NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1253-16T3
TROOPER JUSTINE POSER (BADGE No. 5910),
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, DIVISION OF STATE POLICE OF THE STATE OF NEW JERSEY, DEPARTMENT1 OF LAW AND PUBLIC SAFETY, COLONEL RICK FUENTES, and MAJOR HUGH JOHNSON (Ret.),
Defendants-Respondents.
Argued telephonically January 24, 2018 – Decided June 22, 2018
Judges Simonelli, Rothstadt, and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0069-14.
George T. Daggett argued the cause for appellant.
Tasha M. Bradt, Deputy Attorney General, argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Melissa
1 Improperly pled as Division. H. Raksa, Assistant Attorney General, of counsel; Tasha M. Bradt, on the brief).
PER CURIAM
Plaintiff Justine Poser, a member of the New Jersey
Division of State Police, appeals from a November 18, 2016 Law
Division order upholding its August 5, 2016 order granting
summary judgment to defendants, the State of New Jersey, the New
Jersey Division of State Police, Colonel Rick Fuentes, Major
Hugh Johnson, and John Does 1-5 (collectively defendants), and
dismissing her complaint with prejudice. In her complaint,
plaintiff asserted a cause of action for retaliation under the
New Jersey Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, alleging defendants transferred her to
another unit as retaliation for filing a complaint against a
superior. In granting summary judgment, the motion judge
concluded plaintiff had failed to raise disputed issues of
material facts required to establish a prima facie case of
retaliation and withstand summary judgment. On plaintiff’s
motion for reconsideration, the judge maintained his position.
At the outset, we point out that plaintiff’s notice of
appeal only identified the November 18, 2016 order denying her
motion for reconsideration. If the notice of appeal "designates
only the order entered on a motion for reconsideration, it is
only that proceeding and not the order that generated the
2 A-1253-16T3 reconsideration motion that may be reviewed.” Pressler &
Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1(f)(1)
(2018). However, because defendants have not objected to our
review of the August 5, 2016 order granting them summary
judgment, and addressed the summary judgment motion in their
merits brief, we may address the merits of the summary judgment
motion. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397
N.J. Super. 455, 458 (App. Div. 2008). That being said, we
agree with the judge’s ruling on the summary judgment motion and
affirm.
We derive the following facts from evidence submitted by
the parties in support of, and in opposition to, the summary
judgment motion, and view them in the light most favorable to
plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J.
573, 577 (2013) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995)). Plaintiff graduated from the 121st
class of the State Police Academy on April 21, 2001. She worked
in various positions for ten years until 2011, when she
transferred to the Digital Technology Investigations Unit
(DTIU), "which makes use of federally funded technology, via the
Internet Crimes Against Children (ICAC) grant, to investigate
internet crimes against children." Approximately six months
later, she attended Criminal Investigation School in order to
3 A-1253-16T3 become a detective in the DTIU.
The facts giving rise to the complaint first unfolded in
September 2012. Plaintiff was having breakfast with fellow DTIU
Detectives Chris Sciortino and Chris DeAngelis, when Sciortino
disclosed that DTIU Detective Sergeant First Class Charles
Allen, their superior officer, had asked him to remove
pornography from his computer. Sciortino speculated that Allen
wanted to remove the files in anticipation of an upcoming
federal audit on the DTIU's use of federal funds. Although
Sciortino was unable to remove the file, titled "gangbang," he
told plaintiff and DeAngelis that while he was working on the
computer, Allen had commented on "the actual adult porn sites"
he liked to visit.
Plaintiff told Sciortino he should report the incident, but
Sciortino "wanted to leave it alone." A few days later,
plaintiff discussed Sciortino's comments with Detectives Erin
Micciulla and Chris Camm. Camm, who was in charge of
maintaining training laptops, told plaintiff and Micciulla about
an incident where he had found a missing laptop in Allen's
office, "connected to the undercover network
and . . . downloading adult pornography." Camm said he did not
do anything about the incident out of fear. Plaintiff and
Micciulla found Allen's actions "completely unacceptable" in
4 A-1253-16T3 light of the DTIU's focus on "combat[ing] sexual exploitation of
children."
Micciulla reported the incident to Lieutenant Joe Glennon,
who said he needed "to get [his] ducks in order before [he did]
anything." Upset by Glennon's inaction, plaintiff and Micciulla
filed a complaint with the Office of Professional Standards
(OPS) on September 27, 2012. In their complaint, they stressed
the urgent need for a response, as Allen could delete the
evidence from the computers before OPS could investigate. OPS
sent a trooper to remove the equipment from the DTIU later that
same day.
