NOT FOR PUBLICATION WITHOUT THE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-4024-18
RICK RUSSO,
Plaintiff-Appellant,
v.
CITY OF ATLANTIC CITY,
ANTHONY COX, and DALE
FINCH,
Defendants-Respondents.
__________________________
Submitted September 21, 2020 – Decided March 4, 2021
Before Judges Messano, Hoffman, and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1135-16.
Castellani Law Firm, LLC, attorneys for appellant
(David R. Castellani, on the brief).
Michael A. Armstrong & Associates, LLC, attorneys
for respondent City of Atlantic City (Morrison Kent
Fairbairn, on the brief).
Riley & Riley, attorneys for respondents Anthony Cox
and Dale Finch (Michael E. Riley, on the brief).
PER CURIAM
Plaintiff Rick Russo appeals from the April 12, 2019 Law Division order
granting the summary judgment dismissal of his complaint against defendants,
City of Atlantic City (the City), Anthony Cox, and Dale Finch. Plaintiff
contends the motion judge improperly found his claims barred by collateral
estoppel, the CEPA waiver provision, and the statute of limitations, and
otherwise lacked merit. We affirm.
I.
We discern the following facts from the record. Since 1994, the City
employed plaintiff in its Licensing and Inspection Department. The events that
gave rise to this lawsuit began in 2011; at the time, plaintiff worked in a civil
service position as a Supervising Field Representative. He reported to Gary
Alston, then the Chief Field Representative, who reported to Anthony Cox, then
the Director of Licensing and Inspection.
A.
In November 2011, Cox "wrote up" plaintiff for failing to report to his
superiors that a scheduled overtime inspection of a property was not performed
by Fred Sutton, an inspector supervised by plaintiff. On the Friday afternoon
before the scheduled inspection, Sutton advised plaintiff he did not feel well and
A-4024-18
2
could not perform the inspection. Plaintiff was going on a camping trip later
that day and left without notifying Cox that he could not find anyone to perform
the scheduled inspection. On October 14, 2011, Cox held recorded meetings
with plaintiff, Sutton, and Alston to discuss the missed inspection with each of
them individually. During his meeting, plaintiff asked Cox if they had to get
"every little thing" approved by him. Cox responded that plaintiff deprived Cox
of the opportunity to ensure that the inspection was completed on the scheduled
date. Plaintiff ultimately admitted at the meeting, "Okay, I'm wrong." In
November, Cox recommended "major" disciplinary action, a suspension of six
or more days. Plaintiff did not learn of the proposed disciplinary action until
months later, on April 16, 2012, when he received notice of the action.
Meanwhile, on March 1, 2012, an incident involving the property at 1600
Arctic Avenue (the Arctic Ave. property) occurred. At the time, plaintiff
supervised John Stinsman, who issued a notice of violation and order to abate
to the owner of the Arctic Ave. property. The building was vacant and partially
boarded-up; in accordance with regular procedure, the notice ordered the
property be "repair[ed] or demolish[ed]." Significant to this case, Cox was a
member of the LLC that owned the Arctic Ave. property. Plaintiff claimed he
did not know this fact – nor did he have any reason to know it – when he
A-4024-18
3
approved issuance of the notice. However, plaintiff did not sign the notice;
instead, he explained that he used Alston's signature stamp because, at the time,
Alston was on medical leave.
According to Cox, after the notice issued, his business partner forwarded
it to him. Recognizing the conflict of interest raised by his department
inspecting a property in which he maintained an ownership interest, Cox
"immediately" forwarded the notice to the City's Business Administrator.
Shortly thereafter, the Business Administrator, "just as [he had] done in other
cases," voided Stinsman's inspection due to the conflict, and contacted another
municipality to complete the inspection.
