September 5, 2012
RUSSELL J. LITCHULT, JR., PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 overtime allegedly worked while on sick leave. He further explained that these decisions were not punitive or retaliatory.
On April 30, 2010, defendants moved for summary judgment of plaintiff's complaint. The motion judge heard oral arguments, and on June 1, 2010, rendered an oral decision and entered a written order, granting defendants' motion, dismissing counts two through eight, dismissing any claim for punitive damages, and limiting plaintiff's CEPA claim to allegations that occurred after April 11, 2007, one year prior to the filing of plaintiff's complaint.
With regard to his dismissal of counts two through eight under CEPA's waiver provision, N.J.S.A. 34:19-8, the judge explained:
[T]he conduct asserted to be the basis of [plaintiff's] contract claim, [his] tort claims, [his] LAD disability retaliation claim, and [his] constitutional claims are identical to those actions allegedly taken in retaliation against [him] in violation of CEPA, and are indistinguishable, and inseparable from them.
The fact that [plaintiff] has asserted a CEPA claim will serve to bar the entirety of [his] other claims since they all arise from the same alleged acts or occurrences.
The judge also found that even if plaintiff's claims were not deemed waived, each one individually could not survive defendants' motion for summary judgment.
With regard to count two of plaintiff's claim, which asserted defendants' breach of the CNA between the police union and the Borough, the judge noted that plaintiff "failed to grieve any perceived violations of the collective bargaining agreement, other than the request for an independent medical examination, which omission bars him from pursuing any claims based upon any such violations." Additionally, the judge determined that plaintiff "ha[d] not pleaded any claims based upon the alleged K-9 contract," and that there was "[no] proof by plaintiff that the K-9 contract was ever agreed to by the Borough." The judge further determined that plaintiff "was able to schedule K-9 training whenever he desired," and that the Borough took possession "of the K-9 vehicle pursuant to Borough policy and past practice." Therefore, the judge concluded plaintiff was unable "to create a viable contract claim."
As to count three, plaintiff's defamation claim, the judge found that summary judgment was proper because plaintiff failed to file a Notice of Tort Claim pursuant to the requirements of New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4. Also, he determined that defendants were immune from suit, citing C.J. v. Vuinovich, 252 N.J. Super. 122 (App. Div. 1991), because there was no showing of malice on the part of defendants.
Plaintiff asserted in count four that defendants intentionally interfered with his business advantage. However, the judge found that this claim failed "since there are no facts in the motion record which establish that  defendants tortuously interfered with plaintiff's economic advantage."
As to count five, the judge determined the facts did not support a claim for intentional infliction of emotional distress. With regard to count six, alleging negligent infliction of emotional distress, the judge determined that not only was the claim barred by the TCA provision requiring the filing of a Notice of Tort Claim, which plaintiff failed to do, he also failed to present any evidence that his purported physical injury "could have been caused by any alleged conduct of  defendants."
With regard to count seven, the judge stated the LAD claim "must be dismissed as a result of the CEPA waiver provision" because plaintiff asserted that in December 2007, he was ill and unable to perform his job, and for that reason he suffered retaliation. The judge stated "[t]hus plaintiff's LAD and CEPA claims are undisputedly substantially related," and "the LAD claim must be barred by the CEPA waiver provision."
With regard to count eight, which alleged that defendants violated plaintiff's First Amendment rights, the judge concluded that qualified immunity applied to defendants. In support of his conclusion, the judge stated:
The evidence in the motion record established that Chief Messner and Borough Administrator Gary Kratz's actions were objectively reasonable, or at the very least, that Messner and Kratz's belief that their actions were lawful was objectively reasonable under the circumstances known to them. Plaintiff has failed to allege specifically what free speech he had engaged in, other than to report the conduct of other officers that he had perceived as to be improper.
Following the judge's decision and order, plaintiff filed a motion for reconsideration, which was denied. He also unsuccessfully moved for leave to appeal the June 1, 2010 order.
The remaining CEPA claim was tried between September 1 and 10, 2010, before a jury. The jury returned a no cause verdict, finding that plaintiff had failed to establish by a preponderance of the evidence that defendants took retaliatory measures against him.
On September 20, 2010, the judge entered an order for judgment in favor of defendants, dismissing the complaint with prejudice. Plaintiff subsequently filed a motion for a new trial, which was denied by order dated October 15, 2010.
