KEVIN THOMAS EDDY v. STATE OF NEW JERSEY

 

OT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3129-07T13129-07T1

KEVIN THOMAS EDDY,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY and NEW

JERSEY STATE POLICE,

Defendants-Respondents.

________________________________________________________________

 

Argued November 3, 2008 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Docket No. L-2106-07.

Arthur J. Murray argued the cause for

appellant (Jacobs & Barbone, attorneys;

Mr. Murray, of counsel and on the brief).

Melanie L. Armstrong, Deputy Attorney

General, argued the cause for respondents

(Anne Milgram, Attorney General, attorney;

Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Ms. Armstrong, on

the brief).

PER CURIAM

Plaintiff Kevin Thomas Eddy, a New Jersey State Police Sergeant assigned to the Marine Services Bureau, brought an action pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, claiming that he was retaliated against for his objections to the reduction of overtime and manpower at the Atlantic City station where he was assigned. Following a change of venue from the Law Division in Cape May County to the Law Division in Mercer County and the filing of an answer, defendants the State of New Jersey and the New Jersey State Police filed a motion to dismiss for failure to state a cause of action, R. 4:6-2(e). The motion judge granted the motion, and plaintiff appeals. We affirm.

Because the motion to dismiss was considered on the pleadings, the motion judge was obligated "to assume the truthfulness of the allegations contained in plaintiffs' complaints, giving plaintiffs the benefit of all reasonable factual inferences that those allegations support." Edwards v. Prudential Property and Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003)(citing F.G. v. MacDonell, 150 N.J. 550, 556 (1997)). In our review, we are obligated to analyze "the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005) (citing Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)). With this standard in mind, we state the relevant facts as set forth in the complaint.

Plaintiff, a member of the State Police since June 1986, held the position of Squad Supervisor/Leader. In January of 2000, plaintiff was promoted to the rank of Sergeant and then given the designation of Staff Sergeant in August 2001. This designation to Staff Sergeant resulted in an increase in pay and a change in uniform insignia, and was viewed by rank and file troopers as a promotion.

In August 2004, plaintiff was assigned to the Atlantic City Station of the Marine Services Bureau. That same month on August 21, 2004, Sergeant First Class Simmermon made the reduction of overtime a priority at the Atlantic City Station. Shortly thereafter and on multiple occasions, plaintiff voiced his concern stating that the reduction of overtime should not come at the expense of public or trooper safety. He indicated that the overriding priority must be to ensure there are an adequate number of troopers with the proper equipment to keep the Atlantic City Station operable and viable.

In November 2004, S.F.C. Simmermon began receiving increased pressure from his superiors, including Assistant Marine Bureau Chief Lieutenant Scarpone, regarding reductions in overtime at the Atlantic City Station. In response, plaintiff sent an email stating again that overtime stemmed from the manpower/trooper shortage at the Atlantic City Station and that neither the public nor the troopers should be put at risk due to the shortages.

On December 22, 2004 S.F.C. Simmermon was promoted to Lieutenant. On June 1, 2005, plaintiff then forwarded an email to Lt. Simmermon again discussing the manpower shortages. On June 16, 2005, plaintiff requested that Lt. Simmermon forward his concerns up the chain of command.

In January 2006, Lt. Simmermon was transferred to Assistant Bureau Chief of the Marine Services Bureau. Then on May 23, 2006, plaintiff forwarded a New Jersey State Police Special Report regarding the manpower concerns to Captain Mallette, the Bureau Chief for Marine Services. Plaintiff also forwarded a copy of the Special Report to his union, the State Troopers Non-Commissioned Officers Association.

Finally, on August 19, 2006, without requesting it and without explanation, plaintiff was transferred to the Bivalve Station and on February 3, 2007, was again transferred and demoted.

After the complaint was filed, defendants moved to dismiss the complaint. The motion was granted, and this appeal followed.