Cox testified that he did not know plaintiff was involved in the Arctic
Ave. property inspection as the notice does not bear plaintiff's name since he
used Alston's signature stamp. Cox further testified that he did not know Alston
was on medical leave when the notice was issued. When asked at his deposition
why he did not know Alston was on medical leave, Cox responded, "[w]hat I
did know was that I had four or five other divisions that I'm responsible for and
that a document shows up with [Alston's] name stamped and an inspector. That's
what I knew. That's all I knew."
A-4024-18
4
The Business Administrator issued an internal memo, dated March 30,
2012, advising Alston of the conflict concerning the Arctic Ave. property.
Plaintiff claimed he learned of Cox's ownership interest in the Arctic property
from this memo. Approximately two weeks later, on April 16, 2012, plaintiff
was served with the Notice of Disciplinary Action for his November 2011
absence.
In July 2012, plaintiff's disciplinary hearing was held. On August 20,
2012, the Hearing Officer found that plaintiff failed to notify his supervisors of
the inspection (an undisputed fact) and concluded that plaintiff was "guilty of
conduct unbecoming a public employee." Rather than impose major discipline,
however, the Hearing Officer imposed a one-day suspension.
Also in August 2012, plaintiff disagreed with Cox over an issue with a
property located at 117 South Martin Luther King Boulevard (the MLK Blvd.
property). An inspector under plaintiff's supervision previously cited the
property for insufficient electrical service. Plaintiff explained,
Every dwelling unit is required to have a 60[-]amp
service, a minimal 60[-]amp service per unit, as per the
International Property Maintenance Code, Chapter
60[.] Upon inspection of the building, it was
determined that the units only had a 40[-]amp service
to each unit, so the inspector cited the owner to upgrade
all units to a 60[-]amp service.
A-4024-18
5
Plaintiff further noted, "it's a very big violation . . . because [fixing the problem
required] such a massive upgrade to the [fifty-two-unit high rise] building," built
in 1929.
According to plaintiff, the owner of the MLK Blvd. property "petitioned
Cox to have a meeting to apply for an exemption so he wouldn't be required to
upgrade the electric." Plaintiff attended the meeting, held on August 2, 2012.
The property owner submitted documents showing the units were only drawing
twenty-seven amps per hour and, therefore, the forty-amp service was sufficient.
Cox granted the exemption at the meeting. According to plaintiff, "Cox
did not ask [plaintiff] or [the inspector who issued the citations] to speak on the
matter. He just said granted and that was the end of it."
Plaintiff, concerned that the exemption was inconsistent with the
International Property Maintenance Code (IPMC), wrote a memo to Alston, who
did not attend the meeting. At his deposition, plaintiff recounted,
A: I wrote a memo to Garry Alston questioning the
exemption that was granted and the manner in which it
was granted. The International Property Code has an
administrative chapter that explicitly details the steps
needed to grant an exemption and none of the steps
were taken in the granting of this exemption, including
the recording of the decision.
Q: Now did Mr. Alston respond to your memo?
A-4024-18
6
A: I believe he did.
Q: How did he do that?
A: He asked me to investigate it.
....
Q: And when did he ask you to investigate it?
A: Shortly after he received my memo.
Q: . . . [W]hat steps did he expect you or want you to
take to investigate it?
A: Well, he thought it might be a good idea to contact
the International Property Maintenance Council (the
ICC), of which I am a member of the committee[.] I'm
the contact for the City for the [IPMC] . . . . [S]o I sent
a letter to . . . the [IPMC] Council . . . and asked . . . a
hypothetical situation that was relevant to the [MLK
Blvd. property], whether or not an exemption should be
granted based upon the information that I had gathered
in reference to that meeting.
Plaintiff, at Alston's direction, contacted the ICC for an opinion on
whether the exemption complied with the IPMC. On September 12, 2012, the
ICC responded in writing to plaintiff. The letter opined that an exemption
should not be granted for "a 10 story 50[-]unit multi-family building built in
1929 [that] was cited for not having an electrical service rating of not less than
60 amperes." However, the ICC qualified its opinion by stating that it was based
A-4024-18
7
solely on the information plaintiff provided and did not include local, state, or
federal codes, policies, or amendments.
