CALVIN M. ANDERSON v. CITY OF EAST ORANGE

NOT FOR PUBLICATION WITHOUT THE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-4206-19

CALVIN M. ANDERSON,

          Plaintiff-Appellant,

v.

CITY OF EAST ORANGE,
EAST ORANGE POLICE
DEPARTMENT, ANTHONY
COOK, SHEILAH COLEY
and PHYLLIS BINDI,

     Defendants-Respondents.
__________________________

                   Submitted December 1, 2021 – Decided March 15, 2022

                   Before Judges Gilson, Gooden Brown, and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-7691-17.

                   McOmber McOmber & Luber, PC, attorneys for
                   appellant (R. Armen McOmber and Austin B. Tobin, on
                   the briefs).

                   Tracey S. Cosby, attorney for respondents City of East
                   Orange, East Orange Police Department, Phyllis Bindi
                   and Sheilah Coley.
            Weiner Law Group LLP, attorneys for respondent
            Anthony Cook (Sean M. Pena, of counsel and on the
            brief; Rachel E. Smith, on the brief).

PER CURIAM

      When he was employed as a lieutenant by defendant East Orange Police

Department (EOPD), plaintiff filed the initial complaint in this lawsuit, alleging

defendants the City of East Orange, EOPD, and Anthony Cook, who was his

supervisor, had violated the Conscientious Employee Protection Act (CEPA),

 N.J.S.A. 34:19-1 to -14.       He based his case on Cook's "productivity"

improvement system, plaintiff's complaints about it being an illegal arrest quota

system and refusal to implement it, and Cook's subsequent allegedly retaliatory

actions. After he was promoted to captain, plaintiff filed an amended complaint,

alleging an additional CEPA violation based on the promotion process and

naming as additional defendants Sheilah Coley and Phyllis Bindi due to their

alleged actions in that process.

      Plaintiff appeals orders granting defendants' summary-judgment motions.

We affirm those orders as to the allegations contained in the amended complaint

regarding the promotion process and Coley's and Bindi's alleged actions in that

process. We reverse the aspect of the orders granting summary judgment as to

the allegations set forth in the original complaint based on Cook's purported

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actions because a genuine issue of material fact exists as to whether plaintiff

suffered an "adverse employment action" as a result of retaliatory actions

allegedly taken by Cook. In sum, we affirm in part as to the new allegations in

the amended complaint, reverse in part as to the allegations in the initial

complaint, and remand for further proceedings consistent with this opinion.

                                       I.

      We discern the facts from the summary judgment record, viewing them in

the light most favorable to plaintiff, the party who opposed summary judgment.

See Richter v. Oakland Bd. of Educ.,  246 N.J. 507, 515 (2021) (citing Brill v.

Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995)).

      Plaintiff has been employed by defendant EOPD for over twenty years.

He was employed as a lieutenant when he initiated this lawsuit and was

promoted to captain about five months later. At the time of the events at issue,

defendant Anthony Cook was plaintiff's supervisor; defendant Sheilah Coley

was EOPD's Public Safety Director; and defendant Phyllis Bindi was EOPD's

Chief of Police.

      In his one-count complaint, plaintiff claimed defendants Cook, the City of

East Orange, and EOPD had violated CEPA. According to the allegations set

forth in the complaint, plaintiff believed the officer "productivity" improvement


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system Cook had ordered plaintiff and others to implement was really an illegal

arrest quota system in violation of  N.J.S.A. 40A:14-181.2; plaintiff had

complained about it and had refused to implement it; because of plaintiff's

complaints and refusal to implement the quota system, Cook had "subjected

[p]laintiff to severe and pervasive instances of retaliation," including: ordering

a neglect-of-duty investigation in connection with plaintiff's alleged failure to

complete an accident-reconstruction report, submitting a complaint to internal

affairs about that incident even though the investigating officer had concluded

plaintiff was correct in not submitting the report, stating to others plaintiff would

never be promoted to captain, requiring plaintiff to increase "productivity" in

terms of other officers' stops and arrests in a crime zone, issuing plaintiff a

written "warning notice" for not increasing "productivity," threatening to file

neglect-of-duty charges against plaintiff for not filing a line-of-duty incident

report regarding another officer even though it was the responsibility of a

sergeant to submit the report, instructing another captain to investigate plaintiff

for failing to report to a lineup for a July Fourth celebration, threatening to issue

plaintiff a written warning for that purported failure, and, in an attempt to make

him look incompetent, berating plaintiff in front of the city's mayor and Coley




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for allegedly neglecting his duty and wasting taxpayer money by not seeing

shooting suspects walk past EOPD's video cameras.

