EDGARDO ORTIZ v. UNION COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0644-08T10644-08T1

EDGARDO ORTIZ,

Plaintiff-Appellant,

v.

UNION COUNTY and

UNION COUNTY PROSECUTOR'S OFFICE,

Defendants-Respondents.

__________________________________

 

Submitted October 6, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4437-06.

Sarah Fern Meil, attorney for appellant.

Bauch Zucker Hatfield, LLC, attorneys for respondents (Kathryn V. Hatfield, of counsel and on the brief).

PER CURIAM

Plaintiff Edgardo Ortiz appeals from the August 29, 2008 order that granted summary judgment to defendants Union County, and the Union County Prosecutor's Office (UCPO). We affirm.

On December 20, 2006, plaintiff filed a complaint against defendants alleging that they had violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to promote him because of his race, ancestry, and/or national origin; subjecting him to a hostile work environment; and retaliating against him for having filed a discrimination charge against one of his superior officers. The complaint also alleged that defendants violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by retaliating against him for his refusal to acquiesce in certain UCPO policies. On October 17, 2007, plaintiff filed an amended complaint adding an additional count alleging disability discrimination in violation of the LAD. On July 17, 2008, after completion of discovery, defendants filed a motion for summary judgment. On August 29, 2008, the trial court entered an order supported by a written opinion granting the motion.

Plaintiff is Hispanic. Plaintiff joined the UCPO in 1988; and retired from the organization in March 2007. During his employment, the UCPO never disciplined plaintiff. Indeed, plaintiff received letters of commendation and appreciation, and was nominated for the UCPO's Distinguished Service Award in 1998.

Initially, the UCPO assigned plaintiff to its Trial Unit as an investigator to assist in the preparation of cases for trial. Plaintiff next served as an undercover detective in the UCPO's Narcotics Strike Force Unit from January 1989 to an unspecified date in 1994. For two of those years, the UCPO assigned plaintiff to work with the Federal Drug Enforcement Agency in Newark.

In June 1995, plaintiff sustained a significant injury to his right knee. Because of the injury, the UCPO placed plaintiff on light duty for approximately two years evaluating cases. Plaintiff filed a workers' compensation claim petition against Union County and received a permanent partial total disability award for the injury.

The UCPO next assigned plaintiff as a detective to the Violent Crimes or Homicide Unit. Plaintiff served in that unit until December 2007, performing the duties of a crime scene technician. From December 1997 until June 2006, plaintiff served in the Administrative Services Unit (ASU), which consisted of four sections: Records and Evidence; Computer Services; Fleet Services; and Forensics. The ASU had seven or eight officers assigned to it at that time. Plaintiff began his assignment in the Records and Evidence section.

From 1997 through the end of January 2000, Sergeant Becky Weston served as plaintiff's immediate supervisor. In February 2000, plaintiff wrote two letters to the UCPO, which were followed by a formal internal complaint against Weston, alleging that she had treated him unfairly and in a demeaning manner because he was a Hispanic male. The UCPO ordered an independent investigation. On August 2, 2000, then Prosecutor Thomas Manahan reported that the investigator found no gender or national-origin animus by Weston.

In January 2000, while serving in the ASU, Prosecutor Manahan promoted plaintiff to the position of sergeant, a position plaintiff held until retirement. In July 2002, Theodore J. Romankow became the Union County Prosecutor, and upon assuming his position, he appointed Robert Buccino to the position of Chief of Detectives.

From July 2002 to January 2003, plaintiff served as the ASU's Acting Commander. He again served as that unit's Acting Commander from January 2004 to January 2005. Although the individuals who commanded the ASU immediately before plaintiff and from January 2003 to January 2004 held the position of lieutenant, plaintiff was not promoted to that position while commanding the unit.

While serving in the ASU, plaintiff complained of difficulty in lifting heavy objects because of the injury to his right knee. In response, the UCPO provided plaintiff with a lifting platform to assist him in performing his duties. Plaintiff never requested any other accommodations because of his knee injury.