On September 27, 2012, plaintiff forwarded the letter he received from
the ICC to Alston, who then forwarded plaintiff's memo and the ICC letter to
Cox. Notwithstanding this letter, Cox maintained his opinion that the IPMC did
not apply to the MLK Blvd. electrical service issue. Before arriving at his final
decision, Cox consulted with State Inspector George Eaton, 1 Design Architect
Craig Dothe, Electrical Sub-Code Official Steve Keiner, and Deputy City
Solicitor Irv Jacoby.
In November 2012, Alston announced his retirement, effective at the end
of the month, and recommended to Cox that plaintiff fill his position. Upon
Alston's retirement in December 2012, plaintiff began performing Alston's
duties and Cox promoted him to the position of Acting Chief Field
Representative, with additional compensation. However, plaintiff contended he
should have been appointed to Alston's position – with a pay increase – rather
than serving "out-of-title" in an "acting" capacity.
1
A Supervisor with the Bureau of Housing Inspections in the Department of
Community Affairs, Eaton sent Cox an email, advising that he "checked on the
status of [the MLK Blvd.] property and it shows everything is in compliance[.]"
He further advised that "we do not follow or enforce any other code but our own
so we do not make any building conform to the [IPMC][.]"
A-4024-18
8
On January 29, 2013, plaintiff submitted a grievance concerning Cox's
failure to permanently appoint him to Alston's position. Shortly thereafter, he
also requested the Civil Service Commission (Commission) to perform a "desk
audit"2 concerning the same issue.
In March 2013, Cox removed plaintiff as Acting Chief, returning him to
the position he held before Alston's retirement, and posted a formal vacancy
announcement for Alston's position. Plaintiff described the way Cox removed
him as "very disrespectful." Cox informed plaintiff of his removal on a
Thursday, when he had a four-day vacation planned to start the following
Monday. Plaintiff testified that he expected to empty his desk and move offices
when he returned; instead, upon his return, he discovered that someone had
"go[ne] into my locked office, empt[ied] out my drawers that were all locked,
dump[ed] all of my personal stuff . . . in a big pile so that when I came back, I
was basically humiliated, because all the other inspectors saw that and they
thought geez." Plaintiff subsequently submitted another grievance over his
removal from the Acting Chief position.
2
Under N.J.A.C. 4A:3-3.9(a), an employee who believes that his or her "duties
. . . do not conform to the approved job specification for the title assigned to that
position" may request a review of his or her job classification. This review is
commonly referred to as a "desk audit."
A-4024-18
9
Plaintiff, along with three other people, formally applied for the
permanent position of Chief Field Representative. Cox interviewed plaintiff and
Kathleen Dierwechter, who tied with plaintiff for the number-one ranking on the
civil service list, for the position. Cox ultimately hired Dierwechter. Plaintiff
contends that Dierwechter was less qualified for the position because she, unlike
plaintiff, had no supervisory experience, and held fewer licenses.
B.
On June 25, 2013, plaintiff filed a complaint against the City and Cox in
federal court in the District of New Jersey. See Russo v. City of Atl. City, No.
13-3911, 2016 U.S. Dist. LEXIS 50056 (D.N.J. April 14, 2016). Plaintiff
asserted violations of 1) the First Amendment, pursuant to 42 U.S.C. 1983, and
2) the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A.
34:19-1 to -14. On April 14, 2016, Judge Renee Bumb granted defendants'
summary judgment motion as to plaintiff's federal claim and permitted the
parties to show cause as to exercising supplemental jurisdiction over plaintiff's
CEPA claim. Judge Bumb ultimately declined to exercise supplemental
jurisdiction over the CEPA claim and issued an order dismissing the CEPA
claim, without prejudice, on April 27, 2016.