        Plaintiff subsequently filed an amended complaint, naming Coley and

Bindi as defendants and making an additional retaliation allegation: five months

after he filed the complaint, Bindi told him EOPD was "skipping" over him to

promote other lieutenants to captain, but after plaintiff complained to Bindi and

an East Orange councilperson, he was promoted to captain the next day.

        Defendants EOPD, City of East Orange, Bindi, Coley, and Cook moved

for summary judgment. Defendants argued plaintiff was mistaken in thinking

EOPD was implementing an illegal quota system. Instead, EOPD intended to

use information regarding the number of arrests and citations as one, but not the

sole, criteria in evaluating an officer's performance, which, they argued, was

permissible under  N.J.S.A. 40A:14-181.2.          Cook asserted plaintiff had

"misinterpreted" his push for high performance goals and "did not like having

to increase his workload and do what he [was] tasked with." Defendants also

contended plaintiff had not suffered any adverse employment action because he

had been promoted to captain and, thus, could not establish a prima facie CEPA

case.




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      In opposition, plaintiff argued that after complaining about the quota

system, he suffered baseless investigations, was issued written warnings, was

constantly threatened with discipline, and was deliberately made to look like an

incompetent police officer. He also claimed as a form of retaliation he had been

"consistently assigned" to the midnight shift since June 2018, thereby preventing

him from working "traffic details," which caused him to lose $10,000 to $12,000

in compensation.

      After hearing oral argument, the motion judge granted defendants'

motions and placed his decision on the record. As to the first prong of CEPA,

the judge found plaintiff reasonably had believed EOPD was implementing a

quota system and that the "alleged unlawful conduct" had a "substantial nexus

to [N.J.S.A. 40A]:14-181.2." As to the third prong, the motion judge determined

the retaliatory acts alleged by plaintiff were not "sufficiently severe or

pervasive" and had not "alter[ed] [plaintiff's] employment position . . . in an

important and material manner." The judge found, for example, plaintiff had

not demonstrated a decrease in salary or status or a material alteration in his

work environment. Noting plaintiff had been promoted to captain, the motion

judge concluded the alleged retaliatory conduct did not "meet a standard that a

reasonable juror could find that the terms of these acts are retaliatory in a


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material sense of . . . his employment." The judge did not address the other

prongs of CEPA. The motion judge subsequently issued two orders granting

defendants' summary-judgment motions.

      On appeal, plaintiff asserts the motion judge erred in granting summary

judgment because a genuine issue of material fact exists as to whether the

alleged adverse employment actions taken against him combine to make up a

pattern of retaliatory conduct in violation of CEPA, citing Green v. Jersey City

Bd. of Educ.,  177 N.J 434, 448 (2003). In response, defendants argue the motion

judge properly granted their motions because plaintiff had failed to establish the

required elements of a CEPA claim.

                                       II.

      We review a grant of summary judgment de novo, using "the same

standard that governs the motion judge's" decision. RSI Bank v. Providence

Mut. Fire Ins. Co.,  234 N.J. 459, 472 (2018). "That standard mandates that

summary judgment be granted '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.'" Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,  224 N.J. 189,


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199 (2016) (quoting R. 4:46-2(c)). "An issue of material 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.'"

Grande v. St. Clare's Health Sys.,  230 N.J. 1, 24 (2017) (quoting Bhagat v.

Bhagat,  217 N.J. 22, 38 (2014)). In our review, we owe "no special deference"

to the trial court's legal analysis. RSI Bank,  234 N.J. at 472.

      The Legislature designed CEPA 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."            Abbamont v.

Piscataway Twp. Bd. of Educ.,  138 N.J. 405, 431 (1994); see also Allen v. Cape

May Cnty.,  246 N.J. 275, 289 (2021).            CEPA's purpose is "to protect

whistleblowers from retaliation by employers." Lippman v. Ethicon, Inc.,  222 N.J. 362, 378 (2015).     Consistent with that purpose, CEPA "is considered

remedial legislation entitled to liberal construction." Ibid.

