MICHAEL DEPIETRO VS. ALLSTATE INSURANCE COMPANY (L-3089-11, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3046-15T3
FREDDIE MITCHELL,
Plaintiff-Respondent,
v.
BOROUGH OF ROSELAND
POLICE DEPARTMENT,
Defendant-Appellant.
_____________________________________
Argued February 14, 2017 – Decided March 15, 2017
Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-8140-
14.
R. Scott Fahrney argued the cause for
appellant (Kaufman, Semeraro & Leibman,
L.L.P., attorneys; Mr. Fahrney and Mark J.
Semeraro, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant Borough of Roseland Police Department (RPD) appeals
from an order entered by the Law Division on February 19, 2016,
which denied its motion for reconsideration of an order dated
December 17, 2015, setting aside a reprimand and an eight-day
suspension that the RPD imposed upon plaintiff Freddie Mitchell.
We reverse.
We briefly summarize the relevant facts and procedural
history. Since approximately 2000, Mitchell has been an officer
in the RPD. On January 26, 2012, the RPD charged Mitchell with
insubordination, specifically, failing and refusing to comply with
an order of Captain Kevin M. Kitchin to sign a performance notice
regarding Mitchell's use of sick leave in 2011. Mitchell pled not
guilty to the charge, and on April 9, 2012, a disciplinary hearing
was conducted on the matter.
Thereafter, the hearing officer issued a written decision,
finding Mitchell guilty of insubordination. The hearing officer
recommended an eight-day suspension without pay, with a warning
that similar conduct in the future will result in more severe
disciplinary punishment. On May 7, 2012, the RPD's Chief of Police,
Richard J. McDonough, accepted the hearing officer's
recommendation, and issued a written reprimand and an eight-day
suspension without pay.
Mitchell then filed an action in lieu of prerogative writs
in the Law Division seeking a trial de novo pursuant to N.J.S.A.
40A:14-150. The court issued a written decision on February 18,
2014, noting that a transcript had not been made of the
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disciplinary hearing, and the hearing officer's decision and
copies of the exhibits did not provide an adequate record for
review of the disciplinary action. The court entered an order
dated March 5, 2014, remanding the matter to the RPD for a
rehearing on the record.
The hearing took place on June 13, 2014. Sergeant Charles
Ribaudo testified that the RPD conducted an audit of its officers'
use of sick time in 2011, and thereafter issued performance notices
to several officers, including Mitchell. Ribaudo explained that
when he provides such a notice to an officer, he meets with the
officer to go over the narrative section of the document. Ribaudo
then signs the notice where it states, "Issued by _________,"
and the officer signs where it states, "Received by ________."
Ribaudo testified that on January 25, 2012, he met with
Mitchell to give him the performance notice about his use of sick
time in 2011. Mitchell refused to sign the notice. Ribaudo said
he explained to Mitchell that by signing the notice, he was only
acknowledging receipt of the document. Mitchell told Ribaudo he
did not accept the reprimand and he was not going to sign the
notice.
Mitchell asked Ribaudo about the reasons for the reprimand,
but Ribaudo could not answer Mitchell's question because he did
not prepare the notice. He told Mitchell he would seek an answer
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for him. Ribaudo then reported the matter to Kitchin, and another
meeting was scheduled to give Mitchell a second chance to sign the
document.
Ribaudo testified that he and Kitchin met with Mitchell on
January 26, 2012. At the meeting, Kitchin ordered Mitchell to sign
for receipt of the performance notice. Mitchell refused to comply
with Kitchin's order. According to Ribaudo, Mitchell did not
indicate he was going to speak with a union representative until
he was leaving the meeting.
Kitchin testified that in January 2012, three officers
received performance notices regarding their use of sick leave in
2011. According to Kitchin, the notices are a training tool, which
recognize good performance or suggest the need to "correct the
things that [are not] so good so they [do not] turn into major
problems." Kitchin stated that the RPD's usual procedure is to
have the notice typed and given to the officer, and then the person
giving the notice to the officer signs it. Thereafter, the officer
signs the document indicating that he received it.
Kitchin testified that Ribaudo had reported to him that
Mitchell refused to sign his performance notice because Mitchell
"said he had an issue with it." Kitchin asked Ribaudo if he
explained to Mitchell that by signing the notice, Mitchell was
only acknowledging that he had received it. Kitchin testified that
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signing the notice had nothing to do with whether Mitchell agreed
or disagreed with the notice.
