MICHAEL PORTER v. NEW JERSEY STATE POLICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4003-06T14003-06T1

MICHAEL PORTER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE,

STATE OF NEW JERSEY, CAPTAIN

ERNEST VOLKMAN (RET.), LIEUTENANT

KENNETH WONDRACK, CAPTAIN THOMAS

DREHER, JR., LIEUTENANT JOHN

MAZUR, AND LIEUTENANT EDWARD

RODGERS, INDIVIDUALLY AND IN

THEIR OFFICIAL CAPACITY,

Defendants-Respondents.

 

Submitted September 25, 2008 - Decided

 
Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3615-02.

Thomas R. Ashley, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Vincent J. Rizzo, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Michael Porter is a retired sergeant of the New Jersey State Police. He appeals from a summary judgment dismissing his multiple claims against the State Police and various individuals, in which he alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and other common law causes of action. We affirm.

Plaintiff joined the New Jersey State Police in 1979. In 1993, he was promoted to squad sergeant. In 1998, he was promoted to staff sergeant and remained at that position until his retirement in August 2004.

In September 1996, plaintiff met with Sgt. McNamara, Trooper Chaytrak, Trooper Manufo and Sgt. Dages to discuss Dages's alleged manipulation of overtime pay. Plaintiff attended the meeting because he claimed that Dages was falsifying his time reports and wanted to discuss this with McNamara, who administered the overtime. Prior to the meeting, plaintiff approached Dages about the allegations, and Dages said he wanted to work it out. At the meeting, however, plaintiff accused Dages of misappropriating his time on the weekly reports. Dages told plaintiff: "I'll change my weekly, you can suck my dick."

As a result of Dages's statement, plaintiff filed an internal complaint with the Internal Affairs Bureau (IAB). Dages filed a complaint against plaintiff for harassing him about the overtime.

Captain Earnest Volkmann, the IAB bureau chief, recommended that the complaints be sent to mediation. Accordingly, on November 12, 1996, a mediation was held with plaintiff, Dages, Volkmann, and Sgt. Rodgers, the acting station commander. Volkmann was the mediator. The goal of the mediation was to have both parties drop their complaints to avoid discipline or an IAB investigation.

Volkmann testified that during the mediation, Dages admitted to making the "suck my dick" comment to plaintiff. Volkmann considered the comment to be inappropriate, but not to warrant discipline. He further testified that during the meeting, Dages attempted to apologize to plaintiff, but plaintiff would not accept the apology. Although plaintiff insisted that an IAB investigation was warranted, the parties nevertheless agreed that the issues had been resolved and that no IAB investigation would be necessary. Following the mediation, no disciplinary action was taken as to plaintiff or Dages, and there were no further incidents between them.

Approximately ten months after the incident with Dages, plaintiff was transferred from the Bloomfield station to the Holmdel station. In October 1997, Lt. John Mazur became the station commander in Holmdel. Plaintiff remained in the Holmdel station for five years; he was on sick leave for one and one-half years of that time.

While stationed at Holmdel, plaintiff was required to be evaluated twice a year. Mazur first evaluated him for the period of November 1, 1997, to April 30, 1998, recommending him for promotion. Mazur testified, however, that so long as everyone passed the physical or did not sign-off on the physical, and there were no pending disciplinary actions against the officer, everyone was recommended for promotion.

Mazur's second evaluation of plaintiff was for the period May 1, 1998, to October 31, 1998. The evaluation was positive, but Mazur did not recommend plaintiff for promotion because plaintiff failed his yearly physical examination.

On September 17, 1998, at the request of the troop commander, Mazur prepared a "Promotional Ranking of Qualified Personnel," a list ranking sergeants. Mazur listed plaintiff first because he had the most time as sergeant and because he had "excellent supervisory and motivational skills." From the list, plaintiff was promoted to staff sergeant, while three other sergeants were promoted to sergeant first class.

In the next evaluation, covering the period from November 1, 1998, to April 30, 1999, Mazur recommended plaintiff for promotion. In the evaluation of the period from May 1, 1999, to October 31, 1999, Mazur made no recommendation because plaintiff did not take the physical examination.

