NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1350-20
MICHAEL DOLINSKI,
Plaintiff-Appellant,
v.
BOROUGH OF WATCHUNG and CHIEF JOSEPH CINA,
Defendants-Respondents. __________________________
Argued March 16, 2022 — Decided July 8, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1080- 19.
Patrick P. Toscano, Jr., argued the cause for appellant (The Toscano Law Firm, LLC, attorneys; Patrick P. Toscano, Jr., on the brief).
Kathryn V. Hatfield argued the cause for respondents (Hatfield Schwartz Law Group, LLC, attorneys; Kathryn V. Hatfield, of counsel and on the brief; Andreya DiMarco, on the brief). PER CURIAM
Plaintiff Michael Dolinski, a police officer with defendant Borough of
Watchung (the Borough), appeals from a Law Division order granting
summary judgment dismissal on his claims under the New Jersey Civil Rights
Act (NJCRA), N.J.S.A. 10:6-1 to -2, and the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, against the Borough and its
Police Chief, defendant Joseph Cina. Having considered the parties'
arguments and applicable law, we affirm.
I.
On August 15, 2019, plaintiff filed his complaint against defendants
seeking compensatory and punitive damages based on violations of NJCRA
and CEPA and claims of intentional infliction of emotional distress and
municipal liability based on the Monell1 doctrine. After plaintiff filed a first
amended complaint, defendants removed the complaint to federal court based
on subject matter jurisdiction. The matter was subsequently remanded back to
the Superior Court after plaintiff voluntarily dismissed his municipal liability
claim.
1 Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
A-1350-20 2 In this appeal, plaintiff argues the motion judge erred in granting
summary judgment because he should have recused himself after releasing a
preliminary decision; he misapplied the law in dismissing the NJCRA and
CEPA claims; and he made improper factual determinations in dismissing
plaintiff's claim for punitive damages. Plaintiff's intentional infliction of
emotional distress claim was dismissed on summary judgment, but he does not
challenge that ruling.
II.
Dismissal of Plaintiff's Complaint
At the completion of discovery, defendants filed a motion for summary
judgment to dismiss plaintiff's complaint. Oral argument was conducted by an
initial motion judge (hereinafter referred to as "initial motion judge" or "initial
judge"), but the matter was then transferred to a different judge. Two days
before oral argument in front of the second motion judge (hereinafter referred
to as "motion judge" or "judge"), the parties received the judge's preliminary
written decision granting summary judgment dismissing the entire complaint.
In a letter to the judge and at oral argument, plaintiff requested the judge
recuse himself pursuant to Rules 1:12-l(d) and (g), or, in the alternative, that
A-1350-20 3 the initial judge decide the motion. The judge denied the request.2 Two days
after argument, the judge issued his order and written decision granting
summary judgment in favor of the defendants.3
A. Recusal Request
We reject plaintiff's continued contention that summary judgment should
be vacated because the motion judge's refusal to recuse himself after his
chambers prematurely released his draft opinion to the parties prior to oral
argument on the motion violated Rules 1:12-1(d) and (g). Rule 1:12-1(d)
requires a judge to be disqualified where she or he "has given an opinion upon
a matter in question in the action." The motion judge's preliminary decision
was based upon his assessment of the facts and law as argued in the parties'
briefs, not his previous opinion on the issues raised in the contested motion.
2 The judge explained that the initial judge did not recall until after hearing argument that the case was assigned to the judge a few weeks earlier. In addition, his preliminary decision was accidentally uploaded on the e-courts as an order. The judge admitted that he had already decided the motion and detailed how, in the past, judges sent all their preliminary opinions to the parties before oral arguments so they could go into the argument knowing how the judge was thinking. They are "just too busy to do that now, so [they] have them all obviously prewritten one way or the other." Plaintiff's counsel accepted the judge's explanation, stating, "the way [y]our [h]onor, the fashion in which you addressed that, answered it, answered my questions, [j]udge, is absolutely fine and acceptable to us on our end."
