MICHAEL TRIVERS v. CITY OF ATLANTIC CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3041-11T3

MICHAEL TRIVERS,

Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY,

Defendant-Respondent.

____________________________________

August 30, 2013

Submitted January 30, 2013 - Decided

Before Judges Grall, Simonelli and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket

No. L-606-10.

The Douglass Law Firm, attorneys for appellant (Michelle J. Douglass, on the briefs).

Ruderman & Glickman, P.C., attorneys for respondent (Steven S. Glickman, of counsel; Vincent M. Avery, on the brief).

PER CURIAM

Plaintiff Michael Trivers appeals from a summary judgment dismissing his complaint alleging violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14, and the New Jersey Civil Rights Act ("CRA"), N.J.S.A. 10:6-1 to -2. We affirm.

The facts are set forth at length in the trial judge's twenty-page opinion. We summarize here only those facts necessary to give context to the discussion. Plaintiff is an Atlantic City police officer. Following several years in the motorcycle unit of the traffic division, he received a requested transfer to the crash investigation unit in 2007. In accordance with the collective bargaining agreement, plaintiff received an additional three percent salary differential for his assignment in this investigative unit.

Following his investigation in January 2009 of a minor

one-car accident in a parking garage, which his superiors came to believe was poorly done, plaintiff was transferred out of the traffic division and into the patrol unit in February 2009. As a result, plaintiff ceased receiving the three percent pay differential paid to crash investigators. Although he now contends that he should have been afforded a hearing before being transferred out of the crash investigation unit, he did not request a hearing at the time of his transfer.

In addition to transferring him out of the crash investigation unit, plaintiff's superiors also instituted an internal affairs investigation into his alleged neglect of duty in connection with his investigation of the accident. He was thereafter ordered to submit a new report of the accident, amending its conclusion. Plaintiff refused to do so. He claims he refused because he believed that to create a new report as if the original never existed was contrary to proper procedure and possibly a violation of the law.

Shortly after his transfer into the patrol unit, a sergeant in the detective bureau approached plaintiff and asked him to submit a request to transfer out of that unit and into the detective unit. Detectives were also contractually entitled to the three percent pay differential plaintiff lost when he was transferred to the patrol unit. Plaintiff made the request, but it was never granted. Plaintiff alleged that the failure to act on his request was retaliatory.

The officer conducting the internal affairs investigation of plaintiff originally concluded that the neglect of duty charge could not be proved. That officer, however, was overruled by his superior, and the charge was sustained. Plaintiff was thereafter served in September 2009 with a Notice of Pending Disciplinary Action alleging neglect of duty in connection with his investigation of the one-car accident. The notice also advised that, in the event plaintiff wished to waive his right to a hearing, the "disciplinary action" would be his transfer from the traffic unit, which had happened seven months earlier. Plaintiff advised that he would not waive his right to a hearing, and he was thereafter informed that the department intended to seek a three-day suspension.

Plaintiff never served a suspension. He went out on stress leave shortly after being served with the Notice of Pending Disciplinary Action. At the disciplinary hearing in May 2010, plaintiff's counsel moved to dismiss the charge asserting that plaintiff's transfer out of the crash investigation unit was disciplinary in nature. Plaintiff contended that his 2009 transfer constituted discipline for the same alleged neglect of duty charge which was the subject of the hearing.

The hearing officer agreed. While acknowledging the right of the chief of police to transfer officers based on departmental needs, she concluded that plaintiff's transfer in February 2009 was "disciplinary in nature." Because plaintiff had already been disciplined for his alleged neglect of duty, by his transfer out of the crash investigation unit in February 2009, the hearing officer concluded that plaintiff could not be disciplined again for the same offense and dismissed the charge.

The hearing officer issued her decision in August 2010. The following month plaintiff was returned to his former position as a crash investigator in the traffic division. In October 2010, the traffic unit was disbanded because of budget problems. When the unit was reconstituted the following August, plaintiff was reinstated as a crash investigator and again began to be paid the three percent salary differential associated with that position.

Plaintiff filed a two-count complaint in February 2010, alleging that defendant violated CEPA by retaliating against him for his refusal to change his accident report and the CRA by denying him a hearing prior to his February 2009 transfer to the patrol division. The trial judge granted summary judgment to defendant on both claims.

