MICHAEL DOLINSKI v. BOROUGH OF WATCHUNG (L-1080-19, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-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).

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 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

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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."

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 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,

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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

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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

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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.

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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."

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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

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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

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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

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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.

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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.

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 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).

V.

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:

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 [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

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 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

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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;

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 (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

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 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

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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.

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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,

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 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

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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.

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 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

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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

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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

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 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.

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