A-1350-20 4 In addition, Rule 1:12-1(g) requires a judge to be disqualified where
"there is any other reason which might preclude a fair and unbiased hearing
and judgment, or which might reasonably lead counsel or the parties to believe
so." There is no reason to "reasonably question [the judge's] impartiality," as
plaintiff asserts, due to "[t]he issuance of an order and complete decision prior
to the motion hearing." The customary practice to draft an opinion before
argument––as explained at argument––does not bring into question the judge's
partiality and objectivity. As the judge noted, the parties were made aware of
his thinking prior to argument, thereby enabling them to focus their arguments
on issues stressed in the preliminary opinion. As discussed below, the judge's
reasoning in his ultimate written opinion evinces no hint of impartiality. And
the same can be said for the draft opinion. In short, plaintiff was afforded a
fair and unbiased motion hearing.
III.
Summary Judgment
We review an order granting summary judgment de novo.
Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014).
Our recitation of the facts is derived from the evidence submitted by the
parties in support of, and in opposition to, the summary judgment motion,
A-1350-20 5 viewed in the light most favorable to plaintiff, and giving plaintiff the benefit
of all favorable inferences. Angland v. Mountain Creek Resort, Inc., 213 N.J.
573, 577 (2013). Summary judgment is granted when the record reveals "no
genuine issue as to any material fact" and "the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c).
The factual record before the motion judge in the light most favorable to
plaintiff was as follows.
A. Plaintiff's WPD Employment
Since July 2005, plaintiff has been employed with the Watchung Police
Department (WPD). In 2008, he was assigned to serve on the Somerset
County Special Weapons and Tactics (SWAT) team, in addition to his regular
patrolman duties. He later was named as an assistant team leader of the
SWAT containment team and promoted to a SWAT entry team unit. In 2015,
plaintiff was selected to serve as an acting full-time watch commander within
the WPD, making him responsible for ensuring service calls were properly
handled and all WPD policies and procedures were followed, as well as
approving his fellow police officers' reports.
B. Plaintiff's Concerns Regarding His Treatment By Cina And The WPD
In 2009, Cina, then a WPD Lieutenant, interviewed plaintiff's brother for
A-1350-20 6 a position with the WPD. Cina reportedly told plaintiff that he had to talk his
younger brother "off the ledge" because his interview with the WPD "went
horrible," which was contrary to the brother's perception and recollection of
the interview. This caused plaintiff to be "uncomfortable with . . . Cina any
time he had any contact with him."
In 2011, plaintiff was unsatisfied with Cina's evaluation of his 2010 job
performance finding him deficient in the areas of appearance, attitude,
performance, productivity, and sick time usage. Plaintiff claimed that Cina
stated he was unproductive because he was not writing enough summonses.
Plaintiff did not grieve the evaluation nor the performance improvement plan
(PIP) he was placed on. Within four months of being placed on a PIP, Cina
removed plaintiff from the PIP based on his continued improved performance.
In August 2015, plaintiff was first placed in the Guardian Tracker
system by now-Chief Cina due to concerns regarding his use of sick time. He
did not receive any discipline because of this entry and he received multiple
commendations in the Guardian Tracker regarding his performance.
In December 2016, when concerns over his sick time reemerged,
plaintiff informed Cina that he "use[d] sick time when [he was] sick or injured,
and sometimes [when] doing jiu jitsu and boxing[,] [I] get injured," to which
A-1350-20 7 Cina responded, "maybe [you] should start changing [your] off-duty activities"
because they add "nothing of value" to the WPD. Cina admitted in his
deposition that during multiple discussions over several years he threatened to
remove plaintiff from the SWAT team if the sick time abuse continued.
In 2017, Cina removed plaintiff from the SWAT team assignment. Cina
stated it was due to plaintiff's abuse of sick time. Plaintiff claimed it was
because he complained about Cina's unfair treatment of him.
In April 2018, a Guardian Tracker entry was made by Lieutenant
Andrew Hart stating plaintiff caused a motor vehicle accident in a patrol
vehicle. Plaintiff disputed a "motor vehicle accident" occurred, claiming
"technically, it wasn't a motor vehicle accident, it was a parked car."
