A police officer in the City of East Orange in Essex County NJ, earlier this year sued the the City of East Orange Police Department and his supervisor under Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to - 14. The police officer alleged that he refused to comply with what he believed was an illegal command by his supervisor, and that his refusal constituted whistleblowing on an illegal act by his employer. His supervisor had instituted a police "productivity improvement system”. The police officer complained in reality it was an illegal “arrest quota system” and he refused to implement it.
The police officer had been employed by East Orange Police Department (EOPD) for over twenty years. At the time he initiated the lawsuit, he was employed as a lieutenant but was promoted to captain about five months later.
He believed the police "productivity improvement system” that his supervisor had ordered him and others to implement was an illegal arrest quota system which violated N.J.S.A. 40A:14-181.2.
He alleged that after he complained about and had refused to implement the police "productivity improvement system”, because of his complaints and refusal to implement what he alleged was an arrest quota system, his supervisor subjected him to severe and pervasive instances of retaliation, such as by ordering a neglect-of-duty investigation in connection with his alleged failure to complete an accident-reconstruction report, and by submitting a complaint to internal affairs about that incident even though the investigating officer had concluded the officer was correct in not submitting the report.
In filing a complaint in Superior Court, the officer, the plaintiff, alleged other numerous incidents of retaliation by the supervisor including but not limited to ordering him to increase "productivity" in terms of other police stops and arrests in a crime zone, issuing him a written "warning notice" for not increasing "productivity," and threatening to file neglect-of-duty charges against him for not filing a line-of-duty incident report regarding another officer even though it was the responsibility of a sergeant to submit the report. He also alleged that in an attempt to make him look incompetent, his supervisor berated him in front of the city's mayor and for allegedly neglecting his duty.
The officer subsequently filed an amended complaint, adding two others as defendants, the Public Safety Director and Chief of Police, and he added an additional retaliation allegation. He alleged that five months after he filed the initial complaint, one of the defendants told him EOPD was "skipping" over him to promote other lieutenants to captain. After the officer complained to Chief of Police and an East Orange councilperson, he was promoted to captain the next day.
At the Superior Court level, the defendants moved for summary judgment to get the case dismissed. They argued the plaintiff was mistaken in thinking EOPD was implementing an illegal quota system. They argued that the EOPD intended to use information regarding the number of arrests and citations as one, but not the only, criteria in evaluating an officer's performance. Defendants alleged that the officer did not like his increased workload. Defendants also contended plaintiff had not suffered any adverse employment action because he had been promoted to captain and, thus, could not establish a prima facie CEPA case.
In opposition, the police officer, plaintiff, argued that after whistleblowing about the arrest quota system, he was retaliated against, suffered baseless investigations, was issued bogus written warnings, was constantly threatened with discipline, and was deliberately made to look like an incompetent police officer. He also alleged financial retaliation., claiming he had been consistently assigned to the midnight shift since June 2018, thereby preventing him from working "traffic details," which caused him to lose $10,000 to $12,000 in compensation.
After hearing oral argument, the judge granted defendants' motions and dismissed the case. As to the first prong of CEPA, the judge found plaintiff reasonably had believed EOPD was implementing a quota system and that the "alleged unlawful conduct" had a "substantial nexus to [N.J.S.A. 40A]:14-181.2."However, as to the third prong, the judge determined the retaliatory acts alleged by the plaintiff were not sufficiently severe or pervasive and had not altered employment position in an important and material manner. The judge found, for example, he had not demonstrated a decrease in salary or status or a material alteration in his work environment. The judge concluded the alleged retaliatory conduct did not meet a standard that a reasonable juror could find that the terms of these acts are retaliatory in a material sense of his employment, and dismissed the case.
The police officer filed an appeal in the Appellate Division. On appeal, the officer assented that the judge erred in granting summary judgment to defendants which dismissed his case because a genuine issue of material fact exists as to whether the alleged adverse employment actions taken against him combine to make up a pattern of retaliatory conduct in violation of CEPA.
The Appellate Court in its unpublished opinion, focused on this third prong, whether defendants took an adverse employment action against the officer, because the lower court granted defendants' motions based on finding that the officer had failed to establish an adverse employment action. The Appellate Court disagreed with the dismissal on those grounds and stated:
In addition to "discharge, suspension, [and] demotion," CEPA includes in its definition of "'[r]etaliatory action' . . . other adverse employment action taken against an employee in the terms and conditions of employment." ... Contrary to the motion judge's conclusion, viewed in a light most favorable to plaintiff, a jury also could conclude plaintiff has demonstrated economic loss, a decrease in status, or a material alteration in his work environment."
The Appellate Court further stated that to satisfy CEPA's first prong, a plaintiff does not need to establish his or her employer or other employee "actually violated" a law but instead must demonstrate his or her own reasonable belief that a law was violated, i.e., the emphasis being that the belief must have been “reasonable”. The Appellate Court stated that the lower court correctly had found and affirmed that, a jury could find that the plaintiff met the first prong, that his belief was “reasonable”, and therefore the issue should be decided by a jury, and that the dismissal at that point was improper.
The Appellate Court found that his belief that his employer actually violated the law was “reasonable” and so affirmed the lower court as to that issue. The Appellate Court reversed as to the third prong, i.e., that a jury could find the retaliation to be sufficient to satisfy CEPA’s third prong and it remanded the case back to the Superior Court.
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