JEFFREY SCOZZAFAVA v. SOMERSET COUNTY PROSECUTOR'S OFFICE

NOT FOR PUBLICATION WITHOUT THE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-2228-16T1

JEFFREY SCOZZAFAVA,

              Plaintiff-Appellant,

v.

SOMERSET COUNTY PROSECUTOR'S
OFFICE,

          Defendant-Respondent.
__________________________________

              Argued April 23, 2018 – Decided May 14, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No. L-
              0536-16.

              David Zatuchni argued the cause for appellant
              (Zatuchni & Associates, LLC, attorneys; David
              Zatuchni, on the brief).

              Charles Z. Schalk argued the cause for
              respondent    (Savo,    Schalk,    Gillespie,
              O'Grodnick & Fisher, PA, attorneys; Charles
              Z. Schalk, of counsel and on the brief).

PER CURIAM

        Plaintiff, Detective Jeffrey Scozzafava, appeals from the

trial court's order dismissing his complaint against his employer,
the     Somerset    County   Prosecutor's     Office     (Office),    alleging

violations of the Conscientious Employee Protection Act (CEPA),


N.J.S.A. 34:19-1 to -14.       Plaintiff alleged his transfer from the

Office's forensic unit – to which he was assigned upon his hiring

in 2007 after retiring from the New Jersey State Police (NJSP) as

a forensic instructor and trainer in the Crime Scene Investigation

Unit — to the Office's fugitive squad was "in retaliation for his

whistle-blowing conduct in lodging complaints regarding deficient

and improper evidence collection and casework by the [f]orensic

[u]nit" and his supervisor.       He argues the court erred in finding

his transfer was not an adverse employment action under CEPA.                 We

agree and reverse.

       The court, relying on facts outside the pleadings – contained

in    plaintiff's    certification   submitted      in   opposition    to   the

Office's motion — converted the Office's motion to dismiss pursuant

to Rule 4:6-2(e) to a motion for summary judgment.               We therefore

abide by our familiar standard of review that mandates summary

judgment be granted if the court determines "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).     We consider "whether the competent evidential materials

presented, when viewed in the light most favorable to the non-

moving    party"    in   consideration   of   the   applicable    evidentiary

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standard, "are sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving

party."   Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540

(1995).   We review the trial court's decision in these matters de

novo, and afford the trial court ruling no special deference.

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 
224 N.J.
 189, 199 (2016).

     The trial court observed plaintiff's complaint set forth two

facts – his transfer and the change of his office car from a Dodge

Durango to a Chevy Impala1 — which were insufficient to sustain

his CEPA claim. The court found plaintiff maintained "his position

and rank, with full pay and full benefits," reflecting "a lateral

transfer rather than an adverse employment action"; the transfer

arguably improved plaintiff's working hours; and "his physical

arrangements were unchanged."    The court ruled plaintiff "failed

to substantiate his claim regarding damage to his [professional]

reputation," opining, "[c]onsiderable questions of fact and law

exist as to whether such a proffer is even possible under these

circumstances."    Finally, the court rejected plaintiff's argument

that the transfer deprived him of overtime wages because such




1
  Plaintiff conceded at oral argument that the change of vehicles
was "not determinative."

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remuneration was "unreliable and speculative and cannot be relied

upon to determine the wholesale loss in compensation."

     To successfully prove a claim under CEPA, a plaintiff must

demonstrate:

           (1) that he . . . reasonably believed that his
           . . . employer's conduct was violating either
           a law or a rule or regulation promulgated
           pursuant to law; (2) that he . . . performed
           whistle-blowing    activity    described    in
           N.J.S.A. 34:19-3[(a), (c)(1), or (c)(2)]; (3)
           an adverse employment action was taken against
           him . . .; and (4) a causal connection exists
           between the whistle-blowing activity and the
           adverse employment action.

           [Mosley v. Femina Fashions, Inc., 356 N.J.
           Super. 118, 127 (App. Div. 2002).]

     The "retaliatory action" proscribed by CEPA, 
N.J.S.A. 34:19-

3, not only includes a whistle-blowing employee's "discharge,

suspension or demotion," but also "other adverse employment action

taken   against    an   employee   in       the   terms   and   conditions    of

employment," 
N.J.S.A. 34:19-2(e).             We have interpreted "[t]erms

and conditions of employment" as "those matters which are the

essence of the employment relationship," including the "length of

the workday; increase or decrease of salaries, hours, and fringe

benefits; physical arrangements and facilities; and promotional

procedures."      Beasley v. Passaic Cty., 
377 N.J. Super. 585, 608

(App. Div. 2005) (citations omitted) (quoting Twp. of W. Windsor

v. Pub. Emp't Rel. Comm'n, 
78 N.J. 98, 110 (1978)).                  Thus, an

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employer's actions other than discharge, suspension or demotion

"may nonetheless be the equivalent of an adverse action." Nardello

v. Twp. of Voorhees, 
377 N.J. Super. 428, 433-34 (App. Div. 2005)

(quoting Cokus v. Bristol Myers Squibb Co., 
362 N.J. Super. 366,

378 (Law Div. 2002), aff'd o.b., 
362 N.J. Super. 245 (App. Div.