Plaintiff alleged eight specific acts of retaliation following his refusal to change his report: (1) the department initiated an unwarranted internal affairs investigation against him; (2) he was denied participation in a "crash II investigation training program" which had been approved prior

to his whistle-blowing activity; (3) he was denied a promotion to the detective unit which would have resulted in a three percent increase in pay; (4) he was constantly scrutinized by

a superior who returned many of plaintiff's reports with unwarranted comments that they were prepared improperly;

(5) when he was returned to the traffic division in September 2010 he was improperly denied a three percent raise until August 2011; (6) disciplinary charges (a three-day suspension) were brought against him for his refusal to complete a new accident report; (7) while out on stress leave, he was harassed by department officers who showed up at his home at 4 a.m. demanding the return of his service revolver; and (8) he was denied the opportunity to work overtime.

Viewing the evidence in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the judge found that plaintiff had established the first two elements of a CEPA action, namely, that he reasonably believed that the department's creation of a new accident report violated a state statute requiring the report to be preserved in original form, and that he performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3 by refusing to create a new report and advising the internal affairs investigator of his reasons for refusing. See Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (setting forth the four elements of a CEPA action).

The judge also found, however, that plaintiff had failed to establish the third element, that he suffered an adverse employment action. The judge found that the only employment actions of the eight plaintiff listed that could be said to have affected the terms and conditions of his employment were the denial of his transfer to the detective bureau and the denial of his three percent pay differential from September 2010 to August 2011.

Reasoning that transfers from unit to unit, regardless of the potential for the three percent pay differential, are at the sole discretion of the department, the judge concluded that the failure to transfer plaintiff to the detective bureau could not constitute an adverse employment action. The judge noted that plaintiff was eventually reinstated to his position as a crash investigator for which he received the three percent salary payment. His failure to receive the three percent increment upon his transfer back to the crash investigation unit was not specific to him but affected all officers in the unit equally. The judge determined that plaintiff's failure to "get the job he wanted when he desired it is not actionable under CEPA."

Regarding the CRA claim, the judge determined that plaintiff was not entitled to a hearing prior to his transfer to the patrol division. As plaintiff conceded that officers could be transferred between and among divisions at the sole discretion of the department, the judge determined that officers had no right to notice and hearing for such transfers, even if done for disciplinary purposes. He concluded that plaintiff was not deprived of any property interest by his transfer, and that his disciplinary hearing eight months later and eventual reinstatement to his position as a crash investigator satisfied any process due.

We review summary judgment using the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). As the parties agreed on the material facts for purposes of the motion, our task is limited to determining whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

In order to succeed on a CEPA claim, an employee must demonstrate:

(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation 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[]; (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.

[Dzwonar, supra, 177 N.J. at 462.]

We agree with the trial judge that, viewing the facts most favorably to plaintiff, he satisfied the first two elements of his prima facie proof. We also agree that plaintiff did not satisfy the requirement of showing an adverse employment action.

CEPA prohibits an employer from taking retaliatory action against an employee because of whistle-blowing activity. N.J.S.A. 34:19-3. "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. 34:19-2e. "Adverse employment action" is broadly defined in light of the remedial purposes of the statute and may include such things as "making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations." Donelson v. DuPont Chambers Works, 206 N.J. 243, 257-58 (2011). It need not take the form of a single discrete action, but can be "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003).

Of course, "'not everything that makes an employee unhappy is an actionable adverse action.'" Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002) (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)), aff'd o.b., 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003). "[I]n order to be actionable, an allegedly retaliatory act must be 'sufficiently severe or pervasive to have altered plaintiff's conditions of employment in an important and material manner.'" El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005) (quoting Cokus, supra, 362 N.J. Super. at 246. "Terms and conditions of employment 'refer[] to those matters which are the essence of the employment relationship'" such as "length of the workday,

. . . increase or decrease of salaries, hours, and fringe benefits, . . . physical arrangements and facilities,

. . . and promotional procedures." Beasley v. Passaic Cnty., 377 N.J. Super. 585, 608 (App. Div. 2005) (alteration in original) (citation omitted).

As plaintiff was transferred to the patrol unit before his whistle-blowing activity, the transfer cannot be considered an adverse employment action under CEPA. Likewise, the internal affairs investigation cannot suffice as it was initiated prior to any such activity. Further, "[r]etaliatory action does not encompass action taken to effectuate the discharge, suspension or demotion[;] . . . [t]herefore, an investigation of an employee is not normally considered retaliation." Beasley, supra, 377 N.J. Super. at 606 (citations and internal quotation marks omitted). For the same reason, the disciplinary charges brought against plaintiff, which were dismissed by the hearing officer, do not qualify.