      CEPA prohibits an employer from taking "any retaliatory action against

an employee because the employee . . . [d]isclose[d] . . . to a supervisor . . . an

activity, policy or practice of the employer . . . that the employee reasonably

believe[d] . . . [was] in violation of a law, or a rule or regulation promulgated


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pursuant to law,"  N.J.S.A. 34:19-3(a)(1), or "[o]bject[ed] to, or refuse[d] to

participate in any activity, policy or practice which the employee reasonably

believe[d] . . . [was] in violation of a law, or a rule or regulation promulgated

pursuant to law,"  N.J.S.A. 34:19-3(c)(1). See also Allen,  246 N.J. at 290; Turner

v. Associated Humane Soc'ys, Inc.,  396 N.J. Super. 582, 598 (App. Div. 2007).

      To establish a prima facie claim under CEPA, a plaintiff 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(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.

            [Dzwonar v. McDevitt,  177 N.J. 451, 462 (2003)].

See also Allen,  246 N.J. at 290. When a plaintiff establishes a prima facie claim

under CEPA, the burden of persuasion shifts to the defendant employer "to rebut

the   presumption    of   discrimination   by   articulating   some   legitimate

nondiscriminatory reason for the adverse employment action." Kolb v Burns,

 320 N.J. Super. 467, 478 (App. Div. 1999); see also Allen,  246 N.J. at 290-91.

If the employer meets that burden, the plaintiff then must prove the employer's


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asserted legitimate reasons were pretextual and not the real reason for the

employer's discriminatory acts. Allen,  246 N.J. at 291.

      We focus on the third prong – whether defendants took an adverse

employment action against plaintiff – because the motion judge granted

defendants' motions based on his finding that plaintiff had failed to establish

that prong.   In addition to "discharge, suspension, [and] demotion," CEPA

includes in its definition of "'[r]etaliatory action' . . . other adverse employment

action taken against an employee in the terms and conditions of employment."

See  N.J.S.A. 34:19-2(e). Thus, an employer's action that is less than a discharge,

suspension, or demotion may be an actionable retaliatory action under CEPA.

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

see also Mancini v. Twp. of Teaneck,  349 N.J. Super. 527, 564-65 (App. Div.

2002) (assignment to different or less desirable tasks may constitute adverse

employment action and establish prima facie case of retaliation), aff'd as

modified,  179 N.J. 425 (2004). Moreover, under CEPA, retaliation "need not

be a single discrete action." Green,  177 N.J. at 448. "[M]any 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" may constitute an adverse employment action under CEPA.


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Ibid.; see also Maimone v. City of Atl. City,  188 N.J. 221, 236 (2006); Nardello,

 377 N.J. Super. at 435; Beasley v. Passaic Cnty.,  377 N.J. Super. 585, 608-09

(App. Div. 2005).

      That an employment action makes an employee unhappy does not

automatically make it an adverse employment action under CEPA. Nardello,

 377 N.J. Super. at 434. "CEPA's purpose is to prevent retaliatory action against

whistle-blowers, . . . not to 'assuage egos or settle internal disputes at the

workplace.'" Beasley,  377 N.J. Super. at 607 (quoting Klein v. Univ. of Med.

& Dentistry of N.J.,  377 N.J. Super. 28, 45 (App. Div. 2005)). A "bruised ego

or injured pride on the part of the employee" is insufficient to establish

retaliatory action. Klein,  377 N.J. Super. at 46. "[T]o 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 v. Bristol-Myers Squibb Co.,  362 N.J. Super. 245, 246 (App. Div. 2003)).

A "rescinded employer action that makes plaintiff completely whole and

remedies a prior decision cannot constitute an adverse employment action ."

Beasley,  377 N.J. Super. at 607.




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      The additional retaliatory act plaintiff alleged in the amended complaint

– Bindi told him EOPD was "skipping" over him to promote other lieutenants to

captain – does not constitute an adverse employment action under CEPA

because that action was rescinded and plaintiff was made completely whole from

that action when he was promoted to captain the next day. See Beasley,  377 N.J. Super. at 607. Accordingly, we affirm the aspect of the motion judge's

decision granting defendants' summary-judgment motions as to that allegation

of retaliation pleaded in the amended complaint and the related allegations

concerning Bindi and Coley.

