GEORGE PETERS v. SILVERTON VOLUNTEER FIRE COMPANY NO. 1

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GEORGE PETERS,

Plaintiff-Appellant,

v.

SILVERTON VOLUNTEER FIRE COMPANY

NO. 1, TOMS RIVER BOARD OF FIRE

COMMISSIONERS DISTRICT 2, JOHN

ADDALIA, i/p/a JOHN ADALIA, KENNETH

TAYLOR, RYAN FITZGERALD, ANDY

JENSEN, GARY TATTERSALL, GUS BAXES

and KEVIN M. GEOGHEGAN, i/p/a KEVIN

M. GOEGHEGAN,

Defendants-Respondents.

________________________________________

November 3, 2016

Argued September 13, 2016 Decided

Before Judges Yannotti, Fasciale, and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3113-11.

Karri Lueddeke argued the cause for appellant (Lueddeke Law Firm, attorneys; Ms. Lueddeke, on the brief).

Eric L. Harrison argued the cause for respondents (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the brief; Steven K. Parness, on the brief).

PER CURIAM

Plaintiff George Peters was a volunteer firefighter in defendant Silverton Volunteer Fire Company in Toms River (Fire Company). He was expelled from the Fire Company following a membership vote of thirty-one to two. He appeals from two orders that granted summary judgment to defendants and dismissed with prejudice his claims of violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, violations of his due process rights, wrongful expulsion, and civil conspiracy. We affirm.

I.

Plaintiff joined the Fire Company in 1998. As a volunteer firefighter, plaintiff had the potential to receive pension benefits under the Emergency Services Volunteer Length of Service Award Program (LOSAP), N.J.S.A. 40A:14-183 to -193. Plaintiff also received a $16,500 life insurance policy, a $1500 death benefit payable to his spouse, tuition benefits at the Ocean County Community College, and, if he provided sufficient annual service, a $500 clothing allowance and $500 service payment.

LOSAP benefits are awarded annually if a member collects enough credits, which is generally based on hours of service and the types of activities engaged in, such as emergency calls or meetings of the members. Under the plan governing plaintiff's LOSAP benefits, he needed ten years of LOSAP credit to qualify for a pension. Plaintiff never achieved ten years of LOSAP credits.

For several years before 2011, plaintiff complained that he thought that the Fire Company was not correctly awarding LOSAP credits. He alleged that he was not always receiving the credits he deserved, that other firefighters were receiving too much credit, and that sometimes all firefighters were being given too much credit. For example, in 2010, plaintiff complained that the Fire Company had improperly enacted a twenty percent upward adjustment of LOSAP benefits to all members for their service credits in 2009.

In January 2011, plaintiff became vice president of the Fire Company. Plaintiff believed that his responsibilities included maintaining accurate member files and tracking membership time. Starting in May 2011, plaintiff began going through members' files. Plaintiff also asserts that at a June 2011 meeting he was asked to look into whether Fire Company members were residing in Toms River, as required by the Fire Company's bylaws.

As a result of examining members' files, plaintiff alleges that he learned of certain adverse information concerning certain members. For example, he reviewed the files of Gary Tattersall and learned that he was not a United States citizen, as required for membership in the Fire Company. Plaintiff confronted Tattersall about this information and plaintiff contends that Tattersall told him that he would "take [plaintiff] down."

While plaintiff was vice president of the Fire Company in 2011, he also had a dispute with Kevin Geoghegan regarding a sign-in sheet for a fire response. Plaintiff alleges that Geoghegan and his brother had been signed in, even though they were not present.

In June 2011, plaintiff contacted the Ocean County Prosecutor's Office and informed that office of his concerns regarding the alleged manipulation of LOSAP credits by the Fire Company. Plaintiff contends that he told senior members of the Fire Company that he intended to meet with the prosecutor concerning the manipulation of LOSAP credits. Specifically, plaintiff stated that he told the members of the executive committee that he was going to the prosecutor. Those members included defendants John Addalia and Gus Baxes as well as B.S. and M.C.1

On July 14, 2011, there was a meeting of the members of the Fire Company.2 Plaintiff was not present for that meeting, and he was not given any notice about the meeting. At the meeting, several members raised concerns that plaintiff was examining members' files and it was not clear what he was doing with the information he was collecting. Defendant Kenneth Taylor then made a motion to impeach plaintiff from his office as vice president. That motion was withdrawn, and Taylor made a new motion to expel plaintiff from the Fire Company. In a secret ballot, thirty-one members voted to expel plaintiff and two members voted to keep plaintiff in the Company. Defendant John Addalia, who was President of the Fire Company, abstained from the vote, and Chief B.S. voted in favor of retaining plaintiff.