Plaintiff also filed a report with the Equal Employment
Opportunity Office (EEO) because of the "harassing" and "sexual
nature" of Allen's actions. In her interview with EEO,
plaintiff reported feeling "extremely uncomfortable" dealing
"with a supervisor [who was] downloading and viewing
[pornography] for his personal pleasure in his office while at
work." She called Allen's conduct "disgusting," and said she
"did not want to physically touch his computers."
Within a few days of filing the report, Allen was detached2
to the Cyber Crimes Unit, located "directly across the hall from
2 In her deposition, plaintiff said "detachment is what the State Police does when they need to quickly move somebody."
5 A-1253-16T3 the [DTIU]." Shortly thereafter, plaintiff again complained to
OPS and EEO that she was still uncomfortable with Allen's
proximity to her, as they still saw each other every day, parked
in the same lot, and used the same door. Both OPS and EEO
informed her there was "nothing [they could] do about that."
On January 16, 2013, Major Hugh Johnson, head of the
Special Investigation Section, promoted plaintiff to Acting
Detective Sergeant of the Evidence Management Unit (EMU), which
was "responsible for the handling and care of all evidence in
the custody of the State Police." The EMU, located at Division
Headquarters in West Trenton, was in a different location from
the DTIU. Her transfer was to become effective on January 26,
2013.3 When Glennon called plaintiff to inform her about her
promotion and transfer, plaintiff told him she did not want the
position. Glennon attempted to convince plaintiff the move
would benefit her career, but, when she still refused, he said,
3 Johnson certified that when the position of Detective Sergeant at the EMU became available, another officer who already worked in the unit was selected for the promotion. However, during a routine check of that officer's background, Johnson discovered he was the subject of an OPS investigation and, therefore, ineligible for promotion. As a result, he gave the promotion to plaintiff because she was "the next individual on the list" for a promotion to Sergeant. Johnson certified that although he was aware of the internal complaint filed against Allen, he did not know who had filed the complaint because that information was confidential. He also averred he was "unaware of any other promotional opportunities" when he promoted and transferred plaintiff to the EMU.
6 A-1253-16T3 "Justine, the Major's not asking you, he's telling you."
At the time of her transfer, plaintiff ranked first in the
State Police Ranking System, which meant she was first up for
Sergeant in the DTIU. The State Police awarded promotions based
on a ranking system, and transfers did not require employee
consent before becoming effective. Nonetheless, plaintiff
believed her promotion and transfer to the EMU, over her
objections, violated the State Police's practice of discussing
promotions with the recipient in advance to determine if the
move was personally and professionally beneficial to the
recipient.
Two days after the announcement of plaintiff's transfer,
Detective Ryan Hoppock of the Cyber Unit, where Allen was
detached, overheard Allen telling Cyber Unit Lieutenant Stanley
Field that plaintiff had "got[ten] what she deserved because she
made a complaint." Hoppock also heard the men saying plaintiff
and Micciulla were both on a "bury list" and would "get [theirs]
for what [they] said." Hoppock reported the comments to
Micciulla, who told plaintiff.
When plaintiff first arrived at the EMU, another member of
the unit asked, "[W]ho did you piss off?" Later, the EMU
Lieutenant told plaintiff he was sorry she had been transferred
to their unit because they were "the misfits of the State
7 A-1253-16T3 Police." Five days after plaintiff's transfer to the EMU became
effective, DeAngelis was promoted to Acting Detective Sergeant
at the DTIU, effective February 9, 2013.
Plaintiff felt that working at the EMU was "demeaning"
because "the individuals [who] work[ed] there were either sent
there because they got in trouble . . . or they were
physically . . . disabled." According to plaintiff, "it was
known[] that [the EMU] . . . is where you go when you're in
trouble or injured." She found the work "mundane," and
described the evidence repository as "dirty,
dingy, . . . smelly," "disgusting," and "foul." Plaintiff
thought the transfer was unwarranted and done as "punishment
for . . . filing [a complaint] against . . . two senior members"
of the State Police.
On February 13, 2013, plaintiff submitted a "written
special report requesting a transfer back to [the DTIU.]" The
State Police approved her request and agreed to transfer her
back to the DTIU "as soon as . . . operationally feasible."
However, plaintiff did not receive a response to her request
until the paperwork "appeared on [her] desk" in April 2014. In
May 2014, she was transferred to the Cyber Crimes Unit4 and her
4 Allen was no longer detached to the Cyber Crimes Unit when plaintiff transferred there.
8 A-1253-16T3 promotion to Sergeant was finalized.
By leave granted, on February 19, 2016, plaintiff filed an
amended four-count complaint alleging defendants had violated
her rights under CEPA. Specifically, she claimed her transfer
to the EMU, over her objection, was retaliation for reporting
Allen's illegal use of federally-funded technology to download
pornography. After discovery was completed, defendants moved
for summary judgment, arguing that plaintiff had failed to make
out a prima facie case under CEPA. On August 5, 2016, after
oral argument, the motion judge granted defendants' motion.