In July 2018, plaintiff was wrongfully reprimanded by one of his
supervising lieutenants, contrary to the New Jersey State Attorney General
Guidelines, when he was given a written reprimand for slamming a police
cruiser door on July 19.4 Plaintiff claimed he was off duty for four days before
the alleged incident and was out of work due to an injury the day of the alleged
4 The reprimand referenced a March 2016 Guardian Tracker entry by Lieutenants Hart and Kelly for "slamming a police cruiser door with too much momentum" on March 7 and 15; plaintiff refuted their account.
A-1350-20 8 incident and two days thereafter. Plaintiff claimed that his PBA president told
him that he wasn't allowed to grieve minor discipline.
On August 23, 2018, plaintiff was placed into the Early Intervention
Program (EIP) for ten months for causing damage to police vehicles some
years prior, although the Document Management System 5 recommended only
three months of EIP.
In September 2018, plaintiff received another Guardian Tracker entry for
wearing "stretchy" patrol pants that were not approved by the WPD. Plaintiff
contended other officers also wore the same pants and did not receive
Guardian Tracker entries. This same month, Cina denied plaintiff's request to
take a "road job" before noon for extra pay because the WPD was short-
staffed.
In January 2019, plaintiff was interviewed by Somerset County
Prosecutor's Office investigators following his complaints against Cina and the
WPD regarding improprieties within the WPD. Over the years, plaintiff
complained to his sergeants that Cina was pressuring him to write more tickets
and make more arrests, in violation of N.J.S.A. 40A:14-181.2(b) and N.J.S.A.
5 The Document Management System is a record management program used by the WPD to maintain and document department "policies, procedures, specific orders, and all the rules that dictate how [the department] operates."
A-1350-20 9 2C:30-2, by threatening to remove him from the SWAT team if his "ticket
numbers" did not increase.
In April 2019, Cina denied plaintiff's requests to be reinstated to the
SWAT team and to attend firearms instructor school and become a field
training officer. Plaintiff contends he had the necessary qualifications and
years of experience.
IV.
NJCRA Claims
In dismissing plaintiff's NJCRA claims, the motion judge reasoned that
plaintiff's complaints regarding Cina and the WPD to the Somerset County
Prosecutor's Office were not protected speech under NJCRA and he failed to
identify any specific civil rights violation. The judge reasoned:
The First Amendment protects a public employee from freely expressing his or her views on matters of public concern. But where the expression merely involves issues of private concern such as routine disputes involving an employee and an employer, the employer is not required to tolerate actions which it could reasonably believe are disruptive to the office[] or would undermine the employer's authority or would destroy working relationships.
Plaintiff argues his NJCRA claim should not have been dismissed
because "his . . . violated [rights] implicate matters of public concern and he
A-1350-20 10 has presented triable issues of material fact" for this claim. Quoting Borden v.
School District of East Brunswick, 523 F.3d 153, 170 (3d Cir. 2008), he
maintains his complaints to the Somerset County Prosecutor's Office were
matters of public concern because they "'implicat[e] the discharge of public
responsibilities by an important government office, agency[,] or institution[,]'"
and he "brought to light 'wrongdoing or breach of public trust' on the part of
government officials." Stressing that Cina admitted he was aware of these
complaints, plaintiff states Cina took retaliatory action against him.
Plaintiff argues the motion judge erred in granting defendant Cina
qualified immunity. Citing Morillo v. Torres, 222 N.J. 104, 118 (2015),
plaintiff argues the judge did not apply the proper standard of review, because
he did not accept the facts as plaintiff alleged and did not view every fact and
inference alleged by plaintiff in the light most favorable to him. Plaintiff
essentially argues that the motion judge "ignored that Cina's actions against
[plaintiff] were taken in retaliation for [his] written and verbal objections to
the Guardian Tracker entries . . . and unwarranted reprimands . . . as well as
his complaints to the Somerset County Prosecutor's Office." Plaintiff also
argues the judge erred in finding Cina acted within his rights as the Chief of
Police because he "engaged in a continual pattern of inexplicable, shocking
A-1350-20 11 events that were intended to harass, abuse, and retaliate against [plaintiff]."
We conclude that viewing the facts in the light most favorable to
plaintiff and as a matter of law, the motion judge properly dismissed plaintiff's
NJCRA claim because plaintiff did not assert facts sufficient to establish a
violation of the NJCRA.