With regard to plaintiff's assertion that summary judgment was improvidently granted, he raises the following arguments for our consideration on appeal: in dismissing his constructive discharge claim, the judge failed to consider all the evidence in the record; the judge erred by dismissing plaintiff's claim for punitive damages because such damages are allowed and appropriate under CEPA; the judged erred by dismissing plaintiff's First Amendment claim; the judge's factual finding, that plaintiff could have filed a grievance regarding improper denial of compensation after his retirement, was inaccurate; and the judge erred by failing to find plaintiff had a property right in the K-9 vehicle, and that such a taking was progressive discipline.
We begin our analysis by noting that we use the same standard as the trial court when reviewing a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 529-30. If no genuine issue of fact exists, we must then decide whether the motion court's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167.
Applying these standards, we conclude that summary judgment was properly granted.
First, we address all of plaintiff's claims other than his CEPA claim. Where a litigant seeks redress under CEPA, the litigant cannot plead other common law or statutory causes of action for the same conduct. Young v. Schering Corp., 275 N.J. Super. 221, 238 (App. Div. 1994), aff'd, 141 N.J. 16 (1995). CEPA's election of remedies provision states:
Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law. [N.J.S.A. 34:19-8 (emphasis added).]
This language is "clear and unambiguous" and the "institution of an action under CEPA constitutes a waiver of the rights and remedies available to plaintiff under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law." Ibid. However, "the waiver provision does not bar common law or statutory claims that are distinct from the CEPA claim." Notte v. Merchants Mut. Ins. Co., 386 N.J. Super. 623, 630 (App. Div. 2006).
Here, plaintiff's non-CEPA claims are clearly not distinct from his CEPA claim, as they are all based on the same exact facts underlying the CEPA claim. Accordingly, summary judgment dismissing plaintiff's non-CEPA claims was proper.
We also agree with the motion judge's determination that, even if plaintiff's non-CEPA claims were not waived, summary judgment was properly granted as to each of them individually.
Our review of the record is consistent with the determinations made in the judge's oral opinion. As such, we decline to address the decision to dismiss counts two through seven, as plaintiff's arguments regarding those claims do not merit further discussion in a written opinion on appeal. R. 2:11-3(e)(1)(E).
With regard to count eight, plaintiff's claim that he was deprived of his rights protected by the First Amendment to the United States Constitution, we first note that 42 U.S.C.A. § 1983 states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
A public employee's speech is protected by the First Amendment if it implicates matters of public concern. Pickering v. Board of Education, 391 U.S. 563, 571-72, 88 S. Ct. 1731, 1736, 20 L. Ed. 2d 811, 819 (1968). A public employee's speech involves a matter of public concern if it can "be [of] political, social, or other concern to the community." [Green v. Phila. Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997)]. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." [Connick v. Myers, 461 U.S. 138, 147-48, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708, 719-20 (1983)]. When "an employee [comments] upon matters only of personal interest, that public employee speaks not as a citizen upon matters of public policy." [Ibid.]. [Carlino v. Gloucester City High Sch., 57 F. Supp. 2d 1, 31 (D.N.J. 1999), aff'd, 44 Fed. Appx. 599 (3d Cir. 2002).]
However, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689, 701 (2006).
Here, there is no dispute that as a police officer, it was plaintiff's duty to report a fellow officer's unethical or illegal conduct. Consequently, it was not speech protected by the First Amendment.
Further, to prove a § 1983 claim, a plaintiff must show that a defendant's actions violated his Constitutional rights and that the defendant was "acting under color of State law." West v. Atkins, 487 U.S. 42, 48-49, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40, 48 (1988). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Id. at 49, 108 S. Ct. at 2255, 101 L. Ed. 2d at 49 (quoting United States v. Classic, 313 U.S. 299, 325, 61 S. Ct. 1031, 1043 L. Ed. 1638, 1383 (1941)).
Here, plaintiff's 42 U.S.C.A. § 1983 claim was based on an alleged violation of his First Amendment rights. However, plaintiff failed to prove when and how he was exercising any right recognized under the First Amendment. Consequently, he failed to prove a prima facie claim under 42 U.S.C.A. § 1983.
Public officials, such as law enforcement officers, are protected by qualified immunity if their alleged unlawful actions were objectively reasonable. Kirk v. City of Newark, 109 N.J. 173, 186-87 (1988). "Qualified immunity is an affirmative defense that the defendant must establish." Schneider v. Simonini, 163 N.J. 336, 354 (2000) (citing Gomez v. Toledo, 446 U.S. 635, 640-41, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572, 577-78 (1980)). "[T]he issue of qualified immunity is to be determined by the trial judge." Id. at 359. Here, we find that the judge's decision was amply supported by the record.