President Addalia and Chief B.S. informed plaintiff of the vote. They explained the reasons for plaintiff's expulsion and attempted to provide him with an official letter of expulsion, which plaintiff refused to accept. Plaintiff did not appeal the expulsion decision to the Board of Fire Commissioners District 2 (BOFC). He also did not file a tort claims notice. Instead, on September 27, 2011, plaintiff filed an action in the Law Division against the Fire Company and the BOFC. Thereafter, he filed two amended complaints, adding seven individual defendants: John Addalia, Kenneth Taylor, Ryan Fitzgerald, Andy Jensen, Gary Tattersall, Gus Baxes, and Kevin Geoghegan. Plaintiff asserted four causes of action: (1) violations of CEPA, (2) violations of his constitutional due process rights, (3) wrongful expulsion, and (4) civil conspiracy. Plaintiff also sought various forms of equitable relief and asserted that defendants had engaged in the spoliation of evidence.

On March 27, 2013, defendants removed the action to the United States District Court for the District of New Jersey. On February 28, 2014, the federal court remanded the case to the Law Division by a consent order that provided, "[p]laintiff's federal claims against all defendants are hereby dismissed with prejudice."

The parties conducted discovery in the Law Division, and defendants then moved for summary judgment. On November 21, 2014, the trial court granted defendants' motion, except as to the claim for wrongful expulsion. Thereafter, the defendants moved for summary judgment on the wrongful expulsion claim, and on February 20, 2015, the trial court granted that motion. Plaintiff now appeals the two summary judgment orders dismissing all of his claims with prejudice.

II.

On appeal, plaintiff argues that the trial court erred in granting summary judgment to defendants. Thus, plaintiff argues that he established prima facie claims of (1) a violation of CEPA, (2) violations of his constitutional due process rights, (3) wrongful expulsion, and (4) civil conspiracy.

Our review of summary judgment orders is de novo, using the same standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We determine whether there are material facts in dispute and, if not, whether the facts, viewed in the light most favorable to the non-moving party, nonetheless entitle the moving party to judgment as a matter of law. Id. at 405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). After reviewing the record under this standard, we conclude that summary judgment was properly granted. We will analyze each of plaintiff's claims in turn.

A. CEPA

"CEPA prohibits an employer from taking adverse employment action against any 'employee' who exposes an employer's criminal, fraudulent, or corrupt activities." D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007) (citing N.J.S.A. 34:19-3). To establish a prima facie case of a CEPA violation, a plaintiff must present evidence that

(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(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.

[Lipman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).]

In reviewing CEPA claims, New Jersey courts apply the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J. 67, 90 (2012) (citing Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990)). Under that test,

the employee carries the initial burden of establishing a prima facie case of retaliation. The burden of production then shifts "to the employer to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. Once the employer does so, "the presumption of retaliatory discharge created by the prima facie case disappears and the burden shifts to the [employee]." At that point, the employee must convince the fact finder that the employer's reason was false "and that [retaliation] was the real reason." The ultimate burden of proof remains with the employee.

[Ibid. (alterations in original) (citations omitted).]

Defendants argue that plaintiff, as a volunteer firefighter, is not an employee within the meaning of CEPA. CEPA defines an "employee" as "any individual who performs services for or under the control and direction of an employer for wages or other remuneration." N.J.S.A. 34:19-2(b). To determine if someone qualifies as an employee, our Supreme Court has adopted the twelve-factor test set forth in Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998). D'Annunzio, supra, 192 N.J. at 122-23 (citing Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 242 (2006)).

The trial court assumed for purposes of the summary judgment motion that plaintiff was an employee within the meaning of CEPA. It is not clear from the record that plaintiff was an employee under CEPA, although plaintiff insists that is the case. Accordingly, we do not decide whether plaintiff was an employee within the meaning of CEPA. Instead, we affirm the summary judgment dismissal of the CEPA claim because plaintiff has not presented prima facie evidence of the fourth factor required to establish a CEPA violation. That is, plaintiff has not shown a causal connection between his whistle-blowing activity and the membership vote that resulted in his expulsion.

In CEPA claims causation is analyzed through three "guiding principles": (1) by "draw[ing] an inference from all of the circumstances relating to the decision," (2) by "evaluat[ing] the response of the employee's supervisor to the complaint," including looking at whether the employer ratified or ignored the complaint, and (3) by looking for an indirect causal link such as a supervisor who "might have sufficiently tainted the views of the actual decision maker to support relief." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 558-59 (2013).