In late 2002, plaintiff confronted Joseph Koury, a detective in ASU's Forensic section concerning Koury's tardiness and misrepresentations of hours worked. After reporting the matter to Buccino, Buccino directed that plaintiff issue a reprimand to Koury. Although plaintiff complied, he never filed formal disciplinary charges against Koury. The UCPO later promoted Koury to the position of sergeant and transferred him from the ASU to the Forensic Services Unit, a former section of the ASU.

On August 26, 2002, soon after his appointment to Chief of Detectives, Buccino issued a letter stating the qualifications for promotion from the position of sergeant to that of lieutenant. The criteria required a minimum of three years in the position of sergeant, and included a point system for other qualifications, for example, commendations, education level, supervisory service and diversity of experience. On September 6, 2002, Buccino issued an amendment to the qualifications, eliminating the three years' minimum requirement in the position of sergeant. As such, all sergeants became eligible to interview for promotions. Because plaintiff never received Buccino's amendment eliminating the minimum in-level service requirement, plaintiff did not apply for promotion in 2002.

In late 2002 or early 2003, Romankow promoted Sergeants Robert Jones and Kevin Foley to lieutenants. Both officers had held the position of sergeant longer than plaintiff.

While commanding the ASU, plaintiff retained the responsibilities for records, evidence, computer services, petty cash, equipment and supplies. In a January 2003 letter, plaintiff complained of being overworked, stressed, and lacking support staff. The letter stated in part:

I am practically a one-man unit responsible for a workload that requires two or three individuals. This is a task that is physically impossible for one person to do. At this point, this situation is affecting my physical and mental health.

For the past 2 years I have been reporting my situation to my superiors but nothing has been done to alleviate my situation . . . . This past year, I have been diagnosed with having an irritated esophagus caused by acid reflux. One of the causes of acid reflux is stress. The working conditions that I have been experiencing this past year and a half [have] been causing my stress. I am under the care of [doctors] who are treating me for this condition.

Sometime in 2003, while Lieutenant Jones commanded the ASU, Buccino eliminated the Fleet Services section from the unit. On October 8, 2003, prior to leaving the ASU, Jones recommended to Buccino and then Captain Gregory Clay that plaintiff be promoted to lieutenant.

In 2004, plaintiff again served as Acting ASU Commander. During mid-2004, Buccino eliminated the Forensics section from the ASU. Either shortly before or after this reorganization, plaintiff had written to Buccino requesting that he be considered for promotion to lieutenant and listed his qualifications. However, Buccino recommended Sergeants Lester Swick and Tracy Diaz for promotion; and on December 18, 2004, Romankow promoted Swick and Diaz to lieutenants.

In January 2005, plaintiff no longer served as ASU's Acting Commander. On July 13, 2005, plaintiff sent a letter to Buccino, again requesting a promotion to lieutenant. Buccino responded that plaintiff's request would be considered in the near future within the ordinary course of the promotion process. Either immediately before or after this exchange, Buccino removed Computer Services from the ASU. At this time, plaintiff supervised the Records and Evidence section with one member of support staff. In November 2005, Prosecutor Romankow promoted Sergeants Carl Riley and Abdel Anderson to lieutenant, not plaintiff.

Plaintiff claims his qualifications were superior to those of the four officers promoted to lieutenant in 2004 and 2005, and that he was not promoted because he was Hispanic. Although none of the four officers was Hispanic, the UCPO did promote Roy Diaz, an Hispanic sergeant, to lieutenant on April 1, 2003. No other promotions to lieutenant were made by the UCPO before plaintiff's retirement in March 2007.

Romankow was the sole decision-maker regarding promotions. In making promotions, he used an informal process that included personal communications with staff and recommendations from Buccino and other superior offices, as well as from outside agencies. According to Romankow, all applicants who applied for promotion were considered. However, Romankow did not consider plaintiff qualified for promotion because plaintiff only supervised a single subordinate, and had not performed investigative work while in the ASU.