Referring to the "four elements in a CEPA claim," the judge
concluded that plaintiff had established the first two elements
of a prima facie claim, as there was no factual dispute that
plaintiff reasonably believed "[d]ownloading adult pornography
on [the] State's leased computers . . . was a violation of a
law, rule[,] or public policy." Next, the judge determined that
plaintiff "complain[ing] about it and [bringing] it to people's
attention" was a protected whistleblowing activity. However,
the judge found plaintiff had failed to establish the third
element, which requires an adverse employment action. In fact,
the judge found her promotion was "a reward for bringing it up,"
or a "favorable action," even if it meant a longer commute and a
9 A-1253-16T3 longer workweek.5
The judge explained:
I understand it was a transfer, a different location, and I understand she had to drive further to get to work, but she works for the State Police. If she worked for a municipality that only had offices in the municipality and for some reason they're now sending her far, far away, maybe I could get there. But the State Police operate all around the [S]tate of New Jersey. . . . So I can't draw an inference that . . . it's an adverse action just because she says she has to drive longer.
I understand she used to have four-day workweeks, and now she's got five-day workweeks, but where's the evidence that shows that that's something she was entitled to, that that was supposed to be a career- long position in the first place, . . . that this was something she had that . . . constituted some kind of entitlement, or right, or property, or something, so that if it was [lost] that it's worth compensating. I don’t have anything like that.
According to the judge, the only adverse consequence of
plaintiff's transfer was the loss of overtime, but she had not
provided any evidence of lost income. Further, the judge
rejected plaintiff's contention that "the timing of things"
supported her retaliation claim.
Plaintiff filed a motion for reconsideration pursuant to
5 At DTIU, "[p]laintiff worked four ten-hour shifts." At the EMU, "she worked five eight-hour shifts."
10 A-1253-16T3 Rule 4:49-2, which the judge entertained. However, after oral
argument on November 18, 2016, the judge denied plaintiff's
motion and affirmed his initial decision granting summary
judgment in favor of defendants. This appeal followed.
We review a ruling on a motion for summary judgment de novo
and apply the same standard as the trial court. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
N.J. 189, 199 (2016) (citation omitted). Thus, we consider, as
the motion judge did, "whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill, 142 N.J. at 540.
"If there is no genuine issue of material fact, we must
then 'decide whether the trial court correctly interpreted the
law.'" DepoLink Court Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App.
Div. 2007)). We review issues of law de novo and accord no
deference to the trial judge's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed questions of
law and fact, [we] give[] deference . . . to the supported
factual findings of the trial court, but review[] de novo the
11 A-1253-16T3 lower court's application of any legal rules to such factual
findings." State v. Pierre, 223 N.J. 560, 577 (2015) (first
alteration in original) (quoting State v. Harris, 181 N.J. 391,
416 (2004)).
This standard compels the grant of summary judgment "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." R. 4:46-2(c). "To defeat a
motion for summary judgment, the opponent must 'come forward
with evidence that creates a genuine issue of material fact.'"
Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)
(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425
N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-
serving assertions by one of the parties are insufficient to
overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41
(2005) (citation omitted). Applying the above standards, we
discern no reason to reverse the grant of summary judgment.
CEPA seeks to eliminate "vindictive employment practices"
by prohibiting employers from taking "any retaliatory action[,]"
Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 418
(1994), against an employee who:
12 A-1253-16T3 a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, 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.]
To establish a prima facie claim under CEPA, a plaintiff
must prove each of the following:
(1) he or she reasonably believed that his or her employer's conduct was violating
13 A-1253-16T3 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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).]
If a plaintiff makes this threshold showing, the burden
shifts to the defendant to set forth a legitimate non-
retaliatory reason for the adverse action. Klein v. Univ. of
Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div.
2005) (citation omitted). "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
(citation omitted).
Here, the motion judge found plaintiff had successfully
established the first element of a CEPA claim, and during oral
argument on their summary judgment motion defense counsel
conceded, "Nobody disputes, by the way, that Allen using a State
computer to download pornography is something that we don't want
to have. Nobody disputes that." The judge also determined that
14 A-1253-16T3 plaintiff successfully established the second element, finding
that her reports to OPS, "which is like an internal affairs
department," and EEO were protected whistleblowing activities.
