NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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
A-4206-19 2 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
A-4206-19 3 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
A-4206-19 4 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.
A-4206-19 5 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
A-4206-19 6 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,
A-4206-19 7 199 (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
A-4206-19 8 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
A-4206-19 9 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.
A-4206-19 10 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.
A-4206-19 11 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
A-4206-19 12 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
A-4206-19 13 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
A-4206-19 14 "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.
A-4206-19 15 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.
A-4206-19 16