Kitchin further testified that he spoke to the Chief and he
was instructed to schedule a meeting with Mitchell. The purpose
of the meeting was to give Mitchell another opportunity to sign
the notice. On January 26, 2012, Kitchin met with Ribaudo and
Mitchell. At the meeting, Kitchin asked Mitchell if he had spoken
to Ribaudo about the notice, and Mitchell said he had. Kitchin
asked Mitchell if he was going to sign the document, and Mitchell
said he would not.
Kitchin asked Mitchell if Ribaudo had explained to him that
signing the notice only indicated that he had received it, and it
had nothing to do with whether he agreed or disagreed with the
notice. According to Kitchin, Mitchell said he had spoken to
Ribaudo "about that."
Kitchin further testified that he asked Mitchell why he
refused to sign the notice, and Mitchell replied that he did not
agree with the reprimand. Kitchin explained again that Mitchell
was only signing the notice to indicate he had received it, and
that his signature had nothing to do with whether he agreed or
disagreed with the reprimand. Mitchell again refused to sign the
notice.
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Kitchin then ordered Mitchell to sign the notice, with the
understanding that he was signing for receipt of the notice, and
his signature did not have anything to do with whether he agreed
or disagreed with the notice. Kitchin again asked Mitchell if he
would sign the notice. Mitchell replied, "No." Kitchin then said
the meeting was over. Mitchell stated he was going to call the
union's attorney, and he left.
Mitchell testified that on January 25, 2012, Ribaudo
presented him with the performance notice. Mitchell asked him to
clarify the reason for the reprimand, but Ribaudo did not prepare
the notice and he did not have any knowledge about it. Mitchell
said he did not have an advance "warning" he would receive the
notice.
Mitchell also testified that there was no evidence or proof
that he had abused sick time. He said the RPD had no standard
operating procedure or memo regarding excessive sick time. He
claimed that anytime he had used sick leave, the RPD had signed
off on it. He asserted that he had supplied doctors' letters and
documents for his use of sick leave.
Mitchell said the performance notice did not set forth the
RPD's sick leave policy, the amount of sick leave allowed, or the
amount of sick leave he had taken in the previous year. Mitchell
claimed that previously, an officer had signed a performance notice
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and the notice had been used as a disciplinary action against the
officer.
Mitchell conceded that in the past, he had signed a
performance notice with a reprimand regarding his cell-phone use.
Mitchell signed that notice because it came with a memo, which
provided a statement of reasons for the reprimand. He said he
refused to sign the performance notice regarding sick time because
he asked for clarification. He said his refusal to sign the notice
was not insubordination.
Mitchell further testified that when he met with Kitchin,
Kitchin asked him why he had refused to sign the notice. Mitchell
conceded that Kitchin gave him a second chance to sign the
document, but he refused to do so because he was still "asking"
for "clarity." Mitchell stated that Kitchin told him his signature
was a mere formality to acknowledge receipt.
Nonetheless, Mitchell said he was not comfortable signing the
document because "there [was] no clarification [as] to why [he]
even got the reprimand." Mitchell stated that he would not sign
and that he was going to call the union's attorney. Then, he
"walked out."
On cross-examination, Mitchell was asked to explain the
circumstances when his signature on a performance notice had been
used against him. He claimed the Chief of Police had used his
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signature "as a retaliatory tool." He said he had been in
litigation with the RPD for the previous four or five years. He
claimed the Chief was creating a paper trail on all officers in
the RPD who had pending lawsuits against the department.
The hearing officer thereafter issued another decision,
finding that Mitchell "clearly disobeyed" Kitchin's order to sign
the performance notice. The hearing officer found that the order
was lawful and clear. He also found that the meetings with Ribaudo
and Kitchin were not an investigation. The hearing officer stated,
"The purpose of the meetings [was] to issue the performance
notice/reprimand and as acknowledgment of its receipt[,] obtain a
signature by the officer."
The hearing officer noted that Mitchell had not written a
report disagreeing with the reprimand, and he had not filed a
grievance challenging it. The hearing officer pointed out that
Mitchell had the entire evening between the two meetings to seek
legal advice, but he did not do so.
The hearing officer also stated that a police department is
a quasi-military operation, where compliance with all lawful
orders is required. He wrote, "It is incumbent upon all members
of the department to comply with any and all lawful orders,
regardless of the form they are presented in (request, direct
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order, written order, verbal order, rules and regulations,
attorney general[] directives, etc.)."