A-4024-18
10
Meanwhile, on July 22, 2015, plaintiff reported to a continuing education
class, considered "official business," instead of work. Upon arrival, plaintiff
and three other employees learned they were not registered for the class and
went home.
The following day, Finch 3 – who had replaced Cox as Director of
Licensing and Inspection in 2014 – discovered that plaintiff and the other
employees did not return to work or contact their supervisors about the lack of
registration for the class; notably, plaintiff was the only supervisory employee
in the group. Accordingly, Finch considered the employees' actions a "no call,
no show" and did not pay them for that day. After the employees filed
grievances disputing the discipline, Finch filed formal disciplinary charges
against them, seeking a thirty-day suspension of plaintiff and a ten-day
suspension of the other employees. Finch also removed plaintiff from the "no
heat" calls list, which serves to provide employees with an opportunity to earn
3
In November 2013, a change in the City's administration resulted in Cox
returning to his previous position of Building Sub-Code Official; at that point,
he no longer retained any supervisory power over plaintiff. Following his
appointment, Finch restructured the department and discontinued the position of
Chief of Code Enforcement. In addition, plaintiff, as Supervising Field
Inspector, began supervising the Property Maintenance Department. In the new
role, plaintiff supervised a crew of inspectors who wrote notices of violation for
the exterior of properties throughout the City.
A-4024-18
11
additional pay; in addition, employees on the list received fifty dollars per week
along with a city issued cell phone. The disciplinary charges were ultimately
dropped against the other employees, but not plaintiff.
On May 25, 2016, plaintiff filed a complaint against the City, Cox, and
Finch in the Law Division. He alleged violations of 1) CEPA and 2) the New
Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. On April 12, 2019, the
trial court granted defendants' motion for summary judgment.
The judge dismissed the CRA claim, finding it barred by the CEPA waiver
provision. The judge reasoned the CRA claim was not substantially independent
of the CEPA claim because the CRA claim integrated the CEPA claim "as
specifically provided in paragraph 21 of [the CRA] complaint[.]"
The judge also addressed the res judicata and collateral estoppel defenses,
finding the federal court engaged in an analysis of the "identical" issues before
the court. Moreover, the judge found the CEPA claim barred by the statute of
limitations. Plaintiff filed his complaint in state court on March 25, 2016, and
although a "30-day tolling applied once the Federal Court declines to exercise
supplemental jurisdiction[,]" the judge found the federal court declined
supplemental jurisdiction on April 14, when summary judgment was granted
against plaintiff.
A-4024-18
12
Notwithstanding these procedural hurdles, the judge addressed plaintiff's
CEPA claim on the merits. Although finding that plaintiff established the first
two prongs necessary for a viable CEPA claim, the judge concluded that plaintiff
failed to establish the third prong, that he experienced an adverse employment
action. The judge therefore granted defendants' summary judgment motion,
finding "nothing in the record that raises a genuine issue as to any material fact
as it relates to the MLK [Blvd.] property, the Arctic Avenue property, or . . . any
perceived retaliation, which this [c]ourt finds did not exist."
This appeal followed.
II.
As a preliminary matter, we agree with plaintiff's contention that the
motion judge erred when he concluded that the thirty-day statute of limitations
applied to bar plaintiff's claims. See Artis v. Dist. of Columbia, 138 S. Ct. 594,
598 (2018). Although Judge Bumb granted the summary judgment dismissal of
plaintiff's federal claim on August 14, 2016, she invited further consideration of
his CEPA claim and did not dismiss that claim until April 27, 2017. Plaintiff
timely filed the matter under review on May 25, 2017, within thirty days of the
April 27 dismissal order. Apart from that issue, we conclude the motion judge
A-4024-18
13
correctly determined that plaintiff's claims are barred the CEPA waiver
provision and by collateral estoppel, and otherwise lack merit.
