GUADALUPE MUÃOZ v. CITY OF PERTH AMBOY POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3415-09T4

GUADALUPE MU OZ,

Plaintiff-Appellant,

v.

CITY OF PERTH AMBOY

POLICE DEPARTMENT, DEPUTY

CHIEF E.J. McDONALD, and

CHIEF MICHAEL KOHUT,

Defendants-Respondents.

____________________________

November 22, 2010

Argued November 1, 2010 - Decided

Before Judges Reisner, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, LawDivision, MiddlesexCounty, DocketNo. L-5157-07.

Mark A. Mulick argued the cause for appellant.

Fredrick L. Rubenstein argued the cause for respondent City of Perth Amboy Police Department (James P. Nolan & Associates, L.L.C., attorneys; Mr. Rubenstein, on the brief).

Mitzy Galis-Menendez argued the cause for respondent Deputy Chief E.J. McDonald (Chasan Leyner & Lamparello, P.C., attorneys; Ms. Galis-Menendez, of counsel and on the brief; Kirstin Bohn, on the brief).

Daniel J. McCarthy argued the cause for respondent Chief Michael Kohut (Rogut McCarthy, L.L.C., attorneys; Mr. McCarthy, on the brief).

PER CURIAM

This case involves a claim of retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff Guadalupe Mu oz appeals from a January 22, 2010 order denying his motion for leave to file a third amended complaint, and from a February 8, 2010 final order granting summary judgment in favor of defendants City of Perth Amboy Police Department (Department), Deputy Chief E.J. McDonald, and Chief Michael Kohut.

I

In this case, plaintiff claimed that, in connection with an earlier LAD case in which he asserted national origin discrimination, the Department retaliated against him in violation of the LAD's prohibition against taking reprisals against persons asserting rights under the LAD. N.J.S.A. 10:5-12(d).

A. The First LAD Complaint

The background of the previous LAD case was detailed in our opinion, affirming the jury's finding of discrimination and the trial judge's decision to remit the amount of the damages award. Mu oz v. City of Perth Amboy Police Dep't, No. A-6254-06 (July 29, 2009).

We briefly summarize the most relevant points concerning the first LAD case. Plaintiff, the only Mexican-American police officer employed by the Department at that time, contended that he was subjected to a hostile work environment because of his national origin. At the trial, he and other witnesses testified that he was subjected to ethnic jokes and slurs and was given the "cold shoulder" by other officers.

Plaintiff also alleged that a supervisor, Sergeant Conway, failed to back him up while he was attempting to arrest two struggling suspects. Plaintiff testified that, at Conway's direction, he filed a falsified police report covering up Conway's failure to assist him with the arrest. In his testimony, Conway denied failing to assist plaintiff or directing him to file a false report.

Plaintiff also presented evidence that Kohut, then the police chief, had made discriminatory remarks about Mexicans at two police training sessions. Kohut's remarks were later reported in the community and caused considerable public controversy. At the trial, Kohut admitted making the comments. Plaintiff's supervisor, Sergeant Denise Sosulski corroborated plaintiff's recollection of the comments, but testified that she understood Kohut intended his remarks as a joke and she thought plaintiff understood that as well. She also testified to a meeting at which Kohut apologized for making the comments.

On May 24, 2007, the jury returned a verdict against the Department and Kohut, and awarded plaintiff $1.9 million in damages. The trial judge remitted the verdict to $300,000, which plaintiff eventually accepted after we decided his appeal in 2009.

B. The Second LAD Complaint

On June 4, 2007, less than two weeks after the jury rendered its verdict, plaintiff filed another complaint, this time alleging reprisal, in violation of N.J.S.A. 10:5-12(d). The second complaint asserted that during the discrimination trial, Sosulski "testified that she had been ordered to change her testimony by defendant, Deputy Chief E.J. McDonald, because it was favorable to plaintiff."1

In 2009, he again amended the complaint, to add an allegation that after the verdict in the first case, Kohut "attempted to initiate a criminal prosecution against plaintiff and Sergeant Denise [Sosulski] on charges of perjury." The 2009 amended complaint noted, however, that the prosecutor had "declined to pursue an investigation."

After discovery was completed and while defendants' summary judgment motions were pending, plaintiff filed a motion for leave to file a third amended complaint, seeking to allege a new incident of alleged reprisal and to add a new defendant. The civil presiding judge denied the motion by order dated January 22, 2010.

Based on the record provided to us on this appeal, we summarize the most pertinent evidence concerning the reprisal complaint. At the LAD trial, the defense called Sosulski as a witness. During her cross-examination by plaintiff's counsel, she admitted attending a "pre-interview" before the trial, at which Deputy Chief McDonald was present. When asked if McDonald instructed her to change her proposed testimony to avoid giving information favorable to plaintiff, Sosulski replied, "No." She added that he "didn't like the way I worded something" but she told McDonald that "I word it the way I word it and that's it." She admitted, however, that McDonald wanted her to change the wording, but when asked if his motive was "[b]ecause he thought that what you were saying would favor Officer Mu oz and not Chief Kohut," she replied "If that's what he was thinking, yes."

