On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3552-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued March 14, 2012
Before Judges Messano, Kennedy and Guadagno.
Plaintiff George Ayad appeals from the Law Division's order granting summary judgment to defendant, City of Jersey City (the City), dismissing plaintiff's amended complaint alleging violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (CEPA). We have considered the arguments raised in light of the motion record and applicable legal standards. We affirm.
The motion record revealed that, beginning in 1996, plaintiff worked for the Division of Commerce (the Division), part of the City's Department of Housing, Economic Development, and Commerce (HEDC), first as a fiscal analyst and later as an administrative analyst. The Division was responsible for enforcing ordinances regarding City-issued licenses, including the licensing and inspection of taxicabs.
The title "administrative analyst" was held by many employees in various departments of the City, and the specific duties of each administrative analyst differed both from each other and from the official job description issued by the State Department of Personnel (DOP). Plaintiff processed complaints against licensees received from constituents, performed field inspections and investigations, initiated appropriate enforcement actions, prepared reports, made bank deposits for the Division and directed the Division's bi-annual taxicab inspections. Plaintiff carried a "badge" that identified him and aided his enforcement duties.
At some point, plaintiff complained to Len Greiner, the Division's director, that the City's ordinances regulating the age of taxicabs were being violated. Greiner was replaced by Maynard Woodson, the Division's assistant director and who, in the past, had reported to plaintiff. Plaintiff testified at his deposition that his relationship with Woodson was "volatile."
Plaintiff reiterated his complaints about ordinance violations to Woodson. In October 2004, plaintiff requested and was granted a leave of absence because of "frustrations at work that [he] couldn't deal with . . . ." Plaintiff returned to work briefly in February 2005 for approximately two weeks and again left, disputing the need to submit medical clearance letters to the City's personnel department.
On July 6, 2005, plaintiff filed a complaint alleging that the City had retaliated against him in violation of CEPA. The case proceeded to trial, and, in January 2007, a jury awarded plaintiff $40,000 in economic damages and $40,000 in pain and suffering. The judge entered an order of judgment on March 19, 2007 that also awarded plaintiff counsel fees of $68,595.74 and costs of $7,262.77.
When plaintiff returned to work at the Division on April 2, 2007, a former license inspector, Paul Barna, was the new director, and Woodson was the acting assistant director. Barna also previously had reported to plaintiff, but plaintiff's relationship with him was "fine." Barna told plaintiff that his duties had changed, and he "was no longer allowed to issue summonses, conduct any investigations, and [he] was not allowed to perform any field work." Plaintiff acknowledged that Barna wanted him to create an operations manual for the Division. Plaintiff testified that he did not believe Barna was retaliating against him but simply following orders from the director of HEDC. Plaintiff no longer was issued a badge.
Barna told plaintiff it was necessary for him "to perform more administrative tasks." Barna also issued a memorandum to all staff advising that "excluding ABC and Weights & Measures," "all complaints . . . [would] be handled by [plaintiff]." In June, Barna issued another memorandum advising staff that "after completion of the investigation" of "all complaints," the inspectors were required to "file the completed report with [plaintiff]."
Plaintiff acknowledged there were "[o]ne or two" more inspectors in the Division when he returned than when he left in 2005. He testified, however, that, upon his return, he was "just basically [doing] clerical" work and not performing "in the capacity of [a] manager."
Plaintiff thought he would be assigned an office as in 2005, but Barna told him none was available and assigned plaintiff a cubicle near the door. Plaintiff overheard one of his co-workers, Pat Montone, say "why would he return back to work." Plaintiff also testified that while working at his desk, Woodson would "whisper things in [his] ear," such as, "you didn't win anything in court, we still get to do whatever we want."
Plaintiff acknowledged that upon his return to work, he began looking through the Division's files because he believed certain documents produced during the prior litigation were fraudulent. When a local newspaper reporter called, plaintiff indicated that files were missing from the Division. An article containing plaintiff's claim appeared in the Jersey Journal the next day.
In May 2007, plaintiff filed complaints with the City's Equal Employment Opportunity/Affirmative Action Officer. One dealt with Montone's behavior. The EEO Officer advised that the subject of plaintiff's complaints was not her responsibility. Plaintiff lodged a second complaint regarding the lack of security at his office. The EEO/AA officer never responded. Plaintiff also complained to the Occupational Safety and Health Administration (OSHA) about the lack of security. OSHA sent an inspector and advised the complaint was not within OSHA's jurisdiction. Plaintiff testified that his co-workers derided him over his security concerns.
Also in May, plaintiff sent a letter to the City's Corporation Counsel.
Please note that on May 22 & 23 2007 [sic] The [sic] Division of Commerce conducted it's [sic] bi-annual taxi inspections at Public Works. For the last 10 years I've always been responsible and charge in of [sic] these taxi inspections. Now I'm barred from even participating in them because of the ongoing retaliation for previously reporting improprieties at the taxi inspections and in my office. Without proper monitoring and supervision the taxi inspection could become a breeding ground for corruption, one inspector was arrested because of the his [sic] activities at the taxi inspections. A police investigation at the taxi inspection in pervious [sic] years reported "Ayad and Barna are the only two inspectors failing cabs" and for doing my job properly and with integrity, I am punished, discredited and excluded from engaging in operations & enforcement of my office.
I've been denied a shield, a summons book, and conducting field investigations upon my return to work and now I am not allowed to be involved in the taxi inspections, all these duties are part of my job. I am a sworn officer of the court and yet the City has prevented me from preforming [sic] my duties with no explanation or reason except for the fact that I report violations and criminal activities occurring in my office which is [sic] cause of this retaliation. I will not be subjected to this type harassment [sic] and discrimination again.
A complaint will be filed in New Jersey State Superior Court.
Despite reference to "violations and criminal activities," when deposed, plaintiff could not identify any rule, regulation or statute that had been violated. Barna and Woodson did not receive copies of the letter.
In 2005, the City had hired Jack Coyne as an administrative analyst assigned to the Division. When plaintiff returned to work in 2007, Coyne was doing the inspections and field work plaintiff previously had done. Additionally, the City paid Coyne approximately $12,000 more per year. Plaintiff testified that this was in retaliation for his CEPA complaint and successful trial. On May 31, plaintiff's attorney wrote to the Corporation Counsel's Office complaining that in addition to keeping him from performing his former job duties, the City was retaliating against plaintiff "for winning his jury trial" and "a look at [plaintiff]'s salary . . . [would] also demonstrate that the harassment of [plaintiff] continue[d]."
In April 2007, the City announced a promotional examination for the position of "Assistant Director of Licenses." Plaintiff thought he was eligible for the position and applied to sit for the promotional exam. On June 13, DOP informed plaintiff that he was not eligible to sit for the exam because the "announced title does not represent a promotion."
Plaintiff believed that "the [C]ity and the [S]tate . . . worked in conjunction to come up with that decision to not allow [him] to take the test." On June 13, he wrote the City's Director of Personnel requesting a list of all personnel assigned to the Division, including "their official title and . . . status." The City ...