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Russell J. Litchult, Jr v. Borough of Waldwick

September 5, 2012

RUSSELL J. LITCHULT, JR., PLAINTIFF-APPELLANT,
v.
BOROUGH OF WALDWICK, WALDWICK POLICE DEPARTMENT, CHIEF MARK MESSNER, GARY KRATZ, BOROUGH ADMINISTRATOR AND INDIVIDUALLY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2828-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 28, 2012

Before Judges Cuff, Lihotz and St. John.

Plaintiff Russell J. Litchult, Jr., a former sergeant employed by defendant Borough of Waldwick Police Department (the Department), appeals from the June 1, 2010 order of the Law Division, awarding summary judgment in favor of the Department, its Chief of Police Mark Messner, the Borough of Waldwick (the Borough), and the Borough Administrator, Gary Kratz, on claims raised in his complaint predominately alleging violations of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14. Plaintiff also appeals the October 15, 2010 order denying his motion for a new trial following the jury's no cause verdict. In light of the record and applicable law, and following our review of the arguments advanced on appeal, we affirm.

I.

The record on appeal reveals the following facts and procedural history relevant to plaintiff's complaint as well as the subsequent trial and post-trial motions and orders.

Plaintiff was a twenty-eight-year veteran with the Department until he retired on October 1, 2008. In 1990, he was assigned as the Department's K-9 officer, and remained in that position until 2008.

In February 2006, while Detective Sergeant Kevin Smith was transporting a detainee named Jorge Barahona to the Bergen County Jail, Barahona complained to Smith that, while he was handcuffed, plaintiff struck him. Smith subsequently filed an excessive force complaint with the Department against plaintiff. Immediately after the incident, plaintiff explained what had happened to both Police Chief Messner and Lieutenant Edward Weber, the Department's Internal Affairs Officer. The Department investigated the allegation, and although plaintiff later admitted in his deposition testimony that he hit Barahona, he maintained his use of force was justified.

Weber testified at his deposition that the investigation revealed the claim of excessive force was not sustained and the evidence was insufficient to support a finding of misconduct. However, as required by the Department in all incidents involving an officer's use of force, a report was filed with the Bergen County Prosecutor's Office. On March 3, 2006, Messner met with plaintiff and advised him of the outcome of the investigation.

Plaintiff believed the excessive use of force complaint and subsequent investigation were retaliatory because Smith brought Barahona's excessive force allegation to the Department's attention shortly after plaintiff complained to Messner that Smith's work performance was deficient.

During the meeting on March 3, plaintiff complained to Messner that in 2005, he witnessed Smith accessing Borough Administrator Kratz's computer without authorization. Plaintiff also complained to Messner that he believed Smith, while on official duty, provided services to the Borough pursuant to a separate contract as the Borough's computer network administrator.

Weber conducted a supervisory investigation of Smith's alleged unauthorized access of Kratz's computer files or emails. He determined that, as the Borough's network administrator, Smith was capable of accessing Kratz's emails, Smith had viewed one of Kratz's emails inadvertently. However, Weber also determined Smith had subsequently reopened and shown that email to another officer, which was an error in judgment requiring oral counseling.

Weber also investigated plaintiff's complaint regarding Smith acting as the Borough's network administrator while on official duty as a police officer. According to Smith, he never provided computer services for additional compensation while on duty, and Weber determined he had not acted inappropriately.

On April 18, 2006, plaintiff filed a Notice of Tort Claim against Smith and the Borough. The Notice made clear that the Borough was named as a defendant because it was Smith's employer, and that plaintiff's claim against Smith was based on Smith's alleged failure to properly investigate Barahona's allegation of plaintiff's excessive use of force prior to filing a complaint.

Plaintiff alleged that in March 2007, Messner questioned him about how he calculated his K-9 compensation time and requested a copy of his K-9 compensation agreement. According to plaintiff, Messner's questioning "was definitely a retaliatory and harassing move." However, Messner asserted that neither plaintiff nor the former Chief of Police ever informed him about any K-9 compensation agreement.

In June 2007, plaintiff issued a written reprimand to Officer Thomas Dowling for failing to properly respond to a domestic violence call. After the reprimand, Dowling complained to Messner that plaintiff had it "out" for him. As a result, Messner met with plaintiff, Weber, Dowling, and Sergeant Douglas Moore.

Even though plaintiff emailed Messner to inform him he had rescinded the reprimand based on a conversation with Dowling, and that he had no problem doing so, plaintiff alleged he was pressured by Messner to withdraw the reprimand. However, plaintiff admitted Messner never actually told him to withdraw Dowling's reprimand.

Plaintiff asserted that from June through November 2007, he and other officers lodged several complaints alleging that Sergeant Robert Woessner was performing personal real estate business while on duty. In November 2007, plaintiff provided various documents to Messner, which he contended established that Woessner had been printing real estate documents using the Department's printer. After receiving plaintiff's complaint in November 2007, Messner spoke with Woessner and told him if he was printing real estate documents at work, he needed to "stop it." According to Messner, "[i]t was a little counseling session based on progressive discipline." Woessner admitted he had printed some real estate material at work, but did not recall ever printing any such documents once counseled by Messner.

Plaintiff asserted that in 2007, he was denied mandatory police training. Messner, however, contended plaintiff was never denied any mandatory or non-mandatory training.

Plaintiff explained that in July 2007, Messner questioned him about an increase in plaintiff's use of sick time and a decline in his productivity. According to plaintiff, Messner questioned the authenticity of plaintiff's sick time. Messner explained, however, that he spoke with plaintiff because he was concerned about his health and well-being. Plaintiff admitted Messner in fact inquired about his health, and acknowledged he thanked Messner for his concern.