Under CEPA, employees have a claim for retaliation against their employer for adverse employment actions taken as a result of the employee reporting the employer's illegal activities or activities that run contrary to public policy. Specifically, the relevant provision of CEPA provide:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

. . . .

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 or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

(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.

[N.J.S.A. 34:19-3(c)(emphasis added).]

The New Jersey Supreme Court described the elements necessary to establish a viable a CEPA claim in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999)):

A plaintiff who brings a cause of action pursuant to N.J.S.A. 34:19-3(c) must demonstrate that: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulations promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (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.

The narrow threshold issue here, identified by Judge Mathesius in the Law Division and acknowledged by plaintiff, is that the court "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 alleged are true.'" Dzwonar, supra, 177 N.J. at 463 (citing Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied, 138 N.J. 267 (1994)) (citations omitted)(emphasis added). More specifically, the issue is whether the restrictions on overtime and the ensuing manpower shortages asserted by plaintiff are "incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment." N.J.S.A. 34:19-3(c).

In addressing this issue, we are guided by established principles. The "determination whether the plaintiff adequately has established the existence of a clear mandate of public policy is an issue of law." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998); see also Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 40 (App. Div. 2005); Gerard v. Camden County Health Servs., 348 N.J. Super. 516, 521 (App. Div. 2002).

The Court has acknowledged that in CEPA claims, "because the sources and parameters of public policy are not susceptible to hard and fast rules, 'the judiciary must define the cause of action in case-by-case determinations.' That recognition applies not only to the common-law retaliatory discharge claim but to the more expansive CEPA claim as well" Mehlman, supra, 153 N.J. at 187 (citing Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980)). Mehlman informs us on this issue as it searches for a definition of "clear mandate of public policy."

Although outright violations of criminal and civil statutes invariably will constitute practices incompatible with clear mandates of public policy, that the outer limits of that phrase defies precise description has long been understood:

Public policy has been defined as that principal of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good. The term admits of no exact definition . Public policy is not concerned with minutiae, but with principles.

[Mehlman, supra, 153 N.J. at 187 (citing Schaffer v. Federal Trust Co., 132 N.J. Eq. 235, 240-41 (Ch. 1942)) (emphasis added).]

The Court has elaborated on the concept of "incompatibility" by observing that "[t]o 'violate' a law, a person must commit '[a]n infraction or breach of the law,' but a person's conduct may be found 'incompatible' with a law based solely on a showing that the conduct is 'irreconcilable' with that law." Maimone v. City of Atlantic City, 188 N.J. 221, 231 (2006) (internal citations omitted). Against this framework, we assess the proffered policy incompatibilities.

Plaintiff offers an extended listing of statutory, regulatory, and procedural statements to establish the necessary "mandate of public policy." He cites to N.J.S.A. 27:1A-76 (explains the State's "maritime industry is a $50 billion industry supporting more than 300,000 New Jersey citizens" and the infrastructure required to support this industry is designated as New Jersey's Marine Transportation System); N.J.S.A. 12:7-70 (acknowledging the legislative finding that the existence of careless and reckless boating require penalties more similar to those imposed for motor vehicle violations);

N.J.S.A. 58:10-23.11a (observing the legislative finding that there is a delicate balance between New Jersey's lands and waterways which requires measures to protect this balance from the discharge of petroleum products and other hazardous substances); N.J.S.A. 13:8C-2 (noting the importance of land and waterway preservation and the need to create the Garden State Preservation Trust to fund the preservation of these resources); N.J.A.C. 7:7E-1.1(e) (establishing Coastal Zone Management rules and regulations regarding the development of coastal resources); the New Jersey State Police Boating Safety Manual (recognizing the need for safe boating); the Mission Statement of Marine Services Bureau of New Jersey State Police (declaring the mission of the Marine Services Bureau is "to protect and serve the boating community and to preserve the natural resources of this state by utilizing general law enforcement concepts, training and education, and enforcing all laws fairly and without bias"; N.J.S.A. 11A:1-2 (incorporating a legislative finding that the State must provide public officials with the personnel to execute their duties properly); N.J.S.A. 40A:9-22.2 (observing that local government should provide standards for their officers and employees to follow in faithfully performing their public duties); N.J.S.A. 34:13A-14 (declaring that because law enforcement officers and firefighters perform such unique and essential duties, that these public servants must have an alternate and binding procedure for the expeditious resolution of disputes); and the Senate Law and Public Safety Committee Statement, Senate No. 1587-L. 2001, c. 69 (Comment to N.J.S.A. 39:4-50) (commenting that "[d]runk drivers constitute a serious threat to the public safety.").