Applying that three-part test, plaintiff has failed to present a prima facie case of causation. To expel a member of the Fire Company, the bylaws require that two-thirds of the voting members vote in favor of the expulsion. Thirty-three members voted on the motion to expel plaintiff. Consequently, at least twenty-two members needed to vote in favor of expulsion. The actual vote to expel plaintiff was thirty-one in favor and two opposed. Plaintiff has no evidence that twenty-two of the members who voted to expel him were aware of his complaints concerning the awarding of LOSAP benefits.

Plaintiff provided evidence that he reported to the executive committee of the Fire Company his complaints about LOSAP credits and his intention to meet with the prosecutor. Those individuals included John Addalia, B.S., M.C., and Gus Baxes. Plaintiff has, however, no evidence that any of those members adversely influenced the other members who voted to expel him.

To fill the gap in his proof of causation, plaintiff argues that we should adopt the "cat's paw" theory that has sometimes been applied by the federal courts. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). Under the "cat's paw" theory if a person, acting with unlawful purpose, improperly influences the ultimate decision makers, then there may be liability. Ibid. Our Supreme Court, however, has refused to adopt that theory and, instead, has "elect[ed] to rely on our existing case law for guidance of our courts." Battaglia, supra, 214 N.J. at 559 n.10. Thus, as already explained, we apply the causation analysis used by our Supreme Court in Battaglia. Id. at 558-59.

We also conclude that the summary judgment record established that plaintiff could not survive the burden-shifting analysis. The Fire Company presented a legitimate, non-retaliatory explanation for the expulsion of plaintiff; that is, he was going through members' files and collecting personal information. Following the close of discovery, plaintiff failed to produce evidence that the members who voted to expel him were not acting on that non-retaliatory basis or were adversely influenced by others who were not acting on that non-retaliatory basis, but were in fact retaliating against plaintiff because of his complaints concerning the LOSAP benefits.

B. Constitutional Due Process

In the consent order entered in the federal District Court plaintiff's federal claims of due process violations were dismissed with prejudice. Consequentially, plaintiff's remaining claims of substantive and procedural due process violations arise solely under the New Jersey Constitution and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2.

In evaluating substantive due process claims under New Jersey's Constitution, N.J. Const. art. I, 1, we use the "standards developed by the United States Supreme Court under the federal Constitution." Roman Check Cashing v. N.J. Dep't of Banking & Ins., 169 N.J. 105, 110 (2001) (quoting State Farm Mut. Auto. Ins. Co. v. State, 124 N.J. 32, 46-47 (1991)). To obtain relief under the substantive component of the due process clause for deprivation of property, plaintiff must establish (1) that he has a protected property interest under the due process protection of the constitution; and (2) that defendants' behavior in "depriving [him] of the interest in question was 'so egregious, and so outrageous, that it may fairly be said to shock the contemporary conscience.'" Desi's Pizza Inc. v. City of Wilkes-Barre, 321 F.3d 411, 427 (3d Cir. 2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S. Ct. 1708, 1717, 140 L. Ed. 2d 1043, 1058 (1998)).

Here, at best plaintiff was an at-will member of the Fire Company. Plaintiff had no contract with the Fire Company and the Company's bylaws did not create such a contractual relationship. Although the bylaws included procedures for accepting and expelling members, those provisions did not create a contractual right to membership. We have previously held that "an employee hired at will has no protected interest in his employment and may not prevail on a claim that his or her discharge constituted a violation of property rights." Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 355 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994) (citing Bd. of Regents v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972)). Plaintiff has no greater due process rights than an at-will employee. Thus, any interest he had in remaining in the Fire Company did not constitute a property right subject to due process protections.

In addition, the benefits afforded to plaintiff as a volunteer firefighter did not rise to the level of property protected by constitutional due process. The benefits that plaintiff received were relatively minimal. Moreover, all of those benefits were linked to his service as a volunteer firefighter and designed to provide limited coverage related to his service as a volunteer firefighter. Thus, when he was expelled, he had no independent property interests in any of those benefits.

Accordingly, we agree with the federal courts that have held that the benefits inherent in a volunteer firefighter's position do not constitute constitutionally protected property rights because they are "inextricably tied to the position." Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993) (analyzing benefits that did not include LOSAP benefits); Houston v. Twp. of Randolph, 934 F. Supp. 2d 711, 734 (D.N.J. 2013) (holding that the provision of LOSAP benefits, whether vested or unvested, do not "constitute property independent of [a] firefighter['s] position" and do not "entitle [a firefighter] to any additional due process consideration" beyond that of an at-will employee), aff'd, 559 F. App'x 139 (2014).