On an unspecified date, Buccino penned a note to himself enumerating several facts about plaintiff, such as his injury, his promotion date, his complaint against Weston, commendations, and some job assignments. Although undated, the note does not reference any events regarding plaintiff post-2002, when Buccino became Chief of Detectives. The back of the note lists a number of events that had occurred between 1994 and 2004, some of which pertained to persons other than plaintiff. According to Buccino, he probably composed the note in 2006 or 2007, in preparation for this litigation.

Plaintiff disputes Romankow's motivation for not considering him for promotion after 2002, asserting that even though plaintiff's supervisory qualification was minimal and did not warrant him serving as lieutenant, he could have been laterally transferred to another unit, where a lieutenant position was needed. According to plaintiff, three of the four newly-appointed lieutenants were transferred to other units following their promotions.

Since 1997, when first transferred to the ASU, plaintiff never requested a lateral transfer out of the unit. However, on May 26, 2006, plaintiff requested a transfer to the Trial Unit. In making the request, plaintiff stated that he sought "an opportunity to once again do field work and enhance my investigative skills so that I may become a more suitable candidate for future promotions." The UCPO granted plaintiff's request. On transfer to the Trial Unit, plaintiff was assigned as a detective to work with two assistant prosecutors, and reported to a sergeant who, although had more tenure in the unit than plaintiff, had less tenure than plaintiff overall.

In December 2006, plaintiff filed his complaint in the Law Division. In March 2007, plaintiff accepted an early retirement incentive buyout.

On July 17, 2008, defendants filed a motion for summary judgment. On August 29, 2008, the court entered an order, supported by a written opinion, granting the motion. In dismissing plaintiff's LAD claims for failure to promote based on his race and disability, the court concluded that plaintiff had failed to present sufficient evidence to withstand summary judgment under either the mixed motives theory, Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S. Ct. 1775, 1804, 104 L. Ed. 2d 268, 304-05 (1994) (O'Connor J., concurring), or the more common multi-step, pretext burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973). In so ruling, the court stated: "Accordingly, defendants' proffered legitimate and non-discriminatory reasons have not been discredited, regardless of whether they are construed in terms of a plaintiff's race-based, disability-based, or retaliation claims."

As to plaintiff's hostile work environment claim, the court determined that, assuming plaintiff was given more tasks to perform than one person could possibly perform while in the ASU, plaintiff failed to show that the work environment "would not have occurred but for his protected characteristics, whether race based or on account of the complaint he filed against Mrs. Weston." Simply stated, the court concluded that "[p]laintiff fail[ed] to carry his burden of proving that the hostile work environment was caused by his membership in a protected class."

Lastly, as to plaintiff's CEPA claims, the court determined that the claims were time barred, having been filed more than one year after the last act complained of. N.J.S.A. 34:19-5.

On appeal, plaintiff argues:

POINT I.

THE MOTION JUDGE ERRED BY FAILING TO CREDIT THE UCPO'S DISCRIMINATORY DIFFERENCES IN TREATMENT TOWARD LATINO AND NON-LATINO PROMOTIONAL CANDIDATES AS EVIDENCE OF PRETEXT.

POINT II.

THE MOTION JUDGE ERRED BY FAILING TO CREDIT THE LACK OF CONSISTENCY AND CREDIBILITY OF THE EMPLOYER'S PROFFERED "LEGITIMATE REASON" AS EVIDENCE OF PRETEXT.

A. A REASONABLE FACTFINDER COULD CONCLUDE THAT MR. BUCCINO'S PURPORTED REASON FOR DECIDING NOT TO RECOMMEND [PLAINTIFF] FOR PROMOTION IS UNWORTHY OF CREDENCE.

B. A REASONABLE FACTFINDER COULD CONCLUDE THAT MR. ROMANKOW'S PURPORTED REASON FOR DECIDING NOT TO RECOMMEND [PLAINTIFF] FOR PROMOTION IS UNWORTHY OF CREDENCE.

POINT III.

SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED BECAUSE THERE ARE NUMEROUS MATERIAL FACTS AND INFERENCES IN DISPUTE.