Plaintiff focuses on Maimone in support of its argument that he has set forth sufficient policy underpinnings to withstand a motion to dismiss on the pleadings. In Maimone, a police detective assigned to prostitution investigations was told to cease all pending investigations into the promotion of prostitution and to only conduct narcotics investigations. Maimone, supra, 188 N.J. at 226. The detective then complained about the department's failure to enforce certain State prostitution laws. Days after the complaints, the detective was transferred from his detective position to patrol officer allegedly because he had "attended the wedding of a daughter of a suspected organized crime figure." Id. at 228. In Maimone, the Court ultimately concluded that the departmental decision to cease prosecuting prostitution cases was "incompatible with a clear mandate of public policy concerning the public health, safety, or welfare."

Similarly, in McCullough v. Atlantic City, 137 F. Supp. 2d 557 (D.N.J. 2001), also relied on by plaintiff, the district court did not specifically address the narrow issue here but concluded that plaintiffs' disclosures of possible OSHA violations together with adverse employment actions met plaintiffs' burden under CEPA.

A more relevant case and analysis is found in our decision in Schechter v. N.J. Dep't of Law and Public Safety, 327 N.J. Super. 428 (App. Div. 2000), where we rejected the CEPA claim of an employee who claimed retaliation for the Division of Gaming's failure to place certain names on the list of individuals who were barred from casinos. We affirmed the dismissal of plaintiff's complaint concluding that plaintiff failed to establish the "policy prong" of N.J.S.A. 34:19-3(c)(3). Judge Skillman, the author of Schechter, speaking for the Court in Maimone, distinguished the two cases:

Under plaintiff's version of his superior's statements and actions, the facts of this case are significantly different from Schechter v. N.J. Dep't of Law & Pub. Safety, 327 N.J. Super. 428, 743 (App. Div. 2000), which involved a CEPA claim by a Division of Gaming Enforcement supervisor who alleged that he was temporarily suspended and then demoted in retaliation for his objections to the Division's failure to act upon his recommendations for placement of names on a list of persons who are barred from casinos. Id. at 431, 743 A.2d 872. Schechter did not allege that the Division had terminated all investigations of potential casino exclusion cases; he only alleged that the Division had failed to follow his recommendations regarding the filing of two petitions for exclusion of specific persons alleged to be involved in criminal activity and that the Division had made a policy decision "to assign a lower degree of priority to exclusion cases than in prior years[.]" Id. at 434, 743 A.2d 872. The Appellate Division concluded that such a policy decision could not be found to "violate any 'law, rule or regulation' or 'clear mandate of public policy,' as required to maintain a cause of action under CEPA." Ibid.

In contrast, plaintiff's claim is not simply that defendants decided to assign a "lower degree of priority" to investigations of violations of the Code provision prohibiting promotion of prostitution and restricting the location of sexually-oriented businesses, but rather that they made a policy decision to terminate all enforcement of these criminal laws. Plaintiff was not told, and had no other reason to believe, that this alleged policy decision was due to budgetary constraints or an administrative determination that there was a need to assign additional officers to the investigation of more serious crimes. Therefore, a trier of fact could find that plaintiff had an objectively reasonable belief that defendants made a policy decision that was incompatible with a clear mandate of public policy concerning the public health, safety and welfare.

