, DeHope was informed that the matter would be handled within his unit, and he was removed from his normal station for a few weeks. Also in 1994, Gore attempted, unsuccessfully, to retire DeHope's dog. DeHope believed this effort was an indirect attempt to get rid of him.
In 1996, DeHope believed NJSP unnecessarily retired his dog, and DeHope was involuntarily transferred from the K-9 unit to the organized crime bureau in West Paterson. At the time, he held the rank of detective one. DeHope admitted he could have continued in the K-9 unit with another dog. However, for personal reasons he felt that was impossible.
DeHope claimed that the transfer constituted retaliation for earlier complaints about racial profiling. At the time of DeHope's transfer, defendant Robert Dunlop was a major in charge of the investigations section. DeHope met with Dunlop twice, explained that there was no justification for retiring his dog, and claimed that he was being transferred because of his complaints about racial profiling, among other things. DeHope held Dunlop responsible for the transfer a few weeks after the second meeting.
DeHope also held defendant Vincent Modarelli responsible for "a lot of things that happened to [him]" in the K-9 unit because Modarelli was one of DeHope's supervisors. He alleged that Modarelli once told Gore that DeHope had "dug [himself] a hole that [he] can never get out of."
B. Soulias's Work History with the NJSP up to Organized
Soulias became a trooper in 1986. In 1993, he was promoted to the rank of trooper one, and in 1998, he was promoted to the title of detective one.
Soulias is Caucasian, married to a Chinese woman. He alleged that from the beginning of his employment he witnessed racial slurs and discriminatory practices. In the early part of his career as a road trooper, he also witnessed racial profiling in vehicle stops. Soulias did not engage in profiling, and he was told that his failure to be aggressive in arresting people would hurt his career.
He made his first EEO-type complaint in 1993. Specifically, he asked his supervisor, Ken Duhanish, to stop referring to Asians as "gooks," telling Duhanish that his wife was Chinese. Duhanish refused and told Soulias not to take it personally.
In 1995, Soulias and others from his station spoke to a captain from the EEO office about racial slurs and threats of violence uttered by Joe Budzinski, the station commander. They also allege Budzinski created a hostile work environment. They were told not to file a formal complaint. Instead, Budzinski was transferred and allowed to retire with a full pension and without any discipline.
In 1996, Soulias and other troopers met with people from EEO regarding Captain Sal Maggio's use of racial slurs and his threats to transfer Soulias as punishment for his earlier complaint against Budzinski. A few months later, Soulias received a letter stating that there would be no investigation of his complaints.
In 1997, Soulias applied to work with defendant Howard Butt in the organized crime unit. He learned that Maggio had been Butt's coach and mentor when he started with the NJSP. Soulias assumed that Maggio's relationship with Butt was the reason he did not receive the job.
Also in 1997, Soulias complained to his squad supervisor, Lee Hendrickson, about his use of racial epithets. When Hendrickson ignored his complaints, Soulias complained to Maggio, his captain, who responded Soulias would be court martialed if he did not follow orders from Hendrickson. Soulias was promoted at about the time to detective one and commenced work in the organized crime unit.
C. Morales's Work History with the NJSP up to Organized
Morales commenced employment with the NJSP in 1983. His first assignment was as a road trooper in northern New Jersey. He was transferred to the organized crime unit in 1988.
Morales claimed he suffered from racial discrimination throughout his career and refused to engage in racial profiling. He suffered from racial comments, did not have the opportunity to go to classes to advance his career, and received lesser assignments and equipment than other troopers. He attributed the loss of opportunities to his lack of connections and because he did "not play  the game" and was not part of a "clique."
II. Plaintiffs' Complaints in 1999 and 2000
Working in the organized crime unit, DeHope, Soulias and Morales were dissatisfied with some of their supervisors in the West Paterson office, as well as members of the NJSP statewide command structure. The complaints focused on in ascending hierarchical order: Michael Fortino (detective sergeant and a supervisor in the organized crime unit); Louis Toranto (detective sergeant and a supervisor in the organized crime unit); Kim Husband (detective sergeant and assistant unit leader of the organized crime unit); William Newsome (detective sergeant first class, subsequently lieutenant, and unit supervisor of the organized crime unit); Kenneth Hess (assistant bureau chief); Edgar Hess (bureau chief); and Frederick Madden (acting section supervisor, investigations section).