Accordingly, we see no reason to disturb the motion judge's grant of summary judgment to defendants on counts two through eight of plaintiff's complaint.
On appeal, plaintiff further contends the trial judge erred by denying his motion for a new trial. He raises the following arguments for our consideration: the jury instructions and verdict sheet were improper under CEPA, and the court failed to instruct the jury "as to any finding of emotional harm as a lesser finding to constructive discharge;" he was improperly denied the right to rebuttal testimony; he was improperly denied the right to fully cross-examine defendants' expert witness on the issue of motive and bias; the court erred by making improper comments regarding the alleged improper use of the fish tank; his expert was improperly denied the right to address the statutes potentially violated by defendants; it was plain error to admit into evidence the Barahona investigation report; and plaintiff's medical expert was improperly prohibited from testifying as to comments made by other members of the Department.
Prior to our analysis of the issues raised on appeal, we state the standards governing our review. Our judicial framework accepts that there is a presumption of correctness in jury verdicts. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). A trial judge may not substitute his judgment for that of the jury merely because he would have reached a different conclusion. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). When reviewing a motion for a new trial, the trial judge shall correct only clear errors or mistakes of the jury, when "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). See also Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter, supra, 74 N.J. at 596.
This court will not reverse a trial judge's determination of whether the jury verdict is against the weight of the evidence "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. See also Caldwell, supra, 136 N.J. at 432. Therefore, "'[t]he standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its feel of the case, including credibility.'" Ibid. (quoting Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984)). Beyond these "intangibles," this court is to make its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979).
With the above principles in mind, we address the challenges raised by plaintiff on appeal.
Plaintiff argues the trial judge erred in charging the jury and providing the verdict sheet without "the alternative charge under N.J.S.A. 34:19-3(c) and additional instruction as to any finding of emotional harm as a lesser finding to constructive discharge." According to plaintiff, "additional evidence should have respectfully been permitted and the jury should also have been instructed as to any emotional harm award in the event that they did not agree that Plaintiff was constructively discharged."
We acknowledge that proper jury charges are essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002); Vassallo v. Bell, 221 N.J. Super. 347, 376 (App. Div. 1987).
The failure to provide clear and correct jury charges may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
A reviewing court applies the same standard when evaluating the adequacy of jury interrogatories or a verdict sheet, as it does for jury instructions. Id. at 341; Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 467-68 (2000). Jury interrogatories and verdict sheets are meant to serve particular purposes: "to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized." Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968).
"[I]n reviewing [the verdict sheet] for reversible error, [appellate courts] should consider it in the context of the charge as a whole." Ponzo v. Pelle, 166 N.J. 481, 491 (2001). If the court's oral instructions "were sufficient to convey an understanding of the elements [of the cause of action] to the jury, and . . . the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless." State v. Gandhi, 201 N.J. 161, 197 (2010). Indeed, generally a verdict sheet is not grounds for reversal unless it was "misleading, confusing, or ambiguous." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997).
The statute prohibiting an employer's retaliatory action against an employee, N.J.S.A. 34:19-3, provides, in relevant part:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer . . . that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or
(2) is fraudulent or criminal . . . ; . . . . or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation . . . ; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
Here, the judge instructed the jury on N.J.S.A. 34:19-3(a). Over plaintiff's objection, the judge declined to instruct the jury on N.J.S.A. 34:19-3(c). During the charge conference, the judge noted the evidence established plaintiff had reported the alleged violations, but he found no evidence that plaintiff was asked to participate in any alleged wrongful activity.
Plaintiff also contends the jury charge was erroneous because it did not provide the jury with a "lesser alternative" to constructive discharge to consider. The judge concluded there was insufficient evidence to present a "lesser alternative" to constructive discharge to the jury.
Based on a careful review of the record, we agree that the trial judge's charge was supported by the evidence, and he did not err by failing to instruct the jury as plaintiff requested.
Plaintiff further contends the verdict sheet was erroneous because it failed to provide separate jury interrogatories for each distinct element of his CEPA claim because "the initial question required jurors to decide the fourth and final factor or element under CEPA rather than the jurors determining each of the four elements as set forth in the model jury charge 2.32." Moreover, he asserts that "[t]he jury was not instructed to consider the culmination of many instances of adverse action against Plaintiff but rather they were instructed solely on the issue of 'constructive discharge'."
The challenged jury interrogatory read:
Do you find that plaintiff . . . has proven by a preponderance of the evidence, that the defendant, Borough of Waldwick, retaliated against plaintiff because he disclosed to a supervisor or public body a policy or practice of defendant that plaintiff reasonably believed to be in violation of a law or rule or regulation promulgated pursuant to law?