Plaintiff alleged that in November 2007, an unknown person posted a picture of Barahona in the Department's squad room, which was intended to harass, intimidate, and retaliate against plaintiff for his prior complaints. Plaintiff never complained to Messner or any of his supervisors, and left the picture hanging in the squad room before he eventually removed it. Messner testified he never saw the picture and did not receive any complaints regarding its posting.

On December 10, 2007, plaintiff began sick leave. He provided the Department with a doctor's note, dated December 11, 2007, with a diagnosis of acute respiratory distress syndrome (ARDS) and advised he would be on sick leave until January 10, 2008. On January 8, plaintiff returned to his doctor, who provided him with another note that did not contain a diagnosis, but stated: "[Plaintiff] has severe medical problems and is unable to work until further notice."

On January 7, 2008, while on sick leave, plaintiff sent a nine-page, single-spaced letter to Messner, wherein he listed many of the complaints he had against Smith and other officers. In the letter, plaintiff alleged that in 2006 Smith improperly brought his children to work, and that they had access to confidential information in the evidence room. Plaintiff stated that he did not complain about the incident when it occurred because Messner had also seen Smith's children inside the evidence room. Smith explained that while his children may have accompanied him to the Department, they performed strictly clerical work and never logged in any evidence. Messner stated he had witnessed Smith's children doing clerical work and did not have a problem.

On January 31, 2008, the Department retrieved the K-9 vehicle from plaintiff's driveway while he was not home. Weber could not reach plaintiff by telephone, but left a voicemail informing him the vehicle was being returned to the Department. That same day, plaintiff emailed Messner and Kratz, alleging that the vehicle was removed as a form of discipline for being on extended sick leave, and as retaliation for reporting misconduct by other police officers. Plaintiff believed he was abiding by an agreement regarding his use of the K-9 vehicle, and that he was entitled to use it while on sick leave.

Messner and Kratz stated that the vehicle was retrieved based on past practice and in the best interests of the Department, and not in order to discipline or retaliate against plaintiff. They explained that other Borough employees were required to return their take-home vehicles while on extended sick leave.

Plaintiff asserted that in 1998, the former Chief advised him that pursuant to the Fair Labor Standards Act,*fn1 plaintiff would receive twelve days of extra compensation annually for caring for the Department's police dog while off duty. Plaintiff also asserted that he would be provided personal use of the Department's K-9 vehicle. He admitted, however, that he neither signed nor received a copy of the document memorializing the agreement. Plaintiff explained that when he was questioned about the agreement, he told Messner he did not have a copy and advised that Messner consult Kratz about its details.

Messner and Kratz maintained that they were unaware of any alleged K-9 agreement. Kratz contacted the former Chief of Police when plaintiff could not produce the document. Messner and Kratz testified that the former Chief, who was a lawyer, drafted an agreement regarding plaintiff's K-9 duties and his use of the K-9 vehicle. However, the document was a draft agreement that was never finalized by the parties.

On February 12, 2008, Messner offered to return the vehicle to plaintiff, but plaintiff declined, explaining that he wanted to speak with his lawyer first. By letter to plaintiff dated February 29, 2008, Kratz reiterated that the vehicle was retrieved based upon Departmental needs, and that the decision to do so was not punitive.

By letter dated March 25, 2008, Kratz informed plaintiff that the Borough received conflicting information regarding his health, and that he was required to submit to an independent medical exam with a pulmonologist. Kratz sent the notice because plaintiff refused to provide the Department with any additional information regarding his medical condition or the expected duration of his sick leave.

On April 11, 2008, plaintiff filed an eight-count complaint alleging violations of CEPA (count one), breach of contract (count two), slander/libel (count three), intentional interference with business advantage (count four), intentional and negligent infliction of emotional distress (counts five and six, respectively), violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, (count seven), and various civil rights violations of 42 U.S.C.A. § 1983 (count eight).

On April 30, 2008, plaintiff wrote to Kratz, copying Messner, advising him that he was retiring effective October 1, 2008. In the letter, plaintiff requested payment for 130 sick days, compensation for twenty-four K-9 days at time-and-a-half pay, and other various forms of compensation.

By letter dated June 20, 2008, plaintiff complained to Messner and Kratz that Woessner continued to use Department resources to conduct his personal real estate business. Plaintiff referenced a Department fax confirmation sheet from "Lighthouse Real Estate and Financial Services," which according to plaintiff, was one of Woessner's registered business names.

As a result of plaintiff's complaint, Weber investigated whether Woessner was continuing his real estate business after Messner ordered him to stop. Weber determined plaintiff obtained the fax confirmation sheet by ordering Officer Adam Garcia, who was not under plaintiff's command, to deliver it to him at his home. Weber concluded Woessner had not engaged in any improper conduct. Weber admitted he did not interview plaintiff in connection with his investigation because an interview was unnecessary, as plaintiff already filled out an investigation questionnaire and submitted all available evidence.

On August 17, 2008, while still on sick leave and prior to the Department's decision regarding requested compensation upon retirement, plaintiff filed a complaint with Kratz regarding a fish tank Smith set up in the squad room. He contended the fish tank should not have been used by the Department, but should have been auctioned off because it had formerly been evidence from a burglary case in 2007. Smith explained, however, that he had contacted the tank's owners and was told he could keep it. Although the fish tank was set up, it was still listed as Department evidence.

By letter dated October 7, 2008, Kratz informed plaintiff that his requests for additional compensation had been denied, and that his request for sick time was denied because plaintiff was required to make a request for such payment before January 1 of the year such payment was sought. Plaintiff had not complied with the union's Collective Negotiated Agreement (CNA)*fn2 with the Department regarding pay out for sick time. Kratz also explained that plaintiff could not be paid for ...


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