The NJCRA in pertinent part states:
Any person who has been deprived of . . . any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c).]
Thus, the NJCRA provides a cause of action to any person who has been
deprived of any rights under either the federal or state constitutions by a
"person" acting under color of law. Ibid. It "is not a source of rights itself."
Lapolla v. Cnty. of Union, 449 N.J. Super. 288, 306 (App. Div. 2017) (citing
Gormley v. Wood-El, 218 N.J. 72, 97-98 (2014)). By its terms, "[t]wo types
of private claims are recognized under this statute: (1) a claim when one is
'deprived of a right,' and (2) a claim when one's rights have been 'interfe red
A-1350-20 12 with by threats, intimidation, coercion or force.'" Ibid. (quoting Felicioni v.
Admin. Off. of Cts., 404 N.J. Super. 382, 400 (App. Div. 2008)).
The NJCRA, modeled after the Federal Civil Rights Act, 42 U.S.C. §
1983, affords "a remedy for the violation of substantive rights found in our
State Constitution and laws." Brown v. State, 442 N.J. Super. 406, 425 (App.
Div. 2015) (quoting Tumpson v. Farina, 218 N.J. 450, 474 (2014)), rev'd on
other grounds, 230 N.J. 84 (2017). The NJCRA has been interpreted by our
Supreme Court to be analogous to Section 1983; thus, New Jersey courts
"look[] to federal jurisprudence construing [Section 1983] to formulate a
workable standard for identifying a substantive right under the [NJCRA]."
Harz v. Borough of Spring Lake, 234 N.J. 317, 330 (2018).
"[S]peech on public issues occupies the 'highest rung of the hierarchy of
First Amendment values,' and is entitled to special protection." Connick v.
Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 913 (1982)). "A public employee has a constitutional right to
speak on matters of public concern without fear of retaliation." Baldassare v.
State of N.J., 250 F.3d 188, 194 (3d Cir. 2001). Accord Garcetti v. Ceballos,
547 U.S. 410, 417 (2006). But the First Amendment only affords protection if
the employee speaks "as a citizen on a matter of public concern." Id. at 418.
A-1350-20 13 In Garcetti, the United States Supreme Court held that if a public employee is
not speaking as a citizen, "the employee has no First Amendment cause of
action based on his or her employer's reaction to the speech." Ibid. "[W]hen
public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer
discipline." Id. at 421.
Plaintiff failed to assert facts––as required by NJCRA––demonstrating
defendants disregarded and interfered with his exercise of his constitutional
free speech rights. Although speaking as a citizen and not in his official
capacity as a police officer—his speech solely concerned alleged actions taken
by defendants that only negatively impacted his employment. Any alleged
retaliation taken against plaintiff by Cina was not due to plaintiff's exercise of
free speech rights. Plaintiff did not assert that Cina's conduct affected anyone
else in the WPD or the public, nor were his complaints egregious enough to
warrant public notice. We therefore join the motion judge in concluding that
plaintiff's complaints to the Somerset County Prosecutor's office were not
protected speech under NJCRA as they related solely to his employment
conditions.
A-1350-20 14 Considering our conclusion that plaintiff's NJCRA's claims should be
dismissed, we need not address his contention that Cina was not entitled to
qualified immunity as the motion judge ruled. That said, for the sake of
completeness, we agree with the judge that any claims against Cina in his
official capacity should also be dismissed as duplicative of the claims against
the Borough. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). And
because we also agree that plaintiff failed to demonstrate Cina's alleged
conduct violated his constitutional free speech rights, Cina has qualified
immunity from suit. See Brown v. State, 230 N.J. 84, 98 (2017) (holding a
governmental official is entitled to qualified immunity unless it is established
that a clearly established constitutional right was violated).
CEPA Claims
The motion judge dismissed plaintiff's CEPA claim, ruling that all
alleged adverse conduct which occurred prior to August 15, 2018, was barred
by CEPA's one-year statute of limitations as the suit was filed on August 15,
2019.