Plaintiffs claim they made a variety of internal complaints about their managers in the organized crime unit. For example, in May 1999, DeHope complained that Newsome instructed DeHope's immediate supervisor, Primo, to perform his evaluation even though Primo had been detached from the unit. Primo gave DeHope a good evaluation. However, Newsome, who should have performed the evaluation, altered it downward. DeHope first complained to Newsome and filed a union grievance. He then met with Edgar Hess. Ultimately, there was a hearing with Madden.
In 1999 and 2000, DeHope also complained to Madden about people ranked below him being promoted before him, in particular Bill Turner, a captain's son. Shortly thereafter, he was promoted to sergeant.*fn2
In 1999/2000, Morales also complained about the working conditions and managerial practices at West Paterson. He allegedly spoke with Husband, Edgar Hess, Madden, and Kenneth Hess, and explained problems he had with Fortino, Toranto, and Newsome, "the whole gamut." Morales and the other plaintiffs, including Soulias, attempted to speak to then-Superintendent Carson Dunbar about the problems in West Paterson. However, Dunbar would not meet with them and the problems continued.
Morales claimed that Newsome once ordered surveillance on him to verify his illness while using sick time. He also claimed Newsome and Butt retaliated against him by taking away vacation time, and by giving him a poor evaluation.
As to Toranto, Morales claimed Toranto did not treat him like a senior detective should be treated in terms of assignments and how he spoke to him. He attributed Toranto's treatment of him as retaliation for a complaint he once made about Toranto disobeying an order from a deputy attorney general with respect to a search warrant.
Morales claimed Fortino over-supervised him at Newsome's direction, and also made racial slurs and jokes. Morales alleged Kenneth Hess and Husband reduced his promotional ranking.
Piniero testified to additional complaints made to management. He stated that plaintiffs complained about Newsome not reporting to the West Paterson office and working out of the Howell office. This forced his subordinates to take on greater managerial roles without receiving credit for their work in terms of promotional opportunities, and in some instances his absence resulted in negligent supervision. Piniero further stated they complained about Fortino's poor managerial skills, including his inability to deal with personal crises involving his pet cats, which compromised investigations and officers' safety. Soulias corroborated these incidents involving Fortino at his deposition.
DeHope testified in his deposition that Kenneth Hess responded to plaintiffs' complaints by traveling to West Paterson to address the problems with Fortino. Hess removed Fortino from the West Paterson office and placed him in an administrative position.
In 1998, Soulias was working as a detective in the organized crime unit. That year, Fortino, as Soulias's supervisor, insinuated Soulias's wife was one of the prostitutes he frequented and suggested he may have contracted gonorrhea from her while he was a marine stationed in the Philippines. Soulias said nothing immediately, as he was new to the unit; however, he filed an EEO complaint about the incident approximately one year later. Piniero recalled speaking to an EEO investigator about the incident, and that Fortino was disciplined for his misconduct.
In 1999, Fortino had been transferred from the unit and replaced by defendant Toranto. That year, Soulias, Toranto, and others from the organized crime bureau went for lunch at a Chinese restaurant and Toranto made a derogatory comment, suggesting their waitress was Soulias's wife. Soulias did not file an EEO complaint about this incident until 2000, when he, Piniero and DeHope filed a joint complaint. Soulias waited to file a complaint because Toranto's father was a lieutenant colonel in the NJSP, and he perceived Toranto as "the chosen one," who had been "on the fast track his whole career."
