TROOPER JUSTINE POSER, ETC. VS. STATE OF NEW JERSEY, DIVISION OF STATE POLICE (L-0069-14, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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