As for the merits of the claim, the judge ruled plaintiff did not engage in
any whistle-blowing activity. He decided:
A-1350-20 15 [N]one of [Cina's] purported conduct suggests that at any time [p]laintiff believed he was required to participate in illegal activity. As such, there are no allegations made by [p]laintiff that [he] refused to participate in or objected to participation in any alleged illegal activity. Accordingly, the [c]ourt will evaluate whether any of the [p]laintiff's allegations amount to whistle[-]blowing activities by disclosing or threatening to disclose unlawful conduct.
....
The [c]ourt finds that [p]laintiff's allegations amount to nothing more than routine workplace disputes about internal policy and management style. Accordingly, none of the [p]laintiff's allegations amount to whistle[-]blowing activity under CEPA. While [p]laintiff claims that he made a complaint about . . . Cina to the Somerset County Prosecutor's Office in 2019, he has not presented any testimony or documentary evidence to show that this complaint was based on anything more than workplace grievances. Accordingly, this also does not constitute whistle[-]blowing activity under CEPA.
For completeness, the judge addressed and rejected defendants' argument
that the NJCRA claim was subsumed under CEPA's waiver provision because
the claim alleged the same set of operative facts of his CEPA claim and
plaintiff did not differentiate between the facts supporting the respective
claims. The judge explained:
Plaintiff's NJCRA claim is based on his claims that he voiced objections or concerns regarding practices and treatment by his employer, and as a result of his
A-1350-20 16 speech, he was retaliated against. This is the identical argument [p]laintiff makes in support of his CEPA claim, and therefore it is subsumed.
Plaintiff contends the judge erred in finding his CEPA claim was
untimely filed because he misclassified Cina's pattern of conduct over the
years as "discrete acts," and incorrectly found that the only conduct that fell
within CEPA's statute of limitation period was the 2019 denials of plaintiff's
attempts to be reinstated onto the SWAT Team and promoted to Sergeant. By
glossing over Cina's engaged continual pattern of unlawful conduct over the
course of years that created a hostile work environment, plaintiff, citing
Shepherd v. Hunterdon Development Center, 174 N.J. 1, 19 (2002), asserts the
judge "ignore[d] that hostile work environments are created by repeated
unlawful conduct over a period of time in direct contrast to discrete acts,
which consist of single acts."
Plaintiff specifically points to Cina's engagement in an "unrelenting
stream/barrage of unequivocal and wide-ranging lies included bogus
disciplinary charges to cover up his true retaliatory motives." Plaintiff
maintains that the "mischaracterization of his sick time usage," the "conflated
reports of incidents involving damage to police vehicles," as well as Cina
A-1350-20 17 singling plaintiff out in a group and reprimanding him for wearing "stretchy"
patrol pants was all pretext for his retaliation.
Moreover, plaintiff claims the motion judge did not review and consider
the certification of WPD officer Richard Lyons "impartially" or "in the light
most favorable to [plaintiff]." Lyons, who had previously sued and settled a
lawsuit against the WPD over Cina's treatment, certified that plaintiff
complained numerous times over the course of years about Cina to co-workers,
that Cina "had it out for" plaintiff, and he reiterated the examples of "abuse
and retaliation" plaintiff asserted in his complaint and appeal. Plaintiff further
challenges the motion judge's the characterization of the certification as "an
attempt to resurrect or bolster [plaintiff's] claims" with "merely self -serving
assertions that are not based upon any personal knowledge." Instead, he insists
Lyon's certification corroborates his CEPA claim by "providing precise and
detailed examples of Cina's incessant adverse actions against [plaintiff]."
Plaintiff, therefore, maintains that the continuing violation doctrine should
have been applied to his CEPA claim.
To establish a prima facie case under CEPA, a plaintiff must prove:
(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;
A-1350-20 18 (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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).]
"The evidentiary burden at the prima facie stage is 'rather modest . . . .'"
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v.
Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). Once a plaintiff
establishes the four CEPA elements, the burden shifts to the defendant to
"advance a legitimate, nondiscriminatory reason for the adverse conduct
against the employee." Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J.
Super. 28, 38 (App. Div. 2005). "If such reasons are proffered, plaintiff must
then raise a genuine issue of material fact that the employer's proffered
explanation is pretextual." Id. at 39.