On January 25, 2000, Piniero, DeHope, and Soulias met with Marshall Brown, an investigator from the NJSP's EEO/Affirmative Action unit. The three alleged a hostile work environment existed in the West Paterson office based on management's abuse of power, violation of standard operating procedures, and favoritism and nepotism in assignments, rankings, promotions, and overtime. In particular, Soulias complained of the following actions: Fortino's falsification of documents with respect to an incident with the Irvington police; Newsome's falsification of documents relating to an incident in Paramus when members of the Division of Criminal Justice assaulted suspects; Newsome's concealment that two troopers misused government property by receiving complimentary airline tickets in their own names that should have been remitted to the NJSP; and Toranto's disregard of a deputy attorney general's addendum to a search warrant request.
Piniero recalled complaining about many things, including but not limited to Newsome's failure to report to West Paterson, and Fortino's preoccupation with his personal crises in the workplace.
Brown responded that while these allegations were "important," they did not appear to violate the NJSP's policies against discrimination and harassment. He therefore recommended that plaintiffs pursue their complaints with internal affairs or the Attorney General's office. Thereafter, on February 8, 2000, Morales filed an EEO complaint with the NJSP against Newsome, Toranto, and Fortino, alleging disparate treatment based on race, repeating some of the allegations previously discussed (e.g., loss of vacation time, assignment of lesser vehicles, over-supervision, less substantial assignments, surveillance during sick leave, poor performance appraisal, speaking to him in demeaning manner).
C. February 18, 2000 Complaint to Attorney General's Office and Outcome of the Investigation
On February 18, 2000, plaintiffs brought their complaints to the Attorney General's office, meeting with defendants Deputy Attorneys General Debra Stone, Gail Mazuco, and Anthony Cowell. The day before the meeting, Toranto yelled at Morales for taking time to attend the meeting. Also, Kenneth Hess called Stone, "distressed" that plaintiffs were meeting with her. During the meeting, Edgar Hess called Stone to advise her that some of the plaintiffs were absent without leave from their posts. He further stated that there were mechanisms for dealing with grievances within the NJSP, and it was a discipline problem if troopers "could just wander off post without any consequences." Stone responded to both Kenneth Hess and Edgar Hess that the troopers were permitted to meet with the Attorney General's office and could not be punished for it.
At the meeting, plaintiffs complained about many things, including their dissatisfaction with the way their units were run. Some alleged criminal conduct. Some complained of nepotism and cronyism in the promotional process and assignments. According to DeHope, plaintiffs complained about "pretty much, everything" involved in this litigation.
Plaintiffs also expressed concern about retaliation for making their complaints. According to Soulias, the Deputy Attorneys General assured them they would be protected from retaliation. In fact, during the meeting Stone directed Cowell to phone Dunbar, the Superintendent at the time. Stone told plaintiffs to report any retaliation. She never received any such complaints.
After the meeting, the internal affairs/management issues were sent to NJSP legal affairs, and the criminal issues were sent to attorney Tommy Goan to investigate. Speaking with Goan later, Stone was told that the criminal allegations were not as they were portrayed at the meeting. He considered the allegations as internal affairs matters, and the allegations were returned to NJSP to address.
The record also contains NJSP internal affairs complaint forms relating to plaintiffs' complaints dated September 2000, with Piniero, Primo, Vecharelli, DeHope, Soulias and Morales listed as the complainants, and the respondents identified as Madden, Edgar Hess, Kenneth Hess, Newsome, Toranto and Husband.
Although internal affairs investigated the complaints, Morales claimed ignorance of any internal investigation. Soulias, however, recalled meeting with internal affairs, as did Piniero. A final report was not issued until August 15, 2002.
As a result of the report, Newsome was charged with: causing material alteration of official reports to conceal a January 22, 1999 physical altercation between an NJSP detective and members of the Irvington police, to conceal a December 18, 1998 assault committed by Division of Criminal Justice personnel upon an arrested person, and to cover up his subordinates' misuse, or attempted misuse, of government property/travel expenses for personal gain. He was also charged with culpable inefficiency in the performance of his duties as supervisor by reporting to Howell station, which was closer to his home, rather than West Paterson; culpable inefficiency and conduct unbecoming (causing the appearance of impropriety) by selecting Fortino to be the north zone supervisor, knowing that ...