NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1436-23
CHAD ROSSY,
Plaintiff-Appellant,
v.
MAYOR AND COUNCIL OF THE TOWNSHIP OF MOUNT OLIVE, MOUNT OLIVE POLICE DEPARTMENT, and POLICE CHIEF STEPHEN BEECHER,
Defendants-Respondents. ____________________________
Argued December 9, 2024 – Decided April 22, 2025
Before Judges Gummer and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1497-23.
George T. Daggett argued the cause for appellant.
William G. Johnson argued the cause for respondents (Johnson & Johnson, attorneys; William G. Johnson, on the brief).
PER CURIAM Plaintiff Chad Rossy, a corporal in the Mount Olive Police Department
("MOPD"), appeals from a court order of January 15, 2024 granting defendants'
motion to dismiss with prejudice his single count complaint alleging retaliatory
denial of promotion to the position of sergeant. For reasons substantially
consistent with the well-reasoned ruling of Judge Stephan C. Hansbury, we
affirm.
I.
In September 2019, Mount Olive Township and the Fraternal Order of
Police ("FOP") entered into a collective bargaining agreement ("CBA").
Included in the agreement was the procedure for resolving any grievances
arising under the "interpretation or application of the [CBA's] terms and
conditions." Briefly, the procedure requires an employee to present their
grievance to the chief of police, and if dissatisfied with the chief's response, to
the township's mayor. If dissatisfied with the mayor's response, a grievant may
refer the matter to the Public Employment Relations Committee for binding
arbitration. An existing Township ordinance pertaining to the MOPD provided
that "[a]ny employee covered by a collectively negotiated agreement shall be
required to bring grievances, as specified in that agreement, in accordance with
the grievance procedure set forth therein." Mount Olive, N.J., Code § 68-13.
A-1436-23 2 As alleged in the complaint, in April 2020, defendant Police Chief
Stephen Beecher issued a sergeant's promotional list extension for a one-year
period, until May 13, 2021. On March 26, 2021, Chief Beecher extended the
sergeant's list from May 13, 2021 to October 2, 2021, a period of approximately
six months. One active sergeant retired effective October 1, 2021 and the
position was filled, leaving plaintiff first on the list. However, on July 1, 2021,
three months before expiration of the promotional process, Chief Beecher
announced initiation of a new process effective October 3, 2021, having the
effect of nullifying plaintiff's position as first on the list.
Written and oral interviews were administered for the remaining
sergeant's position. At the completion of the process, plaintiff purportedly
finished fourth and was not promoted. Plaintiff did not file a grievance over
perceived manipulation of the promotional process. Instead, he filed suit in the
Law Division, claiming he had been intentionally denied a promotion by Chief
Beecher in retaliation for his activities as president of the FOP, an organization
with which the Chief allegedly had had a history of confrontation. In the
complaint's wherefore clause, plaintiff sought compensatory damages,
attorney's fees, and "promotion to Sergeant."
In September 2023, plaintiff moved to enjoin defendants from promoting
A-1436-23 3 anyone to the position of sergeant during the pendency of his motion.
Defendant's cross-moved for dismissal of plaintiff's complaint in lieu of an
answer pursuant to Rule 4:6-2(e).
In an oral ruling issued December 22, 2023, reduced to written orders the
same day, the motion court denied plaintiff's requested relief and granted
defendants' motion to dismiss. First, the court found that plaintiff's request for
injunctive relief was without merit as he was not facing irreparable harm. Crowe
v. De Gioia, 90 N.J. 126, 133 (1982). The court also found plaintiff did not
have a likelihood of success on the merits and that the balance of equities
favored Mount Olive.