CEPA prohibits employers from retaliating against an employee who:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of
A-1350-20 19 the employer . . . that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or
(2) is fraudulent or criminal . . . ;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer . . . ; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;
(2) is fraudulent or criminal . . . ; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
[N.J.S.A. 34:19-3.]
CEPA was enacted to prevent retaliatory action when an employee blows the
whistle on improper activities, "not to assuage egos or settle internal disputes
at the workplace." Klein, 377 N.J. Super. at 45. CEPA defines "retaliatory
action" as "the discharge, suspension or demotion of an employee, or other
A-1350-20 20 adverse employment action taken against an employee in the terms and
conditions of employment." N.J.S.A. 34:19-2(e).
Generally, a plaintiff has one year from the occurrence of the retaliation
to file an action under CEPA. N.J.S.A. 34:19-5. Retaliatory actions can be a
single discrete action, like the failure to promote, or a hostile work
environment, which consists of "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).
The limitations period, however, is subject to an equitable exception for
continuing violations. Roa v. Roa, 200 N.J. 555, 566 (2010). The continuing
violation doctrine is "a judicially created doctrine . . . [that] has developed as
an equitable exception to the statute of limitations." Bollinger v. Bell Atl., 330
N.J. Super. 300, 306 (App. Div. 2000). Under the continuing violation
doctrine, which applies to CEPA claims, Green, 177 N.J. at 446-49, "a plaintiff
may pursue a claim for discriminatory conduct if he or she can demonstrate
that each asserted act by a defendant is part of a pattern and at least one of
those acts occurred within the statutory limitations period." Shepherd v.
A-1350-20 21 Hunterdon Dev. Ctr., 174 N.J. 1, 6-7 (2002) (citing West v. Phila. Elec. Co.,
45 F.3d 744, 754-55 (3d Cir. 1995)).
In Shepherd, the Court highlighted the difference between a hostile work
environment claim that falls within the continuing violation doctrine and a
claim based on a discrete act that does not. 174 N.J. at 19-20.
Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative [e]ffect of individual acts.
. . . A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice." . . . It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
That act need not, however, be the last act. As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has "occurred," even if it is still occurring. Subsequent events, however,
A-1350-20 22 may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole.
[Ibid. (quoting AMTRAK v. Morgan, 536 U.S. 101, 115-17 (2002)).]
The Court adopted the following two-prong test:
First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding "that some of the component acts of the hostile work environment [have fallen] outside the statutory time period."
[Id. at 21 (alteration in original) (quoting Morgan, 536 U.S. at 117).]
A. Timeliness of Some CEPA Claims
In the present matter, all of plaintiff's claims constitute discrete acts
which cannot be aggregated; therefore, the motion judge properly limited his
claims to those after August 25, 2018. The facts do not indicate a pattern of
violations that were "continuous, cumulative, [or] synergistic." Wilson v.
Wal-Mart Stores, 158 N.J. 263, 273 (1999). Most of plaintiff's claims
A-1350-20 23 occurred sporadically over the course of a decade, and, when viewed
cumulatively, they do not suggest a hostile work environment.
First, plaintiff only provided one negative performance review from
2010 and one PIP in 2011, which constitute discrete actions. As to the
allegations that plaintiff was misusing sick time, this was first alleged in the
2010 review and plaintiff did not get another similar warning until 2015 when
an entry was made in the Guardian Tracker. This occurred five years after the
first allegation and two years after the implementation of Guardian Tracker.
This was also plaintiff's first entry in the system. Five years without any
issues does not speak to a pattern of continued violations.
Plaintiff contends he was improperly removed from the SWAT team in
2017, and plaintiff admits he did not suffer any other disciplinary action that
year. In 2018, plaintiff was placed on EIP and received a written reprimand;
however, that still did not establish a pattern of violations, as it was only two
times for separate purposes. These all constitute discrete employment actions,
which are not continuing violations to be aggregated to revive an untimely
claim. Thus, summary judgment dismissal of plaintiff's CEPA claims
occurring before August 25, 2018, was proper because they were not timely
filed.