Further, defendants behavior in expelling plaintiff was not egregious and does not shock the conscience. The Fire Company s bylaws provided a procedure for expelling members, and plaintiff was expelled in accordance with that procedure by a vote of the Fire Company s members. In short, as plaintiff had no protected interest and defendants' actions did not shock the conscience, we conclude that there was no violation of substantive due process as a matter of law.

To establish a violation of procedural due process, plaintiff must show (1) that he has been deprived of a liberty or property interest by the State; and (2) that the procedures leading to that deprivation were constitutionally deficient. Doe v. Poritz, 142 N.J. 1, 99 (1995). Moreover, to demonstrate a property interest requiring a right to protection by procedural due process there must be a "legitimate claim of entitlement." Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 154-55 (1978) (quoting Bd. of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709, 33 L. Ed. 2d at 561 (1972)).

Here, plaintiff had no legitimate claim of entitlement that would invoke the protections of procedural due process. Plaintiff's LOSAP benefits had not vested, and plaintiff's other benefits, which were linked to membership, do not rise to the level of a legitimate entitlement. Further, although plaintiff was not given notice of the charges against him before the expulsion vote, defendants did provide him with reasons for his expulsion.

We recognize that our Supreme Court has generally been more willing to find state-created interests that invoke the protection of procedural due process than the United States Supreme Court. N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 208 (1983). Nevertheless, for the reasons already explained, plaintiff was not deprived of any such property interest. We therefore conclude as a matter of law that there was no violation of procedural due process.

C. Wrongful Expulsion

Wrongful expulsion from a voluntary organization can provide the basis for a tort claim. Higgins v. Am. Soc. of Clinical Pathologists, 51 N.J. 191, 200-01 (1968). The Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, however, requires a plaintiff to file a tort claim notice before bringing "[a] claim . . . for injury or damage to person or to property" against a public entity or its employees. N.J.S.A. 59:8-8. The TCA applies to volunteer emergency service providers, such as the Fire Company and BOFC. Pallister v. Spotswood First Aid Squad, 355 N.J. Super. 278, 281-82 (App. Div. 2002). The individual defendants are members of the Fire Company and acted in that capacity.

Plaintiff concedes that he never filed a tort claim notice. A plaintiff who fails to file notice of a tort claim within ninety days of the accrual of the cause of action is barred from recovering against a public entity or public employee. N.J.S.A. 59:8-8(a). Although an exception exists under N.J.S.A. 59:8-9 allowing a plaintiff to seek leave to file a late notice within one year "in the discretion of a judge," plaintiff never moved to file a claim notice under that exception.

Plaintiff argues that the TCA does not apply to a common law claim of wrongful expulsion, despite conceding that the claim sounds in tort. Plaintiff relies on our Supreme Court holdings that claims arising under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and "constitutional torts" are exempt from the notice requirements of the TCA. Fuchilla v. Layman, 109 N.J. 319, 337, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988); Greenway Dev. Co., Inc. v. Borough of Paramus, 163 N.J. 546, 553 (2000). See also Racanelli v. County of Passaic, 417 N.J. Super. 52, 58-59 (App. Div. 2010) (holding that the TCA notice requirements do not apply to CEPA claims).

As our Supreme Court noted in Velez v. City of Jersey City, 180 N.J. 284, 296 (2004), however, a basic common law tort that does not assert "statutory causes of action with specific procedural requirements and greater damage allowances than available at common law," and does not assert "any state or federal constitutional rights that would [supersede] statutory limitations," is not exempt from the TCA's notice requirements. Plaintiff's wrongful expulsion is such a basic common law tort. Thus, summary judgment in favor of defendants on the wrongful expulsion claim was properly granted.

D. Civil Conspiracy

A civil conspiracy is defined as

a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage.

[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union Cty. Bd. of Chosen Freeholders, supra, 268 N.J. Super. at 364).]

Accordingly, plaintiff must show that the defendants committed "an unlawful act or a wrong against him that constitutes a tort entitling him to a recovery." G.D. v. Kenny, 205 N.J. 275, 312 (2011). We have already explained that here plaintiff failed to establish the commission of any such wrongful act. Thus, summary judgment in favor of defendants on the civil conspiracy claim was properly granted.

Affirmed.

1 To protect the privacy interests of non-parties we refer to them by their initials.

2 At points in plaintiff's complaint and papers he refers to this meeting as having taken place on July 11, 2011. The record indicates that it took place on July 14, 2011.