At a deposition taken during discovery on the reprisal case, Sosulski gave more specific information about the conversation with McDonald to which she had testified at the trial. According to Sosulski, the testimony at issue concerned the training session in which Kohut had made disparaging remarks about Mexicans. At the pre-interview meeting Sosulski described seeing "everyone" at the training session turning and looking at plaintiff, the only Mexican officer in the room.

However, after she gave her description, McDonald pointed out that her phrasing was imprecise, because she was sitting in the middle of the training room and thus would not have been able to see "everyone" in that room. Sosulski agreed it was more accurate to say that everyone she could see was staring at plaintiff, but she felt embarrassed that McDonald had corrected her in front of everyone else at the pre-interview meeting. At her deposition, Sosulski indicated that she was not aware of anyone having investigated her after the trial.

In 2007, shortly after the trial, Kohut told the Middlesex County Prosecutor that there had been allegations during the trial that Sosulski had been asked to change her testimony, and that plaintiff may have given some untruthful testimony. According to Kohut, he did not suggest an investigation of McDonald, because, having attended the pre-interview meeting, he was aware that McDonald had done nothing inappropriate. At his deposition, Kohut testified that nothing further came of his conversation with the prosecutor.

At his deposition, the prosecutor testified that in their conversation, Kohut mentioned that he thought some of plaintiff's trial testimony was not truthful, and he asked the prosecutor's office to investigate plaintiff for possible perjury. However, because the jury had decided in plaintiff's favor after a plenary trial, the prosecutor declined to take any action:

I told him that our office would not be initiating a criminal investigation because the issues had been fairly vetted and decided upon by the jury in the trial.

According to the prosecutor, Kohut did not ask him to undertake any investigation of Sosulski or McDonald. However, in 2008, after becoming aware of plaintiff's reprisal complaint, the prosecutor's office investigated whether McDonald "put undue influence on [Sosulski]." During that investigation, his office interviewed Sosulski and reviewed her deposition testimony, and concluded that "there was no undue influence asserted upon her by . . . McDonald." He also explained that Kohut could not have investigated the allegation against McDonald, because Kohut had been present at the pre-interview meeting and therefore was a witness.

In his deposition, plaintiff insisted that the first time he heard that Sosulski might have been pressured to change her testimony was when he heard her testify at the LAD trial.

C. The Summary Judgment Motion

In an oral opinion placed on the record on January 28, 2010, the motion judge concluded that plaintiff's evidence did not establish that either McDonald or Kohut retaliated against him. He first noted that the evidence concerning McDonald simply did not support a conclusion that he tried to intimidate Sosulski. Rather, McDonald questioned a detail of her recollection concerning how she could see "everyone" in the room looking at plaintiff when "she was sitting in the middle [of the] room and, obviously, could not see everybody who was in the room." The judge also concluded that McDonald's action was not directed at plaintiff, but at Sosulski, who was not engaging in any protected activity under the LAD at the time McDonald spoke to her.

The judge also found that Kohut did not retaliate against plaintiff, because Kohut "was under a duty, pursuant to the Attorney General's Guidelines to report this information [possible perjury or filing a false police report] to the Prosecutor." Relying on Spinks v. Township of Clinton, 402 N.J. Super. 465 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009), the judge reasoned that Kohut needed to be able to report possible employee misconduct to the appropriate authority without fear of liability under the LAD.

II

Our review of the trial court's decision is de novo.

In deciding a motion for summary judgment, the trial court must determine whether the evidence, when viewed in a light most favorable to the non-moving party, would permit a rational fact-finder to resolve the dispute in the non-moving party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The trial court cannot decide issues of fact but must decide whether there are any such issues of fact. Ibid.; R. 4:46-2(c). Our review of a trial court's summary judgment decision is de novo, applying the Brill standard. Prudential Prop. & Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

[Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).]

Based on our review of the record presented to us, we conclude that, even viewed in the light most favorable to plaintiff, the evidence does not support a claim of reprisal under the LAD. We also find no abuse of discretion in the civil presiding judge's order denying plaintiff's motion to amend his complaint to add a new claim and a new defendant, shortly before the scheduled trial date.

Under the anti-reprisal provision of the LAD, it is unlawful:

For any person to take reprisals against any person because that person has . . . filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12(d).]

In construing an analogous provision of Title VII, the United States Supreme Court recognized that: "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Burlington Northern v. White, 548 U.S. 53, 63, 126 S. Ct. 2405, 2412, 165 L. Ed. 2d 345, 357 (2006). Following Burlington, our Supreme Court recently held in Roa v. LAFE, 200 N.J. 555 (2010), that a prohibited reprisal need not take place in the workplace and need not affect the plaintiff's employment conditions. Adopting the approach taken in Burlington, the Court held:

[T]he Supreme Court's holding that Title VII created a distinct cause of action for retaliatory conduct that need not be related to the workplace applies with equal force to the LAD. That is consistent with the express language of the LAD, as well as the broad remedial purposes underlying it.

[Roa, supra, 200 N.J. at 574.]