Concerning defendants' cross-motion, plaintiff argued he was not subject
to the grievance procedure because his claim was based on a civil rights
violation, consisting of his improper elimination from consideration caused by
manipulation of the promotional process. Judge Hasbury granted defendants'
application, citing Mount Olive, N.J., Code § 68-13, which reads: "Any
employee covered by a collectively negotiated agreement shall be required to
bring grievances as specified in that agreement in accordance with the grievance
procedure set forth therein." The court continued, citing a portion of the
grievance procedure contained in Article Eleven, Section A, subsection 1 of the
A-1436-23 4 CBA: "A grievance is a claim by a police officer or the FOP arising out of the
interpretation or application of the terms and conditions of this agreement, a
claim of discrimination or violation of Department rules, regulations, or policy."
The court found plaintiff should have followed the grievance procedure under
the CBA and that "[h]e does not have the right to file an independent law suit
because the rules under which he is directed require this to go through the
grievance process."
On appeal, plaintiff contends the motion court erred in granting the motion
to dismiss by failing to apply prevailing case law. Citing DiCristofaro v. Laurel
Grove Men-L Park, 43 N.J. Super. 244, 252 (App. Div. 1957), plaintiff
maintained the motion court failed to "search the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim" and grant "opportunity . . . to amend,
if necessary." Plaintiff maintains his complaint rests not on a failure to promote
but rather instead on an alleged section 1983 violation caused by defendants'
manipulation of the promotion process, resulting in plaintiff being denied "the
right to be considered as [number one] for the promotion." Plaintiff reiterates
that because the gravamen of his complaint is constitutional in dimension, he
was permitted to bypass the grievance process. Defendants urge affirmance,
A-1436-23 5 maintaining the motion court was correct in concluding plaintiff was legally
constrained to resolve his claim through the grievance process. In further
support of that position, defendants cite the New Jersey Employer-Employee
Relations Act (EERA), N.J.S.A. 34:13A–1 to –21, which governs resolution of
the underlying dispute concerning public employees operating under a CBA.
II.
"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which
relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,
LLC, 246 N.J. 157, 171 (2021). In considering a Rule 4:6-2(e) decision, "[a]
reviewing court must examine 'the legal sufficiency of the facts alleged on the
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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-1436-23
CHAD ROSSY,
Plaintiff-Appellant,
v.
MAYOR AND COUNCIL OF THE TOWNSHIP OF MOUNT OLIVE, MOUNT OLIVE POLICE DEPARTMENT, and POLICE CHIEF STEPHEN BEECHER,
Defendants-Respondents. ____________________________
Argued December 9, 2024 – Decided April 22, 2025
Before Judges Gummer and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1497-23.
George T. Daggett argued the cause for appellant.
William G. Johnson argued the cause for respondents (Johnson & Johnson, attorneys; William G. Johnson, on the brief).
PER CURIAM Plaintiff Chad Rossy, a corporal in the Mount Olive Police Department
("MOPD"), appeals from a court order of January 15, 2024 granting defendants'
motion to dismiss with prejudice his single count complaint alleging retaliatory
denial of promotion to the position of sergeant. For reasons substantially
consistent with the well-reasoned ruling of Judge Stephan C. Hansbury, we
affirm.
I.
In September 2019, Mount Olive Township and the Fraternal Order of
Police ("FOP") entered into a collective bargaining agreement ("CBA").
Included in the agreement was the procedure for resolving any grievances
arising under the "interpretation or application of the [CBA's] terms and
conditions." Briefly, the procedure requires an employee to present their
grievance to the chief of police, and if dissatisfied with the chief's response, to
the township's mayor. If dissatisfied with the mayor's response, a grievant may
refer the matter to the Public Employment Relations Committee for binding
arbitration. An existing Township ordinance pertaining to the MOPD provided
that "[a]ny employee covered by a collectively negotiated agreement shall be
required to bring grievances, as specified in that agreement, in accordance with
the grievance procedure set forth therein." Mount Olive, N.J., Code § 68-13.