      As to the claims based on Cook's retaliatory acts plaintiff alleged in his

initial complaint, we reverse summary judgment. The evidence as to those acts,

when viewed in a light most favorable to plaintiff, shows genuine issues of

material fact as to whether he suffered retaliatory action by defendants. A jury

could conclude that after plaintiff complained about Cook's new "productivity"

system being an illegal arrest quota system, Cook repeatedly took action

retaliating against plaintiff, including ordering investigations that resulted in no

charges against plaintiff, filing an internal affairs complaint against plaintiff

even though the investigating officer had concluded plaintiff had done nothing

wrong, threatening to file other charges against him, and denigrating him to


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others, including the mayor. Although those actions individually may not be

actionable, we are satisfied a jury could conclude those actions combine to

demonstrate a pattern of prohibited retaliatory conduct.

      Contrary to the motion judge's conclusion, viewed in a light most

favorable to plaintiff, a jury also could conclude plaintiff has demonstrated

economic loss, a decrease in status, or a material alteration in his work

environment. That he was promoted to captain five months after he filed the

complaint does not make him whole from or constitute a rescission of the other

alleged acts of retaliation.   Plaintiff asserted in his complaint he sustained

damages as a result of those alleged retaliatory acts. In his certification in

opposition to the summary-judgment motions, plaintiff testified "the constant

threats and blatant retaliation by [d]efendant EOPD, and specifically [d]efendant

Cook, [had had] a profound impact on [his] health and well-being and [had]

caus[ed him] constant emotional distress," including "anxiety, loss of sleep,

mental anguish, humiliation, and the like."      He certified he had suffered

"concrete economic damages" of approximately $10,000 to $12,000, contending

that beginning about two months after his promotion, he has been "consistently

assigned to the midnight shift," which caused him economic damages because

he was unable "to work traffic details that [he] would have had the opportunity


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to work had [he] remained in another shift." Plaintiff also certified that because

of the "ongoing denigration," he has been "subjected to disrespect and

insubordination by subordinate officers." Plaintiff may have a higher salary now

as a captain than he had as a lieutenant but that does not render meaningless the

combined impact of the alleged previous acts of retaliation. See Nardello,  377 N.J. Super. at 436 (reversing summary judgment, court found a plaintiff whose

pay was not reduced still had made out a prima facie case of a CEPA violation).

      We recognize "an investigation of an employee is not normally considered

retaliation" and that only a "strong showing" that an investigation was

illegitimate may allow "an affirmative CEPA claim." Beasley,  377 N.J. Super.

at 606-07. Here, plaintiff has shown evidence from which a jury might conclude

that after his whistle-blowing activity EOPD and Cook pursued false accusations

and unnecessary investigations against him.

      Defendant's reliance on Keelan v. Bell Communications Research,  289 N.J. Super. 531, 539 (App. Div. 1996), and Hancock v. Borough of Oaklyn,  347 N.J. Super. 350, 360 (App. Div. 2002), in their effort to limit what can constitute

a retaliatory act under CEPA, is misplaced. Both cases were decided before our

Supreme Court's decision in Green,  177 N.J. 434, and the other cases that make

clear retaliatory action under CEPA is not, as defendants assert, limited to


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"completed personnel actions that have an effect on either compensation or job

rank."

         We turn briefly to the motion judge's decision regarding CEPA's first

prong: whether plaintiff "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." Dzwonar,  177 N.J. at 462. Defendants did not

cross-appeal but nevertheless argue the motion judge erred in finding plaintiff

reasonably had believed EOPD was implementing a quota system and that the

"alleged unlawful conduct" had a "substantial nexus to [N.J.S.A. 40A]:14-

181.2." We see no basis to reverse that aspect of the decision.

         To satisfy CEPA's first prong, a plaintiff does not need to establish his or

her employer or other employee "actually violated" a law but instead must

demonstrate his or her own reasonable belief that a law was violated. Ibid.; see

also Allen,  246 N.J. at 290. As the motion judge correctly found, plaintiff met

that standard and therefore the issue should be decided by a jury.

         In addition to their arguments about prongs one and three of CEPA, the

parties argue about issues not decided by the motion judge. We do not know if

those issues were not decided by the trial judge because he did not reach them

given his conclusion regarding prong three or because they were not raised.


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Either way, they are not properly before us. See Murphy v. Luongo,  338 N.J.

Super. 260, 268 (App. Div. 2001) (noting an issue not raised or decided in the

trial court below is not properly before an appellate court).

      Affirmed in part; reversed in part; and remanded for proceedings

consistent with this opinion. We do not retain jurisdiction.




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