A. WHEN MR. BUCCINO LEARNED OF [PLAINTIFF'S] COMPLAINT OF DISCRIMINATION AGAINST MS. WESTON.

B. WHEN MR. BUCCINO LEARNED OF [PLAINTIFF'S] KNEE INJURY.

C. WHEN MR. BUCCINO CREATED THE ACTION SLIP AND, BY INFERENCE, WHETHER HE CONSIDERED [PLAINTIFF'S] COMPLAINT OF RACE DISCRIMINATION AND DISABILITY IN MAKING PROMOTIONAL RECOMMENDATIONS.

D. WHETHER MR. BUCCINO ASKED [PLAINTIFF] TO TRANSFER TO NARTCOTICS.

E. MR. BUCCINO'S MOTIVATION FOR ASSIGNING MR. JONES TO ASU AND FOR REMOVING FLEET SERVICES, COMPUTER SERVICES AND THE FORENSIC UNIT FROM ASU.

F. WHETHER THE QUALIFICATIONS OF THE OFFICERS PROMOTED TO LIEUTENANT WERE, IN FACT, SUPERIOR TO [PLAINTIFF'S] QUALIFICATIONS.

G. WHETHER OTHER LATINO OFFICERS SUFFERED SIMILAR DISCRIMINATION IN PROMOTIONAL DECISIONS MADE BY THE UCPO.

H. MR. ROMANKOW'S MOTIVATION FOR NOT PROMOTING [PLAINTIFF].

POINT IV.

THE MOTION JUDGE ERRED IN DISMISSING PLAINTIFF'S HOSTILE WORKING ENVIRONMENT CLAIM BECAUSE [PLAINTIFF] PUT FORTH FACTS THAT, IF PROVEN, CONSTITUTE A HOSTILE WORKING ENVIRONMENT UNDER THE LAD.

POINT V.

NONE OF PLAINTIFF'S LAD CLAIMS ARE TIME-BARRED.

POINT VI.

THE MOTION JUDGE ERRED BY GRANTING SUMMARY JUDGMENT ON PLAINTIFF'S CEPA CLAIM.

A. PLAINTIFF MADE OUT A PRIMA FACIE CASE OF RETALIATION IN VIOLATION OF CEPA.

B. PLAINTIFF'S CEPA CLAIM IS NOT TIME-BARRED.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). "Appellate courts employ the same standard [that governs trial courts] when reviewing summary judgment orders." Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

We have considered plaintiff's arguments challenging the grant of summary judgment dismissing his LAD claims in light of the record and applicable law. We reject the arguments and affirm substantially for the reasons expressed by the trial court in its written decision of August 29, 2008.

We next address plaintiff's argument challenging the trial court's dismissal of his CEPA claim on the grounds that it was time barred. Plaintiff contends that he is entitled to pursue that claim under the continuing tort doctrine. Because we affirm the grant of summary judgment dismissing the CEPA claim for a different reason than expressed by the trial court, we need not address the correctness of the trial court's decision.

Appeals are taken from judgments, not from oral or written decisions. Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974). An order of judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968); see also El-Siloufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005) (explaining that "a correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal").

"CEPA is 'remedial legislation, designed to expand employee protection.'" Notte v. Merchs. Mut. Ins. Co., 386 N.J. Super. 623, 627 (App. Div. 2006) (quoting Crusco v. Oakland Care Ctr., Inc., 305 N.J. Super. 605, 610 (App. Div. 1997). 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 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, plaintiff confronted Koury concerning Koury's misrepresenting the hours worked, and his tardiness. Plaintiff also reported Koury's actions to Buccino and issued Koury a reprimand. Plaintiff's actions in both reporting Koury and issuing him a reprimand occurred during plaintiff's tenure as Acting ASU Commander, that is, while plaintiff was in a managerial or supervisory position over Koury. Disciplining a subordinate under these circumstances does not qualify as whistle blowing under CEPA. Rendering discipline is a responsibility of a supervisor and a part of a supervisor's job function. Otherwise, all supervisors who reprimand or discipline subordinates would qualify as CEPA claimants. That was not the Legislature's intent.

 
Affirmed.

Although Tracy Diaz has a Spanish-sounding surname, she is not Hispanic.

(continued)

(continued)

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A-0644-08T1

April 7, 2010