However, the judge concluded plaintiff failed to establish the
third element because a promotion did not constitute an adverse
employment action.
CEPA defines retaliation as "the discharge, suspension[,]
or demotion of an employee, or other adverse employment action
taken against an employee in the terms and conditions of
employment." N.J.S.A. 34:19-2(e). However, as our Supreme
Court clarified, "the universe of possible retaliatory actions
under CEPA is greater than discharge, suspension, and
demotion[,]" as evidenced by the statute's express inclusion of
"other adverse employment action taken against an employee in
the terms and conditions of employment." Donelson v. DuPont
Chambers Works, 206 N.J. 243, 257 (2011) (quoting N.J.S.A.
34:19-2(e)).
Indeed, "adverse employment action" may include such things
as "making false accusations of misconduct, giving negative
performance reviews, issuing an unwarranted suspension, and
requiring pretextual mental-health evaluations[.]" Id. at 258.
In addition, an act of retaliation "need not be a single
discrete" event. Green v. Jersey City Bd. of Educ., 177 N.J.
15 A-1253-16T3 434, 448 (2003). Instead, an employee may point to "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."
Ibid. Thus, when deciding whether an employer's action
constitutes retaliation, courts should view the question "in
light of the broad remedial purpose of CEPA[.]" Donelson, 206
N.J. at 257.
However, "not every employment action that makes an
employee unhappy constitutes 'an actionable adverse action.'"
Nardello v. Twp. of Vorhees, 377 N.J. Super. 428, 434 (App. Div.
2005) (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J.
Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. Super. 245
(App. Div. 2003)). To 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)).
Incidents that cause a "bruised ego or injured pride[,]" Beasley
v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div. 2005)
(quoting Klein, 377 N.J. Super. at 46), or that make an
employee's job "mildly unpleasant" but do not have a substantial
16 A-1253-16T3 impact on the terms and conditions of employment, Hancock v.
Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002),
are insufficient to prove actionable retaliation.
Applying these principles, we agree with the motion judge
that plaintiff did not suffer an adverse employment action.
Plaintiff does not dispute that her transfer was not a demotion
and did not result in a loss of status, reduction in pay, or
diminution in job responsibilities. See Mancini v. Twp. of
Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002).
Nevertheless, plaintiff argues, her transfer from the DTIU to
the EMU was an adverse employment action because it put her "in
a worse position than she was before . . . physically,
monetarily[,] and [in] the nature of her employment." According
to plaintiff, had she not been transferred to the EMU, within a
few days, she would have become a Sergeant at the DTIU, where
she was "highly specialized," as evidenced by DeAngelis'
promotion five days after her transfer to the EMU.
Plaintiff cites the timing of the transfer and the EMU's
reputation as the unit of "misfits," as well as other
disadvantages from her transfer, as further proof that her
promotion was retaliatory. Specifically, she points out that
she transferred to the EMU as "Acting Sergeant," and therefore,
she would have to wait 120 days to receive the raise that
17 A-1253-16T3 accompanied the promotion. She also complains of a loss of
overtime opportunities due to the EMU's lighter workload, a
longer commute by twenty minutes, and a longer workweek, which
required her to incur additional childcare costs.
Plaintiff's grievances do not rise to the level of an
actionable adverse employment action because, by all accounts,
her transfer was a promotion. Plaintiff's complaints regarding
the EMU's reputation are akin to "a bruised ego or injured pride
on the part of the employee," which are not actionable
employment consequences under CEPA. Klein, 377 N.J. Super. at
46. Plaintiff's objection to her transfer and her belief that
her skills were better suited to the DTIU do not convert a
promotion to actionable retaliation. Mancini, 349 N.J. Super.
at 564-65 (holding that an adverse employment action does not
occur simply because an employee is unhappy).
Plaintiff's remaining complaints are similarly unavailing.
During her deposition, she admitted that she still had overtime
opportunities at the EMU, but had to apply for special
assignments instead of working on cases related to her unit.
This, in addition to the longer workweek with shorter days and
the twenty minutes added to her commute, might have made her job
"mildly unpleasant" but did not have a sufficient impact on the
terms and conditions of her employment to prove actionable
18 A-1253-16T3 retaliation. See Hancock, 347 N.J. Super. at 360.
Thus, we conclude plaintiff failed to establish a prima
facie case under CEPA, and the motion judge properly granted
summary judgment to defendants and properly denied plaintiff's
motion for reconsideration. Because of our conclusion, we need
not address plaintiff's arguments regarding the causal
connection between plaintiff's whistleblowing activity and the
transfer, defendants' purportedly pretextual reasons for the
transfer, or the denial of her reconsideration motion.
Affirmed.
19 A-1253-16T3