Following plaintiff's transfer out of the crash investigation unit, crash training was no longer relevant to his assignment and thus denying plaintiff that training cannot be considered adverse action. Demanding that plaintiff relinquish his service weapon during his stress leave was obviously prudent (and there is no indication in the record that this action was anything other than standard procedure in this circumstance), and thus cannot qualify as retaliation.

Filing a CEPA complaint does not insulate an employee from ordinary supervision. See Higgins v. Pascack Valley Hosp., 158 N.J. 404, 424 (1999) (holding CEPA does not insulate an employee from "discharge or other disciplinary action for reasons unrelated to the complaint"). Plaintiff's complaints of being scrutinized more closely by a supervisor and receiving negative feedback on reports do not rise to the level of retaliation. Plaintiff's particular complaints are more appropriately characterized as the sort that result in "a bruised ego or injured pride on the part of the employee," which are not actionable. Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 46 (App. Div.), certif. denied, 185 N.J. 39 (2005).

While plaintiff claims that the department's failure to act on his request to be transferred to the detective unit is the denial of a promotion, we agree with the trial judge that it cannot be characterized as other than an inter-departmental transfer. Moreover, plaintiff requested that transfer only weeks after he was transferred to the patrol unit as a disciplinary sanction for what the department viewed as a shoddy investigation and while he was under investigation by internal affairs. In light of that timing, plaintiff's transfer request was actually a request for relief from a disciplinary sanction, one that plaintiff himself concedes was not retaliatory. Under these circumstances, the department's failure to honor defendant's request to transfer out of the patrol unit and into the detective unit cannot be considered retaliatory as a matter of law. If the sanction could not be considered retaliatory, we fail to see how the department's failure to act on plaintiff's request to be relieved of the discipline could constitute retaliation under CEPA.

Because plaintiff's claims that he lost the opportunity for a three percent pay differential and overtime are premised entirely on his failure to receive a transfer to the detective unit, those claims can likewise not qualify as acts of retaliation under the statute. Accordingly, the adverse actions plaintiff alleged are insufficient to constitute retaliation under CEPA, as they either cannot be considered adverse actions under the statute or were not so severe as to alter the conditions of his employment, whether viewed individually, or collectively. See El-Sioufi, supra, 382 N.J. Super. at 176.

We also agree with the trial judge that plaintiff could not establish a claim under the CRA, but for a different reason than the one he gave. Although we entertain serious doubts as to whether the Legislature intended to jeopardize the balance it struck in the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, between the rights of public employees and the government s legitimate interest in promoting efficiency and integrity in public service, by making alleged violations of the Civil Service laws actionable under the CRA, we need not reach that issue to dispose of this appeal.1

The CRA provides in pertinent part:

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

[N.J.S.A. 10:6-2c.]

By its express terms, the CRA thus applies only "to the deprivation of any substantive due process or equal protection rights." N.J.S.A. 10:6-2. The right to notice and a hearing plaintiff claims he was denied prior to his transfer to the patrol division are procedural, not substantive, due process rights. Accordingly, the CRA does not apply here.

We do not express any opinion regarding the trial judge's conclusions as to whether a hearing was necessary prior to plaintiff's transfer to the patrol division or whether the lack of hearing was cured by the disciplinary hearing held several months later. We note only that plaintiff never sought a hearing upon his transfer to the patrol division nor did he appeal the hearing officer's decision in order to protest the loss of pay claimed in this action. Having failed to avail himself of his Civil Service remedies, plaintiff cannot look to the Law Division for relief. See Ferraro v. City of Long Branch, 314 N.J. Super. 268, 287 (App. Div.) (noting that breach of administrative regulations does not give rise to private cause of action and plaintiff's failure to avail himself of Civil Service remedies precluded necessity of judicial action), certif. denied, 157 N.J. 541 (1998).

Affirmed.

1 See Chief Justice Roberts' analogous discussion in Engquist v. Or. Dep't of Agric., 553 U.S. 591, 594, 128 S. Ct. 2146, 2148, 170 L. Ed. 2d 975, 981 (2008), addressing application of the equal protection clause to plaintiff's claims regarding her public employment. "[R]atifying a class-of-one theory of equal protection in the context of public employment," the Chief Justice wrote, "would impermissibly 'constitutionalize the employee grievance.'" Id. at 609, 128 S. Ct. at 2157, 170 L. Ed. 2d at 990 (quoting Connick v. Myers, 461 U.S. 138, 154, 103 S. Ct. 1684, 1694, 75 L. Ed. 2d 708, 725 (1983)). "Public employees typically have a variety of protections from just the sort of personnel actions about which Engquist complains, but the Equal Protection Clause is not one of them." Ibid.