Instead of focusing on workplace impact, the Court focused on whether the alleged retaliatory conduct was a minor inconvenience or otherwise trivial, or whether it was serious enough that it might dissuade a reasonable employee from pursuing LAD rights or from supporting a fellow employee's LAD complaint. "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, 'which in this context means it well might have "dissuaded a reasonable worker from making or supporting a charge of discrimination."'" Id. at 575 (quoting Burlington, supra, 548 U.S. at 61, 68, 126 S. Ct. at 2411, 2415, 165 L. Ed. 2d at 355, 359).

In Roa, the plaintiff alleged that he reported that female employees were being sexually harassed. He contended that, after he left employment, the employer wrongfully canceled his health insurance, resulting in severe financial hardship for his family. The Court held that, if done to retaliate against plaintiff for reporting a LAD violation, that post-termination act could constitute an illegal reprisal. Id. at 575-76. Thus, both the employer's motivation for the cancellation, and the seriousness of its impact on the plaintiff, were relevant in determining whether it was an illegal reprisal. As the Court stated in Burlington, "[t]he antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington, supra, 548 U.S. at 67, 126 S. Ct. at 2414, 165 L. Ed. 2d at 359.

The anti-reprisal section of the LAD also protects persons who support a LAD plaintiff and persons harmed as part of a retaliation against the plaintiff. "Reprisals against 'innocent victims,' such as relatives and close friends who are coworkers [of a LAD plaintiff], can be coercive, even when the coercion is unintentional." Craig v. Suburban Cablevision, 140 N.J. 623, 633 (1995). In Craig, the plaintiff's mother, sister and friends lost their jobs when, allegedly as part of a reprisal against the plaintiff, the employer closed the entire department in which the plaintiff worked.

Other cases have held that malicious prosecution may constitute actionable reprisal. See Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996). Further, in Villescas v. Richardson, 124 F. Supp. 2d 647 (D. Colo. 2000), an investigation into a witness's personal life, followed by the filing of a detailed formal administrative complaint against him, was held to constitute a reprisal. See Villescas v. Abraham, 311 F.3d 1253 (10th Cir. 2002).

Viewed in light of the applicable law, we conclude that plaintiff did not produce legally competent evidence of any actionable reprisals under the LAD. First addressing the allegations about Sosulski, we find no evidence that she was subjected to retaliation. At the LAD trial, she first flatly denied that McDonald pressured her to change her proposed testimony. She later equivocated somewhat, but because plaintiff's attorney did not pursue the topic, she provided absolutely no specific information from which jurors could determine whether McDonald tried to coerce her.

When, long after the trial, she was finally asked to provide specific information at a deposition, Sosulski testified that McDonald challenged her statement that "everyone" in the room was looking at plaintiff, when she was not in a position to see everyone in the room. She acknowledged that McDonald's observation was correct. She further testified that she did not perceive McDonald's question as an attempt to coerce her, although she found it annoying. No reasonable jury could conclude that McDonald subjected Sosulski to reprisals, or that he attempted to dissuade her from providing truthful information favorable to plaintiff.

This record also does not support plaintiff's assertion that Kohut attempted to "get Sosulski indicted" for her role in the LAD trial. According to the prosecutor's sworn testimony, it was plaintiff and not Kohut who caused the prosecutor's office to conduct an investigation. And the investigation was not focused on any alleged wrongdoing by Sosulski. Rather, the investigation, spurred by plaintiff's reprisal complaint, focused on whether McDonald had improperly attempted to influence Sosulski's trial testimony.

We likewise find that plaintiff's allegations against Kohut do not rise to the level of actionable reprisal. Viewed in the light most favorable to plaintiff, Kohut had one conversation with the prosecutor in which he expressed his view that plaintiff may have given untruthful testimony at the LAD trial.2 During that conversation, the prosecutor observed that the jury had passed upon the credibility of the trial witnesses and his office would not pursue the matter. Unlike Villescas and Berry, on which plaintiff relies, Kohut did not file any formal complaint against plaintiff and there was no investigation or prosecution. Nothing of consequence occurred.

Kohut had one informal conversation with the prosecutor, who gave him a commonsense response and took no action. While we in no way condone a possible effort, however tentative, to misuse the criminal justice system to re-litigate the loss of a civil case, the fact remains that plaintiff suffered no "injury or harm." Burlington, supra, 548 U.S. at 68. The facts, even viewed in the light most favorable to plaintiff, do not establish a "materially adverse" action under the LAD. See Roa, supra, 200 N.J. at 575.

Finally, we find no abuse of discretion in the decision of the civil presiding judge to deny plaintiff's motion to amend the complaint. Permitting plaintiff to add a new defendant and a new allegation completely unrelated to the existing allegations of the complaint, would have required re-opening discovery and would have caused unreasonable delay. See Morales v. Academy of Aquatic Sc., 302 N.J. Super. 50, 56 (App. Div. 1997).

Affirmed.

1 In 2008, plaintiff filed an amended complaint adding an allegation that he had been disciplined in reprisal for his earlier LAD complaint. However, that claim was dismissed and is not the subject of this appeal.

2 It is not even clear from this record whether Kohut's expression of concern related to plaintiff's claim that he was required to file an inaccurate police report or whether it related to other trial testimony.