Under CEPA's waiver provision, "the institution of an action in
accordance with [CEPA] shall be deemed a waiver of the rights and remedies
available under any other contract, collective bargaining agreement, State law,
rule or regulation or under the common law." N.J.S.A. 34:19-8. The provision
"applies only to those causes of action that require a finding of retaliatory
conduct that is actionable under CEPA. The waiver exception does not apply to
those causes of action that are substantially independent of the CEPA claim."
Young v. Schering Corp., 141 N.J. 16, 29 (1995). "Parallel claims based on
those rights, privileges[,] and remedies are waived because they represent
multiple or duplicative claims based on retaliatory discharge." Ibid.
Here, plaintiff relies on the same facts for his CRA and CEPA claims;
both claims allege retaliation for plaintiff's claimed whistleblowing activity
regarding the Arctic Ave. and MLK Blvd. properties. Adding Finch as a
defendant does not make the CRA claim sufficiently distinguishable. Plaintiff
simply argues Finch disciplined him because of Finch's alleged "political
associat[ion]" with Cox and in retaliation for asserting his right "to file and
A-4024-18
14
pursue grievances[.]" Ultimately, plaintiff failed to present a claim independent
of the CEPA claim.
"Collateral estoppel . . . bars relitigation of any issue which was actually
determined in a prior action, generally between the same parties, involving a
different claim or cause of action." Div. of Youth & Fam. Servs. v. R.D., 207
N.J. 88, 114 (2011) (quoting State v. Gonzalez, 75 N.J. 181, 186 (1977)). In
Gannon v. Am. Home Prod., 211 N.J. 454, 469 (2012), our Supreme Court
resolved "the question about the proper analytical framework for testing the
collateral estoppel effect of federal judgments," making it clear "the issue is
governed by reference to federal rather than to state law principles."
The Third Circuit held that, for a judgment to be given the effect of
collateral estoppel, there must be a coalescence of the following four factors:
(1) the identical issue was decided in a prior
adjudication; (2) there was a final judgment on the
merits; (3) the party against whom the bar is asserted
was a party or in privity with a party to the prior
adjudication; and (4) the party against whom the bar is
asserted had a full and fair opportunity to litigate the
issue in question.
[Id. at 471-72 (quoting Del. River Port Auth. v. FOP,
Penn-Jersey Lodge 30, 290 F.3d 567, 574 n.10 (3d Cir.
2002)).]
A-4024-18
15
A party establishes an issue is identical by demonstrating "that the same
general legal rules govern both cases and that the facts of both cases are
indistinguishable as measured by those rules." Suppan v. Dadonna, 203 F.3d
228, 233 (3d Cir. 2000) (quoting Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4425 at 253 (1981)). The
existence of an additional element in a federal cause of action as opposed to the
analogous state law cause of action "does not alter" the fact that the issues are
identical. Hailey v. City of Camden, 650 F. Supp. 2d 349, 356 (D.N.J. 2009)
(holding that proving a hostile work environment under 42 U.S.C. 1983 is
identical to the analogous cause of action under the CRA). "To defeat a finding
of identity of the issues for preclusion purposes, the difference in the applicable
legal standards must be substantial." Id. at 354 (citation omitted).
Here, a common set of facts gave rise to both plaintiff's First Amendment
and CEPA claims. Although Judge Bumb specifically declined to consider the
pendent state law claims, she nevertheless analyzed whether plaintiff
experienced retaliation for engaging in protected speech.
First, plaintiff’s CEPA claims against Cox arising from the Arctic Ave.
property are precluded by the federal court decision. When analyzing plaintiff's
First Amendment claim, Judge Bumb found "the record evidence fails to support
A-4024-18
16
a finding that Cox retaliated against [plaintiff] for approving the citation of [the
Arctic Ave. property]." Russo, 2016 U.S. Dist. LEXIS 50056, at 23. Under
CEPA, plaintiff asserts this identical claim. Moreover, plaintiff failed to present
any additional evidence on the matter for his related CEPA claims. The essential
issue of plaintiff's CEPA claim arising from the Arctic Ave. property citation
was already litigated and is precluded by collateral estoppel.