The hearing officer stated that, "A [p]olice [o]fficer must
follow all lawful orders and if [the officer has] a problem with
a particular order, [he may] seek grievance or other remedy after
following the order." The hearing officer found that Mitchell
understood the order but refused to obey. He found the RPD had met
its burden of proof, and Mitchell was guilty of insubordination.
The hearing officer stated that the eight-day suspension was "still
appropriate."
On December 17, 2015, the trial judge heard oral argument on
the matter and placed a decision on the record. The judge reviewed
the testimony presented at the hearing and other evidence. The
judge stated that the notice was a reprimand, not a form
acknowledging receipt of the notice. She said the form used did
not provide the factual basis for the reprimand.
The judge also stated that Mitchell did not believe the
reprimand was correct, and Mitchell did not believe he had violated
the RPD's sick-leave policy. The judge said that Mitchell had
requested clarification before he signed the reprimand, and
clarification was not provided. The judge found that Mitchell
expected to receive clarification from Ribaudo. She stated,
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"[t]here was no reason for [Mitchell] to contact his union
representative pending receipt of that clarification."
The judge also stated that there was no evidence that Ribaudo
advised Kitchin that Mitchell had asked for clarification. The
judge said that there was no "general order" or regulation that
required Mitchell to sign the reprimand. Receipt could have been
memorialized by either Ribaudo or Kitchin, since they both
witnessed Mitchell's receipt of the form.
The judge found that Mitchell had made a timely request for
union representation pursuant to the principles set forth in NLRB
v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d
171 (1975), and applied in New Jersey as a matter of state law.
The judge observed that Weingarten held that an employee has a
right to union representation during an interview when the employee
reasonably believes the "investigation" will result in
disciplinary action. The judge stated that Mitchell's meeting with
Ribaudo and Kitchin was "an investigation" for Weingarten
purposes.
The judge found that the RPD violated Mitchell's Weingarten
rights because he was not given the opportunity to have union
representation at the meeting with Ribaudo and Kitchin. The judge
also found that the RPD did not prove by a preponderance of the
evidence that Mitchell was insubordinate or that he failed to obey
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a lawful order. The judge found that initially, Ribaudo
misunderstood or misrepresented the significance of the officer's
signature on the form.
The judge entered an order dated December 17, 2015, which set
aside the suspension and ordered the RPD to provide Mitchell with
back pay and benefits for the period of the suspension. The RPD
thereafter filed a motion for reconsideration. The judge denied
that motion by order entered on February 19, 2016. On the order,
the judge wrote that the RPD had not met the criteria for
reconsideration. This appeal followed.
On appeal, the RPD argues that the trial court erred by
finding that the RPD violated Mitchell's Weingarten rights. The
RPD contends that Mitchell's meeting with Ribaudo and Kitchin was
not an investigation of any kind. The RPD further argues that the
record does not support the trial court's finding that Mitchell
was not guilty of insubordination. The RPD contends Mitchell
violated a direct order by refusing to sign the form.
The Borough of Roseland is a non-civil service jurisdiction,
and the statutory framework for disciplinary proceedings against
police officers in the Borough is governed by N.J.S.A. 40A:14-147
to -151. Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338,
343 (2013). The statutory scheme requires the employer to show
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"just cause" for any suspension, termination, fine, or reduction
in rank. Id. at 354 (citing N.J.S.A. 40A:14-147).
An officer is entitled to a hearing on the charges. Ibid.(citing N.J.S.A. 40A:14-147). If the charges are sustained after
the hearing, the officer can seek review in the Superior Court,
which hears the case de novo on the record established below. Id.at 355 (citing N.J.S.A. 40A:14-150). The trial court must, however,
make its own findings of fact. Id. at 357 (citing In re
Disciplinary Proceedings of Phillips, 117 N.J. 567, 578 (1990)).
When the trial court conducts its review of the record, it
should give due deference to the hearing officer's conclusions
regarding credibility, but "those initial findings are not
controlling." Id. at 357 (quoting Phillips, supra, 117 N.J. at
579). The court must "make reasonable conclusions based on a
thorough review of the record." Ibid. (quoting Phillips, supra,117 N.J. at 580). The court is required to provide the officer "an
independent, neutral, and unbiased" review of the disciplinary
action. Ibid. (citing Phillips, supra, 117 N.J. at 580).