[Maimone, supra, 188 N.J. at 234-35.]

Klein v. University of Medicine and Dentistry of New Jersey, 377 N.J. Super. 28,40 (App. Div. 2005) is also instructive. In Klein, plaintiff, a radiologist, based his CEPA claim on a disagreement with internal decisions made by the hospital. He alleged retaliation resulting in "revoc[ation of] his clinical responsibilities for several days and requiring observation of his clinical responsibilities when restored after he refused to be assigned to the Radiology Department based upon his 'reasonable belief that such anesthesia assignments were a threat to patients' safety' in violation of N.J.S.A. 34:19-3c." Id. at 33. We held that plaintiff had "not sufficiently identified any illegal, unethical, or public policy violation sufficient to satisfy the first prong of a prima facie case of a CEPA claim under the language or intent of N.J.S.A. 34:19-3c." Id. at 45.

As here, plaintiff in Klein complained repeatedly about internal management decisions. "For years while plaintiff was department chair, he complained about 'patient safety' concerns involving resuscitation and anesthesia due to the cramped working space in the Radiology Department and lack of essential equipment and staffing." Id. at 34 (emphasis added). Klein also complained about manpower issues: "Plaintiff's reply brief states he 'had voiced for years his concerns about the ever increasing case load for Anesthesia in Radiology. His fellow anesthesiologists complained aggressively of equipment breakdown, lack of back up, and little to no technical support.'" Id. at 42.

Unlike plaintiff here, Klein identified and alleged specific violations of Hospital Licensing Standards. We concluded that "merely couching complaints in terms of a broad-brush allegation of a threat to patient's safety is insufficient to establish the first prong of a CEPA claim." Id. at 42. We also commented that the "whistle-blower legislation is not intended to shield a constant complainer who simply disagrees with the manner in which the hospital is operating one of its medical departments, provided the operation is in accordance with lawful and ethical mandates." Ibid.; see also Young v. Schering Corp., 275 N.J. Super. 221, 237 (App. Div. 1994) (observing that "[a]lthough CEPA protects a broader category of employee behavior than the common law, the Act nevertheless was not intended to provide a remedy for wrongful discharge for employees who simply disagree with an employer's decision, where that decision is entirely lawful").

The same limitations we identified in Klein apply with equal force here. Plaintiff's manpower complaints are not supported by the litany of broad and generalized legislative, rule and procedural statements. More significantly, plaintiff challenges basic management decisions involving overtime and allocation of resources; decisions that are both lawful and within the province of management of a large organization such as the State Police. In sum, they "are essentially disagreements with the internal procedures and priorities of the [State Police], potentially tied to some extent to funding issues, resource allocations and state budgetary constraints, and are not an objectively reasonable belief that public [safety] mandates are being violated." Klein, supra, 377 N.J. Super. at 44. As we concluded in Klein, "CEPA was enacted to prevent retaliatory action by an employer against an employee who 'blows the whistle on illegal or unethical activity committed by their employers not to assuage egos or settle internal disputes at the workplace as in the present case." Id. at 45 (citing Estate of Roach v. TRW, Inc., 164 N.J. 598, 609-10 (2000)).

We rejected these management-prerogative challenges in Klein, and we do here. Judge Mathesius correctly dismissed plaintiff's complaint. Since we affirm the dismissal of the complaint, we need not address the other issues raised on this appeal.

Affirmed.

The complaint does not identify any of the other relevant persons by first name.

Plaintiff cites N.J.A.C. 7E(e). We assume he was alluding to N.J.A.C. 7:7E-1.1(e).

New Jersey State Police Boating Safety Manual 1 (2008),

http://www.state.nj.us/njsp/info/pdf/marine/021606-boating-safety-manual.pdf

http://www.state.nj.us/njsp/divorg/homelandsec/msb.html

(continued)

(continued)

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A-3129-07T1

December 8, 2008