A-1350-20 24 B. Merits of CEPA Claims
Turning to plaintiff's CEPA claims occurring after August 25, 2018—the
denials of his request for reinstatement to the SWAT team, for promotion to
sergeant and of his 2019 request to attend firearm training—that were
dismissed on their merits, plaintiff argues the motion judge erred because, like
his NJCRA claim, he provided "ample factual proof supporting his cause of
action or, at a minimum, raising genuine factual issues that . . . precluded a
grant of summary judgment" in favor of defendants. He contends that pursuant
to N.J.S.A. 34:19-3(a)-(c) and Dzwonar, 177 N.J. at 462, he does not have to
show that the employer actually violated the law, rule, regulation, or other
authority that he relies upon. Instead, he need only "demonstrate that he . . .
reasonably believed that a violation occurred" about which he complained.
Plaintiff asserts his "whistle-blowing" activity under N.J.S.A. 34:19-
3(a)(1) occurred when he reported his allegations of mistreatment and
unlawful conduct by Cina to the Somerset County Prosecutor's Office. He
contended at the motion hearing that Cina's threats to fire him if he didn't write
more tickets constituted official misconduct, N.J.S.A. 2C:30-2, and a violation
of N.J.S.A. 40A:14-181.2(b), which prohibits "us[ing] the number of . . .
citations . . . as the sole criterion for promotion, demotion, dismissal, or the
A-1350-20 25 earning of any benefit provided by the department or force." Plaintiff
maintains that Cina fabricated disciplinary charges "to place him on a PIP" in
the effort to "derail [plaintiff's] promotional opportunities, ruin his career, and
ultimately force him out of the WPD in retaliation for [p]laintiff's persistent
objections to Cina's false accusations about his job performance and the
complaints he made about Cina to superiors." He argues that his complaints
encompassed more than mere routine workplace disputes or grievances, and,
therefore, the summary judgment motion should have been denied.
Citing Estate of Roach v. TRW, Inc., 164 N.J. 598 (2000) and Higgins v.
Pascack Valley Hospital, 158 N.J. 404 (1999), plaintiff further argues that
even if his allegations merely concern internal workplace policies and
procedures, CEPA's public policy prong still encompasses internal compla ints
on employer policies. Contending CEPA claims are liberally construed in
view of the remedial nature of the statute, Dzwonar, 177 N.J. at 461, in
addition to "the fact-sensitive nature of retaliation claims," plaintiff claims the
summary judgement motion should have been denied based on the evidence
presented which included contested issues of fact.
Even though we liberally construe CEPA claims in view of the remedial
nature of the statute, Dzwonar, 177 N.J. at 461, our close and careful review of
A-1350-20 26 the factual record and our summary judgment principles compels us to
conclude that defendant's CEPA claims, before and after August 25, 2018,
were correctly dismissed on summary judgment. As noted above, plaintiff's
complaints addressed his personal job disputes with Cina and the WPD. There
is no indication that his complaints to the Prosecutor's Office were anything
other than an effort bring light to his belief that he was denied employment
opportunities and unfairly disciplined. His allegation that defendants violated
N.J.S.A. 40A:14-181.2(b) by disciplining him for not writing enough tickets
speaks to his employment complaint that he was unfairly disciplined.
Because we conclude plaintiff did not engage in any whistle-blowing
activity, we need not address whether he suffered any adverse employment
action.
VI.
Punitive Damages Claim
Punitive damages are awarded to ensure "deterrence of egregious
misconduct and the punishment of the offender." Longo v. Pleasure Prods.,
Inc., 215 N.J. 48, 57-58 (2013) (quoting Herman v. Sunshine Chem.
Specialties, Inc., 133 N.J. 329, 337 (1993)). They are allowable only if
the plaintiff proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's
A-1350-20 27 acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.
[N.J.S.A. 2A:15-5.12.]
Plaintiff argues the motion judge erred in dismissing his CEPA claim for
punitive damages given there are genuinely disputed issues of fact. We
disagree. Because we conclude summary judgment dismissal of his CEPA
claim was appropriate, plaintiff has no viable damages claim let alone one for
punitive damges.
Any arguments made by defendant that we have not expressly addressed
are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-1350-20 28