ROBERT J. WATKINS v. STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, ET AL.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5663-03T25663-03T2
ROBERT J. WATKINS,
STATE OF NEW JERSEY, OFFICE OF
THE ATTORNEY GENERAL; JOHN J.
FARMER, JR., ATTORNEY GENERAL;
STATE OF NEW JERSEY, DIVISION
OF STATE POLICE; LT. COL.
MICHAEL FEDORKO, ACTING
SUPERINTENDENT; THE NEW JERSEY
DIVISION OF PURCHASE AND
PROPERTY; MARGARET DOYLE;
CAPTAIN JOSEPH SARNECKY;
CAPTAIN FREDERICK MADDEN;
CAPTAIN RUDY CHESKO; CAPTAIN
HOWARD BUTT; CAPTAIN FRANK
McNULTY; CAPTAIN LAWRENCE
LARSEN; LT. BRIAN REILLY; LT.
GARRY HOLMBERG, SFC KEVIN
MOORE, JOHN DOES 1-10,
Argued September 21, 2005 - Decided January 30, 2006
Before Judges Stern, Grall and Levy.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Docket No. 3387-99.
Arthur J. Murray argued the cause for appellant
(Jacobs & Barbone, attorneys; Louis M. Barbone,
of counsel; Mr. Barbone and Mr. Murray, on the
Vincent J. Risso, Jr., Deputy Attorney General,
argued the cause for respondents (Peter C. Harvey,
Attorney General, attorney; Patrick DeAlmeida,
Assistant Attorney General, of counsel; Mr. Rizzo,
on the brief).
Plaintiff appeals from an order of May 12, 2004, granting defendants' motion for summary judgment and dismissing his complaint under the Conscientious Employee Protection Act (CEPA). N.J.S.A. 34:19-1 et seq. The order was based on Judge Andrew Smithson's letter opinion of the same day.
Plaintiff is a Sergeant First Class in the New Jersey Division of State Police, a defendant in this suit. During the 1990's, the Division of State Police began researching and testing a Computer Aided Dispatch and Records Management System (CAD/RAM) for future purchase. The plaintiff was heavily involved in the early stages of the project.
On June 6, 1996, Bull HN Information Systems, Inc. (Bull) was awarded the contract to install the system for the State Police. During the final stages of procuring a CAD system, plaintiff was contacted by Major Tezsla, who asked him to become project manager. Plaintiff declined for two reasons. First, he had had several "confrontations" and "personal disagreements" with Captain Madden, the head of the Criminal Justice Records Bureau which controlled the CAD Unit. Second, he was concerned with the long hours and the long drive to Division Headquarters, which was an hour and forty-five minutes from his South Jersey home. At a later date, Major Tezsla again asked plaintiff to become project manager, and he, again, declined the position. However, after Major Tezsla informed plaintiff that he would become Project Director, which would alleviate any problems with Captain Madden, and that he would set up a work space for plaintiff at the Buena Vista Headquarters in South Jersey, plaintiff agreed to become project manager. In 1997, the CAD Unit was officially established and plaintiff was named Unit Supervisor.
From the beginning of the procurement process, plaintiff had concern about Bull's ability to perform the job. After the contract was awarded to Bull, plaintiff complained about its conduct, and recommended that penalties be imposed under the contract because of its delays, but the CAD Management Committee did not agree with the suggestion. In April 1998, Bull entered into a Memorandum of Understanding with the State Police concerning the settlement of disputes. Plaintiff complained that the procedure embodied in the Memorandum was not honored, and that the appropriate Bull project manager was bypassed concerning disputes.
Upon his retirement, Major Tezsla was replaced by Captain Frank McNulty who, on August 3, 1998, removed plaintiff as project manager and named Lieutenant Kevin Moore, plaintiff's assistant, to replace him. Captain McNulty asserted he did so because the project manager had to be located at Division Headquarters. Plaintiff was also removed as Unit Supervisor, and was named Assistant Supervisor, before seeking a transfer to Troop A at Buena Vista. At the time of the transfer, the CAD Unit had no lieutenant position available. When a lieutenant position was subsequently created for the Unit, Moore was promoted. However, plaintiff maintained his rank of Sergeant First Class upon transfer to Troop A. Plaintiff insists his loss of positions constituted "demotions." He also asserts he was the victim of adverse unlawful "retaliatory action," based on his complaints about the Division's violations of the CAD-RAM Memorandum of Understanding and the Division's failure to remedy and correct the problems with the contractor that he pointed out.
On this appeal, plaintiff specifically contends that "the trial court erred by not finding that the totality of the circumstances showed that genuine issues of material fact existed [regarding] whether defendants, by their actions, were in violation of [CEPA]," that summary judgment should have been denied under the "law of the case" doctrine because of a prior denial of summary judgment without prejudice, and that summary judgment was improperly granted.
We affirm the judgment substantially for the reasons expressed by Judge Smithson in his letter opinion of May 12, 2004. Judge Smithson concluded that "[p]laintiff did not blow the whistle by voicing concerns over the implementation of CAD because those activities do not constitute disclosure," as the Division's superiors were well "aware of the project's problems" and the delays in Bull's performance under the contract. The judge also determined that "reporting breaches of the Memo of Understanding were not acts of whistleblowing" because no public policy is violated by the breach of its terms, and the concerns for trooper safety were "too attenuated to have been implicated by the complained of behavior." Ibid. We agree, and add the following:
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 . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . . .
