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Arthur Margeotes v. Office of the Passaic County Prosecutor and James Avigliano

August 8, 2012

ARTHUR MARGEOTES, PLAINTIFF-APPELLANT,
v.
OFFICE OF THE PASSAIC COUNTY PROSECUTOR AND JAMES AVIGLIANO, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS PROSECUTOR OF PASSAIC COUNTY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10040-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 10, 2012

Before Judges Payne and Hayden.

Plaintiff, Arthur Margeotes, appeals from the August 6, 2010 Law Division order denying his motion for a new trial or a judgment not withstanding the verdict (JNOV) after a jury returned a no cause verdict in his wrongful termination suit against defendants the Passaic County Prosecutor's Office (Prosecutor's Office) and James Avigliano, a former Passaic County Prosecutor. Because we are satisfied that no miscarriage of justice occurred, we affirm.

We glean the following facts from the sparse record before us.*fn1 Plaintiff worked as an Assistant Prosecutor in the Prosecutor's Office from 1989 through 2002. Prosecutor Ronald Fava, who headed the Prosecutor's Office during much of plaintiff's employment, promoted plaintiff to the position of Chief Assistant Prosecutor sometime in the early 1990s. In this position, plaintiff led the Government Corruption/White Collar Crime Unit, and later, beginning in 1999, the Insurance Fraud Unit/Auto Theft Task Force. Plaintiff alleges that in the early to mid-90s, he objected to and refused to participate in several illegal activities or to countenance corruption in the Prosecutor's Office. After Fava failed to stop the complained about activities, plaintiff also notified the New Jersey Attorney General's Office and the United States Attorney's Office about his concerns. In addition, he surreptitiously recorded his co-workers and other attorneys without permission and turned some of the tapes over to a federal agent.

In February 2001, Fava resigned from his position as head of the Prosecutor's Office and was replaced temporarily by an acting Prosecutor. In September 2002, Avigliano was appointed the Passaic County Prosecutor. The day after taking office, the new prosecutor stated he would not re-appointed plaintiff and he was terminated from his position.

Plaintiff contended that his termination resulted from his reporting and refusing to participate in the illegal activities and corruption in the Prosecutor's Office. On June 26, 2003, plaintiff brought a civil action in the Superior Court against the State of New Jersey, the Passaic County Board of Chosen Freeholders, and several others, including James Avigliano and Ronald Fava, in their official and individual capacities, alleging violations of various state and federal laws. The case was removed to the United States District Court in the District of New Jersey on July 24, 2003. In 2004, after the District Court judge granted summary judgment and dismissed nearly all claims, the parties consented to remand the case to state court.

In 2008, plaintiff amended the complaint, dismissing several parties and leaving only claims under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and New Jersey Constitution, against defendants Avigliano and the Prosecutor's Office. On May 18, 2010, Judge Langan granted defendants partial summary judgment, dismissing plaintiff's state constitution claim and leaving the CEPA claim as the sole remaining count.

From June 1 to June 24, 2010, the trial took place before a jury with Judge Estela De La Cruz presiding. Prior to deliberating, the jurors received a jury verdict sheet instructing them to answer up to four questions. Specifically, they were asked to determine if plaintiff "has proven by a preponderance of the credible evidence" that 1) "he objected to or refused to participate in an activity or practice that he reasonably believed violated a law, rule or regulation promulgated pursuant to law;" 2) he was "subject to an adverse employment action after he objected to, or refused to participate in such an activity or practice;" 3) there "is a causal connection between his objection or refusal and the adverse employment action;" and 4) "the adverse action taken against him was retaliatory."

After each of the first three questions, the verdict sheet instructed the jurors, if they answered the question "yes," to proceed to the next question. However, if they answered "no," they were to cease deliberations and return the verdict to the judge. The parties were offered an opportunity to object to the jury charges or the jury verdict sheet. While there was some discussion about a portion of the charge not relevant to this appeal, in the end, both parties accepted the jury charge and verdict sheet.

On June 24, 2010, the jury returned a verdict in defendants' favor. The jury found unanimously that plaintiff had proven the first question, that he had engaged in protected activity. However, the jury found by a vote of seven to one that he had not proven the second question - that he suffered an adverse employment action after engaging in the activity.

Plaintiff subsequently moved for a new trial or JNOV, arguing that the jury's finding regarding question two on the jury sheet was inconsistent with the evidence presented at trial. Specifically, plaintiff argued that no reasonable jury could have found he did not suffer an adverse employment action after he engaged in activity protected by CEPA because his 2002 termination was an adverse action occurring subsequent to those activities.

Defendants countered that the jury verdict was proper for several reasons. First, plaintiff failed to timely object to the jury charge and verdict sheet prior to jury deliberations; second, the jury charge as a whole adequately conveyed the law; third, ample evidence was presented at trial demonstrating plaintiff did not suffer an adverse employment action after objecting to or refusing to participate in ...


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