Plaintiff contacted Mazur at home to challenge the evaluation he received for the period of May 1, 1999, to October 31, 1999, but he did not formally challenge the evaluation. That particular evaluation included "criticisms" about plaintiff's abilities, but he was rated "competent," the highest rating on the evaluation form.

In the evaluation of the period from November 1, 1999, to April 30, 2000, Mazur again recommended plaintiff for promotion. In the next evaluation, of the period from May 1, 2000, to October 31, 2000, Mazur did not recommend plaintiff for promotion because he did not participate in the physical examination. From October, 15, 2002, through May 13, 2004, plaintiff took seven physical examinations, but he passed only one; he "signed-off" on (did not take) four exams; was a no-show on one; and failed one.

On a vacancy announcement dated March 24, 2000, listing officers eligible for promotion, plaintiff was listed number thirty of seventy-one. A September 26, 2001, list contained several vacancies for which plaintiff considered himself eligible, but he was not listed as eligible because he was on medical leave at the time.

Plaintiff made several requests to meet with Field Operations Major Cartwright to discuss promotion issues, but he never received a response. Captain Dreher told plaintiff that he could file a formal complaint, but he did not do so.

Plaintiff testified at his deposition that he was told in October 1996 by Captain Wondrack, the troop commander, that he should drop the claim against Dages because it could affect his career. Wondrack did not remember telling plaintiff that the complaint could hurt his chances of promotion. Plaintiff further testified that he believed that Dages, who was white, mistreated him because he was black. Plaintiff offered no evidence to support his belief.

In August 2002, plaintiff filed a complaint in the federal district court against the State Police and the State of New Jersey, alleging racial discrimination and retaliation. That complaint was apparently dismissed by the federal court, although the order of dismissal has not been provided in the appendix on appeal.

Plaintiff filed the state court lawsuit on July 23, 2002, alleging that defendants refused to promote him in retaliation for his complaint against Dages for misuse of overtime, and that defendants discriminated against him based on his race. Following years of discovery, the trial court dismissed plaintiff's complaint on summary judgment on February 16, 2007.

Against this factual and procedural history, we turn first to plaintiff's argument that the court erred in concluding that he did not timely file his CEPA claim.

The statute of limitations for a violation of a provision of CEPA is one year. N.J.S.A. 34:19-4. The trial court concluded that under a "strict" interpretation of the statute, the statute of limitations began to run in December 1996, when plaintiff mediated his dispute with Dages. Alternatively, the court found that if the statute of limitations began to run in May 2000, when plaintiff allegedly realized that Volkmann was retaliating against him, plaintiff would have been required to file his complaint by May 2001. Thus, because plaintiff did not file his state court complaint until July 23, 2002, the trial court found that it was filed out of time.

We agree that plaintiff's CEPA claim was barred by the statute of limitations. The incident leading to the alleged retaliatory treatment, his complaint against Dages, took place in 1996. Even assuming, as the trial court did, that the retaliatory conduct continued through May 2001, when plaintiff claims to have realized that Volkmann was retaliating against him, he did not file his complaint until July 2002, more than one year after that realization. As such, the trial court correctly found that plaintiff's CEPA claim was barred by the one-year statute of limitations.

That said, even if we were to conclude that plaintiff's CEPA claim was timely filed based on an ongoing course of conduct by defendants, plaintiff has nevertheless failed to present a prima facie case of retaliation in that he is unable to demonstrate that he was not promoted as a result of his accusations against Dages.

CEPA is remedial legislation designed to expand employee protection. Notte v. Merchs. Mut. Ins. Co., 386 N.J. Super. 623, 627 (App. Div. 2006). N.J.S.A. 34:19-3 provides, in pertinent 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, with whom there is a business relationship, 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 a 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.