. . . .
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; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
"'Retaliatory action' means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e).
"[A] court examining a CEPA claim 'must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true." Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 310 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998) (quoting Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied, 138 N.J. 267 (1994)). Stated differently:
In order to maintain a cause of action under subsections a. or c. of CEPA, a plaintiff must satisfy the following elements: (1) that he or she reasonably believed that his or her employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he or she performed whistle-blowing activity described in N.J.S.A. 34:19-3a, c(1) or c(2); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. A claimant under subsection c(3) must establish the same prima facie elements, however, he or she must first articulate the existence of a clear mandate of public policy which the employer's conduct violates.
[Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999) (citations omitted).]
"Sources of public policy include the United States and New Jersey Constitutions; federal and state laws and administrative rules, regulations, and decisions; the common law and specific judicial decisions; and in certain cases, professional codes of ethics." MacDougall v. Weichert, 144 N.J. 380, 391 (1996) (citations omitted).
However, "[a] vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate. Its alleged violation will not sustain a wrongful discharge cause of action." Id. at 392. Moreover, the Supreme Court has stated that "a 'clear mandate' of public policy suggests an analog to a constitutional provision, statute, and rule or regulation promulgated pursuant to law such that, under Section 3c(3), there should be a high degree of public certitude in respect of acceptable versus unacceptable conduct." Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 444 (2004) (emphasis in original). "The legislative approach vis- -vis a 'clear' mandate of public policy bespeaks a desire not to have CEPA actions devolve into arguments between employees and employers over what is, and is not, correct public policy." Ibid. "Such an approach also fits with the legislative requirement of a 'mandate' as opposed to a less rigorous standard for the type of public policy that is implicated." Id. at 444-445. See also Mehlman v. Mobil Oil Corp., 153 N.J. 163, 189-90 (1998).
We agree with Judge Smithson that the alleged breaches of a contract or the Memorandum of Understanding did not implicate any violation of a "clear mandate of public policy," N.J.S.A. 34:19-3(c)(3), and that any connection with public policy was "too attenuated" in this case. A dispute with supervisors regarding how to proceed on perceived violations of an agreement the employer has entered cannot reasonably be turned into a basis for action under CEPA. In any event, plaintiff did not "disclose, or threaten to disclose," any misconduct, as required by CEPA. N.J.S.A. 34:19-3(a). Plaintiff's concerns regarding Bull's delays and the complaints that he voiced were part and parcel of his position as project manager and a participant at CAD committee meetings, and he voiced them to others aware of the problems in the project. The fact that the defendants disagreed with plaintiff's suggestions as to how to remedy the problems does not transform the nature of the complaints into disclosures or constitute "whistleblowing" activity required to trigger the protections of CEPA.
As already noted, there was no lieutenant position in the CAD unit while plaintiff was there, and he had no desire to drive to West Trenton Division Headquarters. When Major McNulty replaced Major Tezsla upon his retirement, a new management team was put in place, and plaintiff was not reduced in rank or pay. Nevertheless, in light of our disposition that plaintiff was not a "whistleblower" within the meaning of CEPA, we need not decide if plaintiff suffered unlawful "retaliatory action."
In summary, we hold that the plaintiff was not a "whistleblower" within the meaning of CEPA because he disclosed nothing to a supervisor or public body in the manner contemplated by the Act.
The judgment is affirmed.
After his retirement, Major Tezsla told an internal investigator he had "told SFC Watkins that eventually he would have to come to [the] Division full time . . . once the vendor was selected and their representative was at [the] division."
According to McNulty's deposition:
A. I talked to Sergeant Watkins on the 4th, 5th and 6th, actually the 7th, I talked to him every day of that week. Monday was the only day I saw him in person. The other days I talked to him on the phone.
I asked Sergeant Watkins if there was anything I could offer him at division headquarters, and he advised that if it meant coming to division headquarters on a full-time basis, there was nothing I could offer him. I then asked him if he would consider a transfer to the field services unit, and the reason I asked him to consider that is because that unit, basically, works out of their home. They come in to division headquarters every once in a while. They, basically, work out of their homes, they go around to the police departments, the courts, the prosecutors. They monitor the automated criminal history system out in the field and also the automated/paperwork court disposition reporting system out in the field.
So I felt that that would be a good trade-off for Sergeant Watkins because he could have a position in the field services unit which would allow him to work out of his house. There was a lieutenant's position in the field services unit. He would have been one of two SFCs in that unit, so, ultimately he could potentially vie for a lieutenant's position. I asked him to contact Lieutenant Toner, who was in charge of that unit, to ask any questions he may have of the unit's responsibilities and duties, and then to get back to me on his decision.
Sergeant Watkins got back to me, I believe, the same day, and advised me that he was not interested in a transfer to the field services unit. Since I was out of options at that point in time as far as accommodating Sergeant Watkins within the records identification section, I asked Sergeant Watkins what his opinion would be as to what he wanted to do. He asked if I could transfer him back to troop A.
The first motion judge noted that the motion could be renewed at the beginning of the trial when defendants could develop "how promotions are made."
According to the plaintiff's brief, "Watkins' complaints about violations of the contract and violations of the memorandum of understanding went to the issue of trooper safety and public safety. Moreover, his movement toward enforcing the contract by fining Bull and/or replacing Bull at Bull's expense with another contractor conformed to the . . . instructions that he wanted aggressive contract management by protecting the interests of the taxpaying public . . ."
January 30, 2006