Similarly, plaintiff's CEPA claim arising from his filed grievances are also
precluded by the federal court decision. CEPA protects only whistleblowing
activity, and plaintiff alleges his rights were violated under CEPA because he
experienced retaliation, in part, for filing grievances. Estate of Roach v. TRW,
Inc., 164 N.J. 598, 609-10 (2000). Although Judge Bumb did not specifically
address whether plaintiff’s grievances were CEPA whistleblowing, she did
address the exact same issue – whether Cox retaliated against him for filing
grievances – under the First Amendment. Accordingly, the judge held that his
grievances "did not involve a matter of public concern." Russo, 2016 U.S. Dist.
LEXIS 50056, at 18.
CEPA does not protect wholly private grievances. See Maw v. Advanced
Clinical Comm., Inc., 179 N.J. 439, 445 (N.J. 2004) ("[T]he complained of
activity must have public ramifications, and that the dispute between employer
A-4024-18
17
and employee must be more than a private disagreement."); Mehlman v. Mobil
Oil Corp., 153 N.J. 163, 188 (1998) ("[T]he offensive activity must pose a threat
of public harm, not merely private harm or harm only to the aggrieved
employee."); Beasley v. Passaic Cnty., 377 N.J. Super. 585, 607 (App. Div.
2005) (noting that CEPA is not intended to "settle internal disputes at the
workplace" (internal quotation omitted)). Thus, we are satisfied the public
concern inquiry under the First Amendment is "very similar" to the
whistleblowing inquiry under CEPA. Espinosa v. Cnty. of Union, 212 Fed.
App'x 146, 153 (3d Cir. 2007). Given this similarity, Judge Bumb's public
concern inquiry applies to his CEPA claims as well; the same relevant factual
and legal issues relating to plaintiff's grievances were decided and dismissed.
Therefore, we conclude that plaintiff's related CEPA claims are precluded by
collateral estoppel. Nevertheless, like the motion judge, we will also address
the merits.
III.
We review a grant of summary judgment under the same standard as the
trial judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must
determine whether there are any genuine issues of material fact when the
evidence is viewed in the light most favorable to the non-moving party. Id. at
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18
38, 41. "The inquiry is 'whether the evidence presents a sufficient disagreement
to require submission to a [finder of fact] or whether it is so one-sided that one
party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell
Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted).
"[T]he legal conclusions undergirding the summary judgment motion itself" are
reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas.
Ins. Co., 202 N.J. 369, 385 (2010).
CEPA prohibits an employer from taking "retaliatory action" against an
employee for protected whistleblower conduct. N.J.S.A. 34:19-3. To establish
a prima face case under CEPA, a plaintiff must prove four elements: 1) the
plaintiff reasonably believed that the employer's conduct violated "either a law,
rule, or regulation promulgated pursuant to law, or a clear mandate of public
policy"; 2) the plaintiff "performed a 'whistle-blowing' activity"; 3) the plaintiff
experienced an adverse employment action; and 4) "a causal connection exists
between the whistle-blowing activity and the adverse employment action."
Yurick v. State, 184 N.J. 70, 78 (2005) (citation and internal quotation marks
omitted).
A-4024-18
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The motion judge found that plaintiff proved the first two prongs with
respect to the ICC opinion letter,4 but concluded that plaintiff failed to prove he
sustained an adverse employment action. Under CEPA, a retaliatory action is
defined 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). Here, plaintiff alleges that, in
retaliation for the ICC opinion, Cox removed him from the Acting Chief
position, failed to promote him to the permanent position, and subjected him to
a hostile work environment.