A CEPA "retaliatory action" is defined as "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). To establish a prima facie case of a CEPA retaliatory action by an employer, an employee must demonstrate: (1) the employee reasonably believes that the employer's conduct violated either a law or a rule or regulation promulgated pursuant to law; (2) the employee performed whistle-blowing activity described in CEPA; (3) the employer took adverse employment action against the employee; and (4) a causal connection exists between whistle-blowing activity and the adverse employment action. Blackburn v. United Parcel Services, Inc., 179 F.3d 81, 92 (3d Cir. 1999); Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999).

Here, the trial court found that plaintiff could not prove a prima facie case of retaliation. The court said:

no evidence other than the barest of inferences that can be gained that suggests that any of the defendants actually participated in any retaliation against him. There's no evidence of a causal connection between the 1996 mediation and his failure to be promoted.

. . . .

Taken at the worst, there was no indication of prejudice or racial animosity. They were two sergeants who disagreed about something, and there was a legitimate effort to mediate between them and what have you. But there is no connection.

Put simply, plaintiff has not presented any evidence, beyond speculation, that his failure to be promoted was based on his accusations against Dages. He is therefore unable to establish a prima facie case of retaliation based on a lack of causal connection between his actions and the alleged retaliatory conduct.

Further, plaintiff's complaint in this case does not constitute "whistle-blowing" activity. He merely complained of a co-employee's misuse of overtime, not of any "policy or practice of [his] employer." N.J.S.A. 34:19-3(a). He did not allege that defendants condoned Dages's actions, nor did he allege Dages's actions were representative of any illegal policy or practice of defendants. Consequently, the trial court properly granted summary judgment as to plaintiff's CEPA claim.

We turn next to plaintiff's LAD claim. First, we address whether that claim should have been dismissed based on CEPA's waiver of rights provision. That statute 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.]

Plaintiff claims that because the trial court barred his CEPA claim under the statute of limitations, the CEPA waiver of rights provision is not implicated. See Crusco v. Oakland Care Ctr., Inc., 305 N.J. Super. 605, 613 (App. Div. 1997) (when CEPA claim barred by statute of limitations, "no bar could attach in respect of any other available claims of wrongful discharge"); see also Notte, supra, 386 N.J. Super. at 627-28 (same). We agree with plaintiff that when a CEPA claim is dismissed solely on the basis of the statute of limitations, the waiver provision of CEPA is not applicable. Thus, to the extent the trial court dismissed the CEPA claim based on the statute of limitations, plaintiff's LAD claim would be entitled to reinstatement. Because, however, the trial court did not dismiss the CEPA claim solely on the statute of limitations, but also concluded that plaintiff failed to establish a prima facie case under CEPA, the waiver provision is applicable here and bars the LAD claim. All the same, even if we were to conclude that the waiver provision does not apply, plaintiff's LAD cause of action does not substantively survive summary judgment.

A retaliation claim under the LAD exists only when an employee asserts that he or she was retaliated against for asserting rights protected by the LAD. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). To prove a retaliation claim under the LAD, a plaintiff must prove: "(1) [the plaintiff] engaged in a protected activity known to the employer; (2) [the plaintiff] thereafter was subjected to [an] adverse employment decision by the employer; and (3) there was a causal link between the two." Id. at 445. If a plaintiff can establish those three elements, then the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the complained of action; then, the plaintiff must persuade the court that the proffered reason is mere pretext for retaliation. Ibid.

Here, for substantially the same reasons that plaintiff's CEPA claim substantively failed to survive summary judgment, so too does his LAD claim. Assuming that plaintiff's reporting of Dages's alleged misuse of timesheets was a protected activity, and further assuming that the failure to promote plaintiff was an adverse employment decision, plaintiff has nevertheless failed to establish a causal link between the two. Thus, substantively, his LAD claim based upon his reporting of Dages's activities fails to survive summary judgment.

Plaintiff's remaining LAD claim alleges racial discrimination. That claim is based on plaintiff's own personal beliefs, and not on any actions taken by defendants. Plaintiff has presented not one scintilla of evidence from which a jury could infer, without speculating, that he had been subjected to racial bias. In sum, plaintiff's LAD claim based upon racial discrimination is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

13

A-4003-06T1

October 28, 2008