Here, the jury instruction and verdict sheet were adequate in the context of trial. The judge instructed the jury pursuant to the Model Jury Charge (Civil), 2.32, "New Jersey Conscientious Employee Protection Act ("CEPA") (N.J.S.A. 34:19-1 et seq.)" (March 2010). The Model Jury Charge does not include a model jury verdict form. Nevertheless, when read as a whole, the charge as well as interrogatories and verdict sheet used by the judge, accurately reflected the law and were neither misleading nor confusing. Indeed, there was no indication that the jury was misled or confused by either the jury charge or the verdict sheet. When considered with the jury instruction as a whole, Ponzo, supra, 166 N.J. at 491, the verdict sheet was not "clearly capable of producing an unjust result." R. 2:10-2. As a result, the verdict sheet used did not constitute reversible error. See Wade, supra, 172 N.J. at 341; Mogull, supra, 162 N.J. at 467-68.
Plaintiff argues that his case was prejudiced by the court's denial of rebuttal testimony. It is well-settled that "the trial court has a wide range of discretion regarding the admissibility of proffered rebuttal evidence." Weiss v. Goldfarb, 295 N.J. Super. 212, 225 (App. Div. 1996), rev'd in part on other grounds, 154 N.J. 468 (1998).
The record does not support plaintiff's assertion that he requested rebuttal testimony and that the request was denied by the court. Therefore, the trial judge did not abuse his discretion. See ibid.
Plaintiff argues that the trial judge erred by denying him the right to fully cross-examine defendants' expert, Robert Verry, on the issue of Verry's motive and bias. Plaintiff's counsel sought to cross-examine Verry regarding accusations that he utilized the computers in the South Bound Brook Police Department for personal use while he was the Chief of Police.
The "scope of cross-examination is a matter resting in the broad discretion of the trial court." State v. Martini, 131 N.J. 176, 255 (1993). Indeed, "the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown." State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990). See also State v. Medina, 254 N.J. Super. 668, 680 (App. Div. 1992) ("[T]he scope of the cross-examination must be tailored to preserve fairness and prevent undue prejudice."). We discern no error in the judge's exercise of his discretion.
Plaintiff argues that the trial judge erred by making improper comments regarding an alleged violation of the law, relating to the improper use of the fish tank, which "led to defense counsel and the jury making fun or light of a violation of the law." However, because plaintiff did not object to these comments, and because this issue was not raised below in the motion for a new trial, it is reviewed under the plain error standard. R. 2:10-2.
The judge's comments regarding the fish tank, reviewed in the context of the entire record, which is substantial, did not have a prejudicial impact on plaintiff's case. See D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). Even assuming that they were inappropriate, they were not "clearly capable of producing an unjust result." R. 2:10-2.
Plaintiff asserts that the trial judge erred by denying plaintiff's expert "the right to address the potential laws violated by defendants' actions." This issue was not raised below and is therefore reviewed under the plain error standard.
R. 2:10-2. We find plaintiff's contention with regard to this argument advanced on appeal to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Plaintiff argues that the trial judge committed plain error by admitting the Barahona investigation report into evidence.
He contends that the report was inadmissible hearsay that "clearly prejudiced his case and opened the door for highly prejudicial comments to be made by defense counsel in summation."
A trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). See also Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (holding that the admissibility of evidence falls within the broad discretion of the trial judge.). On appellate review, a trial court's evidentiary ruling must be upheld "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). The Barahona investigation report was not offered for the truth of the matter asserted therein, namely improper use of excessive force by plaintiff. Rather, the report and other related evidence was introduced by defendants in an attempt to explain plaintiff's motives for filing numerous complaints, which defendants argued were frivolous or de minimis, against Smith, Woessner, and other officers, and in order to rebut plaintiff's claim that the Barahona investigation was procedurally defective. Moreover, the report was admitted to rebut plaintiff's expert's testimony, asserting that the procedures followed by Weber during the Barahona investigation into plaintiff's use of excessive force were procedurally defective or otherwise improper. Plaintiff placed the Barahona investigation at issue, and made the report relevant and admissible.
We discern no showing of an abuse of discretion in that the Barahona report was more probative than prejudicial under N.J.R.E. 403.
Lastly, plaintiff argues that the trial judge erred by refusing to permit his medical expert to testify about hearsay comments made by other police officers. We find plaintiff's contention on this issue to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
We discern no basis to overturn the motion judge's grant of summary judgment to defendants or the trial judge's denial of plaintiff's motion for a new trial.