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Trivers v. City of Atlantic City

Superior Court of New Jersey, Appellate Division

August 30, 2013

MICHAEL TRIVERS, Plaintiff-Appellant,
v.
CITY OF ATLANTIC CITY, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 30, 2013

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-606-10.

The Douglass Law Firm, attorneys for appellant (Michelle J. Douglass, on the briefs).

Ruderman & Glickman, P.C., attorneys for respondent (Steven S. Glickman, of counsel; Vincent M. Avery, on the brief).

Before Judges Grall, Simonelli and Accurso.

PER CURIAM

Plaintiff Michael Trivers appeals from a summary judgment dismissing his complaint alleging violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14, and the New Jersey Civil Rights Act ("CRA"), N.J.S.A. 10:6-1 to -2. We affirm.

The facts are set forth at length in the trial judge's twenty-page opinion. We summarize here only those facts necessary to give context to the discussion. Plaintiff is an Atlantic City police officer. Following several years in the motorcycle unit of the traffic division, he received a requested transfer to the crash investigation unit in 2007. In accordance with the collective bargaining agreement, plaintiff received an additional three percent salary differential for his assignment in this investigative unit.

Following his investigation in January 2009 of a minor one-car accident in a parking garage, which his superiors came to believe was poorly done, plaintiff was transferred out of the traffic division and into the patrol unit in February 2009. As a result, plaintiff ceased receiving the three percent pay differential paid to crash investigators. Although he now contends that he should have been afforded a hearing before being transferred out of the crash investigation unit, he did not request a hearing at the time of his transfer.

In addition to transferring him out of the crash investigation unit, plaintiff's superiors also instituted an internal affairs investigation into his alleged neglect of duty in connection with his investigation of the accident. He was thereafter ordered to submit a new report of the accident, amending its conclusion. Plaintiff refused to do so. He claims he refused because he believed that to create a new report as if the original never existed was contrary to proper procedure and possibly a violation of the law.

Shortly after his transfer into the patrol unit, a sergeant in the detective bureau approached plaintiff and asked him to submit a request to transfer out of that unit and into the detective unit. Detectives were also contractually entitled to the three percent pay differential plaintiff lost when he was transferred to the patrol unit. Plaintiff made the request, but it was never granted. Plaintiff alleged that the failure to act on his request was retaliatory.

The officer conducting the internal affairs investigation of plaintiff originally concluded that the neglect of duty charge could not be proved. That officer, however, was overruled by his superior, and the charge was sustained. Plaintiff was thereafter served in September 2009 with a Notice of Pending Disciplinary Action alleging neglect of duty in connection with his investigation of the one-car accident. The notice also advised that, in the event plaintiff wished to waive his right to a hearing, the "disciplinary action" would be his transfer from the traffic unit, which had happened seven months earlier. Plaintiff advised that he would not waive his right to a hearing, and he was thereafter informed that the department intended to seek a three-day suspension.

Plaintiff never served a suspension. He went out on stress leave shortly after being served with the Notice of Pending Disciplinary Action. At the disciplinary hearing in May 2010, plaintiff's counsel moved to dismiss the charge asserting that plaintiff's transfer out of the crash investigation unit was disciplinary in nature. Plaintiff contended that his 2009 transfer ...


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