A-1436-23 2 As alleged in the complaint, in April 2020, defendant Police Chief
Stephen Beecher issued a sergeant's promotional list extension for a one-year
period, until May 13, 2021. On March 26, 2021, Chief Beecher extended the
sergeant's list from May 13, 2021 to October 2, 2021, a period of approximately
six months. One active sergeant retired effective October 1, 2021 and the
position was filled, leaving plaintiff first on the list. However, on July 1, 2021,
three months before expiration of the promotional process, Chief Beecher
announced initiation of a new process effective October 3, 2021, having the
effect of nullifying plaintiff's position as first on the list.
Written and oral interviews were administered for the remaining
sergeant's position. At the completion of the process, plaintiff purportedly
finished fourth and was not promoted. Plaintiff did not file a grievance over
perceived manipulation of the promotional process. Instead, he filed suit in the
Law Division, claiming he had been intentionally denied a promotion by Chief
Beecher in retaliation for his activities as president of the FOP, an organization
with which the Chief allegedly had had a history of confrontation. In the
complaint's wherefore clause, plaintiff sought compensatory damages,
attorney's fees, and "promotion to Sergeant."
In September 2023, plaintiff moved to enjoin defendants from promoting
A-1436-23 3 anyone to the position of sergeant during the pendency of his motion.
Defendant's cross-moved for dismissal of plaintiff's complaint in lieu of an
answer pursuant to Rule 4:6-2(e).
In an oral ruling issued December 22, 2023, reduced to written orders the
same day, the motion court denied plaintiff's requested relief and granted
defendants' motion to dismiss. First, the court found that plaintiff's request for
injunctive relief was without merit as he was not facing irreparable harm. Crowe
v. De Gioia, 90 N.J. 126, 133 (1982). The court also found plaintiff did not
have a likelihood of success on the merits and that the balance of equities
favored Mount Olive.
Concerning defendants' cross-motion, plaintiff argued he was not subject
to the grievance procedure because his claim was based on a civil rights
violation, consisting of his improper elimination from consideration caused by
manipulation of the promotional process. Judge Hasbury granted defendants'
application, citing Mount Olive, N.J., Code § 68-13, which reads: "Any
employee covered by a collectively negotiated agreement shall be required to
bring grievances as specified in that agreement in accordance with the grievance
procedure set forth therein." The court continued, citing a portion of the
grievance procedure contained in Article Eleven, Section A, subsection 1 of the
A-1436-23 4 CBA: "A grievance is a claim by a police officer or the FOP arising out of the
interpretation or application of the terms and conditions of this agreement, a
claim of discrimination or violation of Department rules, regulations, or policy."
The court found plaintiff should have followed the grievance procedure under
the CBA and that "[h]e does not have the right to file an independent law suit
because the rules under which he is directed require this to go through the
grievance process."
On appeal, plaintiff contends the motion court erred in granting the motion
to dismiss by failing to apply prevailing case law. Citing DiCristofaro v. Laurel
Grove Men-L Park, 43 N.J. Super. 244, 252 (App. Div. 1957), plaintiff
maintained the motion court failed to "search the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim" and grant "opportunity . . . to amend,
if necessary." Plaintiff maintains his complaint rests not on a failure to promote
but rather instead on an alleged section 1983 violation caused by defendants'
manipulation of the promotion process, resulting in plaintiff being denied "the
right to be considered as [number one] for the promotion." Plaintiff reiterates
that because the gravamen of his complaint is constitutional in dimension, he
was permitted to bypass the grievance process. Defendants urge affirmance,
A-1436-23 5 maintaining the motion court was correct in concluding plaintiff was legally
constrained to resolve his claim through the grievance process. In further
support of that position, defendants cite the New Jersey Employer-Employee
Relations Act (EERA), N.J.S.A. 34:13A–1 to –21, which governs resolution of
the underlying dispute concerning public employees operating under a CBA.
II.
"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which
relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,
LLC, 246 N.J. 157, 171 (2021). In considering a Rule 4:6-2(e) decision, "[a]
reviewing court must examine 'the legal sufficiency of the facts alleged on the
face of the complaint,' giving the plaintiff the benefit of 'every reasonable
inference of fact.'" Id. (quoting Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, PC, 237 N.J. 91, 108 (2019)). And because the
motion court's decision here consists of interpretation and construction of a
contract as a matter of law, that aspect of our review is also de novo. Kaur v.
Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009).
The EERA provides that "[g]rievance and disciplinary review procedures
established by agreement between the public employer and the representative
organization shall be utilized for any dispute covered by the terms of such
A-1436-23 6 agreement." N.J.S.A. 34:13A–5.3. Thus, when a collective negotiation
agreement designates a grievance procedure as a means of resolving disputes
and the dispute at issue is covered by that procedure, "the matter must be
resolved through [the specified procedure] and not through the courts."
Limogiannis v. Consumers Distrib. Co., 215 N.J. Super. 50, 52 (App. Div.
1986).
Plaintiff's argument that "[t]his is not a case to be resolved according to
the rules and regulations dealing with failure to promote" is without merit.
Under the clear and unambiguous terms of the CBA, the parties agreed to resolve
any issue related to the "interpretation or application of the terms and conditions
of this [a]greement" or any "claim of [] violation of [d]epartment rules,
regulations or policy" through the grievance procedure. When a contract's terms
are "clear and unambiguous[,] there is no room for interpretation or
construction," and, therefore, courts "must enforce the terms as written." Karl's
Sales & Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div. 1991).
"The general rule is that an employee seeking to bring a contract grievance 'must
attempt use of the contract grievance procedure agreed upon by employer and
union as the mode of redress.'" Thompson v. Joseph Cory Warehouses, Inc.,
215 N.J. Super. 217, 220 (App. Div. 1987) (quoting Republic Steel Corp. v.
A-1436-23 7 Maddox, 379 U.S. 650, 652-53 (1965)).
Article Twelve of the CBA sets forth a procedure for the promotions
process and authorizes the chief of police to adopt specific criteria for promotion
and make recommendations to the appropriate authority. Accordingly, we
conclude that plaintiff's dispute arising out of the "application" of the promotion
process falls squarely within the ambit of the grievance procedure.
We also reject plaintiff's argument that the motion court erred by failing
to search the complaint sufficiently for a cause of action. The existence of a
cause of action is secondary to the determination of the appropriate tribunal for
the resolution of the dispute. Robertelli v. N.J. Off. of Atty. Ethics, 224 N.J.
470, 482 (2016) (quoting Gilbert v. Gladden, 87 N.J. 275, 280–81 (1981))
(holding that when a court lacks jurisdiction over a matter, its authority to
consider the substance of the claim is "wholly and immediately foreclosed").
Plaintiff's complaint pertaining to the promotion process is encompassed within
terms of the CBA and resolvable solely by the grievance process it contains.
Article Thirteen of the CBA is captioned "PROMOTIONS" and concerns the
procedure to be followed for "[p]romotions to the ranks of [s]ergeant,
[l]ieutenant[,] or [c]aptain." As such, the motion court appropriately declined
to determine whether a cause of action existed in the Superior Court and
A-1436-23 8 dismissed the case with prejudice. See Big Smoke LLC v. Twp of West Milford,
478 N.J. Super. 203, 226 (2024) (holding that dismissal with prejudice is
mandated when the facts are insufficient to support a claim and when discovery
will not reveal a successful claim).
Finally, we note that the question of plaintiff's eligibility for promotion is
not of constitutional magnitude. Our jurisprudence has long recognized that a
municipal employee who "was neither discharged nor suffered a reduction in
pay, and his rank and status within the civil service hierarchy were unaffected
by defendant's actions" does not suffer a deprivation of a property interest for
due process purposes. Ferraro v. City of Long Branch, 314 N.J. Super. 268,
283-84 (App. Div. 1998).
In reviewing the record de novo, we conclude the motion court did not err
in granting defendants' motion to dismiss plaintiff's complaint with prejudice.
Affirmed.
A-1436-23 9