2003)).

     In Nardello, 
377 N.J. Super. at 434-35, we applied our Supreme

Court's discussion — albeit in dicta — of this issue in reversing

the dismissal of a police lieutenant's CEPA claim, although he was

not discharged, suspended or demoted, and suffered no reduction

in pay:

          "Retaliation," as defined by CEPA, need not
          be a single discrete action. Indeed, "adverse
          employment action taken against an employee
          in the terms and conditions of employment" can
          include . . . 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) (quoting 
N.J.S.A. 34:19-
          2(e)).]

     The complaint and plaintiff's certification presented much

more evidence than that found by the trial court.     We determine

the evidence, viewed under the proper lens, sufficiently presents

an adverse employment action, the sole issue to be determined

here.

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       Plaintiff's extensive training and experience gained during

his twelve-year assignment as a forensic detective with the New

Jersey State Police Crime Scene Investigation Unit led to his

employment with the Office's forensic unit, which he joined with

the alleged understanding that he would be able to utilize his

acquired forensic skills post-retirement from the NJSP.             He worked

in the Office's forensic unit from August 2007 until his transfer

in February 2015,2 during which time he continued his involvement

in a number of forensic professional associations, to which he

"devoted thousands of hours" as a student and instructor in the

field.

       While we are cognizant that "not every employment action that

makes    an    employee    unhappy   constitutes   'an   actionable   adverse

action,'" Nardello, 
377 N.J. Super. at 434 (quoting Cokus, 
362 N.J. Super. at 378), plaintiff's transfer, viewed in the light

most favorable to him, was objectively "demeaning," see id. at

435-36.       Although still a detective in the fugitive squad, he is

unable to continue to use and develop his expertise in the forensic

field — in which he has developed a proven reputation.                     That

forensic      detectives    are   not   like   other   police   detectives    is

buttressed by plaintiff's extensive training; his qualification



2
    Other portions of the record set the transfer date as March 2015.

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as an expert in various courts; and by his averment that no other

detective was transferred from the Office's forensic unit during

his nine-year tenure.      That the transfer to a less desirable post

was demeaning is also buttressed by plaintiff's contention that,

when asked for an explanation for the transfer, his lieutenant

said, "everybody does time in the penalty box."      We also note this

transfer – in effect now for over three years — is not temporary.

     Contrary to the Office's contention that plaintiff has not

suffered a loss in pay, and the trial court's finding that overtime

is too nebulous to consider in determining such a loss, plaintiff's

proffer of his overtime earnings for the three years prior to his

transfer, and for the year of his transfer, show a diminution in

the amount of overtime compensation amounting to thousands of

dollars – a benefit that was steadily available to plaintiff as a

crime scene investigator.3     Our Supreme Court, in Maimone v. City

of Atlantic City, 
188 N.J. 221, 235-36 (2006), held "any reduction

in an employee's compensation" is an adverse employment action.

In Maimone, the plaintiff-officer's transfer from detective to

patrol duties "resulted in a 3% reduction in his compensation" and

"[i]n   addition,   [his     testimony]   that   detectives   have    an



3
 We also note plaintiff alleges a loss of "comp time," but contends
that proof of same would have to be gleaned from internal Office
compensation documents.

                                    7                          A-2228-16T1
opportunity to earn substantially more overtime than officers

assigned to patrol duty" were part of the proofs that resulted in

the   Court's    conclusion    that       "this   alleged   reduction    in

compensation and loss of other benefits as a result of plaintiff's

transfer from his detective position to patrol duty could support

a finding that he suffered an 'adverse employment action.'"             Id.

at 236-37 (emphasis added).

      We previously recognized the Court's emphasis in Green that

CEPA's purpose

          "is to protect and encourage employees to
          report   illegal   or   unethical    workplace
          activities and to discourage public and
          private sector employers from engaging in such
          conduct. Consistent with that purpose, CEPA
          must be considered 'remedial' legislation and
          therefore should be construed liberally to
          effectuate its important social goal."

          [Nardello, 
377 N.J. Super. at 435 (quoting
          Green, 
177 N.J. at 448).]

Mindful of that tenet, we perceive sufficient facts, when viewed

in the proper light, to prove an adverse employment action.              We

are constrained to reverse the dismissal of plaintiff's action and

remand this matter for further proceedings.

      Reversed and remanded.




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