Plaintiff's relies on Maimone v. City of Atl. City, where our Supreme
Court found that a superior transferring an employee and causing a reduction in
compensation was an adverse employment action. 188 N.J. 221, 236 (2006);
however, Maimone is distinguishable. Although removing plaintiff from the
Acting Chief position affected plaintiff's responsibilities and compensation, the
record clearly demonstrates that plaintiff's position was temporary. Plaintiff had
4
The City and Cox do not concede that plaintiff had a reasonable belief that
unlawful activity had occurred regarding the MLK Blvd. property or that the
exemption Cox approved created a threat to the public. We agree with the City
that "[t]he record is replete with evidence to the contrary." We need not review
this evidence because the motion judge correctly concluded that the record
establishes that plaintiff failed to prove he sustained an adverse employment
action as the result of his claimed whistle-blowing activity.
A-4024-18
20
previously served in this temporary position when Alston was on sick leave. As
plaintiff himself complains, he performed the duties of this position "out of title"
in an "acting" capacity. Because plaintiff was never promoted to this position,
he could not be demoted from it. We are satisfied that plaintiff's removal from
the Acting Chief position did not constitute an adverse employment action .
Plaintiff's failure-to-promote claim fares no better. To establish a prima
facie case of retaliation by failure to promote, a plaintiff must prove "by the
preponderance of the evidence that . . . [his] engagement in the protected activity
was a cause of the promotion denial." Jamison v. Rockaway Twp. Bd. of Educ.,
242 N.J. Super. 436, 447 (App. Div. 1990) (citation omitted).
The record shows that plaintiff sent the ICC opinion letter to Alston in
September 2012. Nevertheless, in December, Cox placed plaintiff in the Acting
Chief position. The New Jersey Civil Service, an independent governmental
unit, found plaintiff and Dierwechter equally qualified for the position. While
Alston recommended to Cox that plaintiff fill his position, Cox testified that he
did not follow Alston's recommendation because he felt Alston and plaintiff
"were defiant to [his] authority as director since" his appointment in 2009, by
"show[ing] up for hearings unprepared" or not showing up at all. Both
Dierwechter and plaintiff were interviewed, and Dierwechter was ultimately
A-4024-18
21
hired in March 2013. Since the employee selected for the Chief Field
Representative position was determined by the Civil Service Commission to be
equally qualified for the position, plaintiff’s claim that he was passed over by
someone unqualified for this position clearly lacks merit and provides no
circumstantial evidence of retaliation.
Lastly, plaintiff failed to establish a hostile work environment. "[I]n order
to be actionable, an allegedly retaliatory act [of hostile work environment] 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)).
Plaintiff presented no evidence from which a reasonable factfinder could
find that he was subjected to acts so severe or pervasive that they altered the
conditions of employment in a significantly adverse manner. Plaintiff
complains of being locked out of his former office after being removed from the
Acting Chief position and having his belongings moved, and being taken off "no
heat" calls list and losing the related phone allowance. However, such conduct
A-4024-18
22
does not rise to the level of an adverse employment action 5 under CEPA. See
Beasley, 377 N.J. Super. at 607 (noting that conduct that results in a "bruised
ego or injured pride" is not an actionable under CEPA).
Therefore, we are satisfied the trial court correctly found plaintiff's CEPA
claims failed as a matter of law because plaintiff failed to establish that he
suffered any adverse employment action cognizable under CEPA. Plaintiff's
remaining claims were properly procedurally barred by collateral estoppel and
the CEPA waiver provision.
Affirmed.
5
We find significant that plaintiff never received a discharge, suspension or
demotion. Rather, his theory of adverse employment action is first predicated
on the fact that defendants Cox and Finch both instituted disciplinary actions
against him, ignoring the fact there was a substantial basis for both actions.
However, "filing a CEPA claim 'does not insulate the complaining employee
from discharge or other disciplinary action for reasons unrelated to the
complaint.'" Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360-61 (App.
Div. 2002) (quoting Higgins v. Pascack Valley Hosp., 158 N.J. 404, 424 (1999)).
The fact the charges were ultimately substantiated precludes plaintiff from
asserting that the disciplinary actions constituted wrongful acts of retaliation.
See Hancock, 347 N.J. Super. at 361.
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