Findings of fact of a trial judge, sitting without a jury,
will not be disturbed on appeal if they are supported by "adequate,
substantial and credible evidence" in the record. Township of West
Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
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(1974)). However, the trial court's legal determinations are not
entitled to any special deference. Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, the trial court erred by finding that the RPD violated
Mitchell's right to union representation. In Weingarten, the Court
held that an employer's failure to provide union representation
at an investigatory interview violated the National Labor
Relations Act (NLRA) since the employee had asked for union
representation and reasonably believed that the investigation
might result in disciplinary action. Weingarten, supra, 420 U.S.
at 256-60, 95 S. Ct. at 963-65, 43 L. Ed. 2d at 177-80 (citing 29
U.S.C.A. § 157).
The NLRA does not apply to public employees in New Jersey.
In re Univ. of Med. & Dentistry of N.J., 144 N.J. 511, 527 (1996).
However, the New Jersey Public Employment Relations Commission
(PERC) adopted the Weingarten rule, in the exercise of its
authority under the New Jersey Employer-Employee Relations Act,
N.J.S.A. 34:13A-1 to -43. In re Univ. of Med. & Dentistry of N.J.,
supra, 144 N.J. at 527. The Supreme Court held that PERC's
application of the Weingarten rule was a "permissible
construction" of New Jersey law. Id. at 528.
It is undisputed that Mitchell would have been entitled to
union representation at the January 26, 2012 meeting with Ribaudo
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and Kitchin if that meeting had been an investigation and Mitchell
reasonably believed it might result in disciplinary action. Id.at 529 (citing Weingarten, supra, 420 U.S. at 252-53, 95 S. Ct.
at 961-62, 43 L. Ed. 2d at 175). Here, however, the trial court
erred by finding the RPD violated Mitchell's Weingarten rights.
As the record shows, the January 26, 2012 meeting was not
investigatory. Ribaudo met with Mitchell on January 25, 2015. He
presented Mitchell with the written reprimand and asked Mitchell
to sign the form where it states, "Received by ________." Mitchell
refused to sign the notice, and Ribaudo reported that to Kitchin.
The meeting the following day was held to give Mitchell
another opportunity to sign the form. He again refused, even though
Kitchin had explained to him that he was required to sign the form
regardless of whether he agreed or disagreed with the basis for
the reprimand.
Kitchin told Mitchell that his signature was only to confirm
that he had received the form. Mitchell said he sought
clarification of the reason for the reprimand, but Kitchin made
clear that the meeting was only being held to give Mitchell an
opportunity to sign the form acknowledging that he had received
the written reprimand.
Thus, Mitchell's meeting with Ribaudo and Kitchin was not an
investigation for Weingarten purposes. That meeting was only held
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to afford Mitchell another opportunity to sign the reprimand,
indicating he had received it. Furthermore, Mitchell did not make
a timely request for union representation. He did not indicate
that he wanted to speak to a union representative until after he
refused to comply with Kitchin's order that he sign the document.
We also conclude that the trial court erred by finding that
Mitchell was not insubordinate. Mitchell's testimony makes
abundantly clear that he did not agree with the reprimand. Mitchell
stated that the notice failed to provide the factual basis for his
misuse of sick leave in 2011. He claimed that, when necessary, he
had provided the RPD with a doctor's note for the use of sick
time.
It is clear that Mitchell refused to sign the form, not
because his signature might be used against him in some other
disciplinary matter, but rather because he believed the reprimand
was not justified. This was not a valid reason for refusing to
comply with the order that he sign the document and acknowledge
its receipt. It is undisputed that Kitchin told Mitchell his
signature was merely an acknowledgement of receipt, not an
agreement to the reprimand.
The RPD could have used an alternative means to confirm that
Mitchell had been provided with the notice, but it was not required
to do so. Kitchin issued a lawful order to Mitchell directing him
15 A-3046-15T3
to sign the notice. He refused to comply. Mitchell's request for
clarification of the reasons for the reprimand has no bearing on
his refusal. The January 26, 2012 meeting was held to obtain his
signature, not to discuss the reasons for the reprimand. The record
shows that Mitchell had other ways to obtain the clarification he
was seeking. His request for clarification was not an excuse for
refusing a lawful order that he sign the document.
Accordingly, we reverse the trial court's orders of December
17, 2015, and February 19, 2016, and reinstate Mitchell's eight-
day suspension without pay.
Reversed.
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