MICHAEL FROMOSKY VS. TOWNSHIP OF LITTLE EGG HARBOR (L-0723-17, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-5028-17T2
MICHAEL FROMOSKY,
Plaintiff-Respondent,
v.
TOWNSHIP OF LITTLE EGG
HARBOR, EUGENE KOBRYN,
and DAVE SCHLICK,
Defendants,
and
RICHARD BUZBY and
GARRETT LOESCH,
Defendants/Third-Party
Plaintiffs-Appellants,
v.
LITTLE EGG HARBOR TOWNSHIP,
MICHAEL FROMOSKY, JOHN KEHM,
and RAYMOND GORMLEY,
Third-Party Defendants-Respondents.
Argued September 17, 2019 – Decided November 14, 2019
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-0723-17.
John J. Novak argued the cause for appellants (John J.
Novak, attorney; John J. Novak and Deborah A. Plaia,
on the briefs).
Jennifer M. Carlson argued the cause for respondent
Michael Fromosky (Richard M. Pescatore, PC,
attorneys; Jennifer M. Carlson, on the brief).
Erin Thompson argued the cause for respondents Little
Egg Harbor Township, John Kehm, and Raymond
Gormley (Birchmeier & Powell LLC, attorneys; James
Robert Birchmeier, on the brief).
PER CURIAM
This appeal arises out of a series of complaints made by employees of the
Township of Little Egg Harbor (Township). The named plaintiff, Michael
Fromosky, is the Township's Code Enforcement Officer. Ultimately, he settled
his claims. As a consequence, the claims at issue on this appeal are
counterclaims and third-party claims filed by Richard Buzby and Garrett
Loesch.
Buzby is the Township Chief of Police and Loesch was the Township
Business Administrator and Chief Financial Officer. They asserted claims
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against Fromosky, the Township, John Kehm, and Raymond Gormley. The
latter two individuals are members of the Township committee. Buzby and
Loesch appeal from five orders entered on February 2, 2018, and March 29,
2018. Those orders (1) granted summary judgment to Fromosky; (2) denied
reconsideration of that summary judgment order; (3) dismissed the third -party
complaint as to all third-party defendants for failure to state a claim; (4) denied
Buzby and Loesch's motion for leave to file an amended third-party complaint
against Fromosky; and (5) denied Buzby and Loesch's motion for leave to amend
the third-party complaint against all third-party defendants. Having reviewed
the arguments of the parties in light of the record and law, we affirm.
I.
We take the facts from the record developed on the motions and view them
in a light most favorable to Buzby and Loesch, the non-moving parties. Loesch
and Buzby alleged that they were retaliated against by Fromosky, Gormley, and
Kehm as a result of reporting alleged wrongful conduct engaged in by Kehm.
The initial report of the wrongful conduct occurred in 2014, when Loesch
reported that conduct to Buzby. Buzby, in turn, sent a letter to the Ocean County
Prosecutor's Office. Buzby and Loesch then alleged that they were subjected to
retaliatory acts, which occurred between September 2015 and September 2016.
A-5028-17T2
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They also contend that during that same period of time they were slandered.
Accordingly, we will summarize the relevant letters sent by, and
communications made by, Buzby and Loesch between March 2015 and
September 2016, as well as the alleged resulting retaliation and slander.
The initial report of alleged misconduct was made by Buzby in a letter he
sent to the Ocean County Prosecutor, dated March 10, 2015. Buzby asserted that
Kehm was retaliating against him and causing "an adverse effect on [the
Township's] police operations." Buzby reported that in May 2014, Loesch had
advised him that "he believed Kehm may have been improperly collecting
FEMA rental assistance while remaining in the same home he claimed to be
displaced from." Buzby explained he was unable to investigate Loesch's claim
against Kehm because Kehm was Buzby's "appropriate authority." Accordingly,
to address Loesch's concern, Buzby contacted his "other appropriate authority,"
Committeeman Gormley, who confronted Kehm. Buzby went on to report that
Kehm had denied any wrongdoing when confronted by Gormley.
Buzby informed the prosecutor that Loesch had also reported that "Kehm
had applied for, and received, a property tax abatement on his damaged home."
Buzby explained that, according to Loesch, "Kehm . . . received a 90% tax
reduction on the value of his damaged home[,]" which he was not entitled to
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under the law. Buzby noted that he believed Kehm was aware that Loesch had
reported the improper property tax abatement.
Buzby then wrote that "[s]ince these facts have become known to Kehm,
every request for anything I have made ha[s] been greeted by scorn and ridicule
by Kehm and, to a lesser extent, Gormley." Buzby concluded his letter by
stating that he was seeking protection under the whistleblower act and he
requested that Kehm be removed "as an appropriate authority for the police
department . . . ." A copy of Buzby's letter was sent to the Township's Mayor
and Counsel.
About one week later, Loesch sent an email to the Mayor requesting
protection from retaliation and insisting that "you as the Mayor must . . . act to
protect your staff and prevent possible litigation against the [T]ownship." A few
hours later, the Mayor sent a response and explained he had contacted legal
counsel for assistance.
On March 23, 2015, Township Counsel sent a letter to Loesch addressing
his earlier email. Counsel requested that Loesch "advise as to any adverse
employment actions . . . suffered since the disclosure so that the Township may
address any issue immediately." Counsel also requested that Loesch describe
the "form of protection [he was] requesting and the nature of the
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threats/harassment [he had] experienced." Counsel then advised Loesch to call
the police if he felt threatened. Counsel also advised that Loesch's complaints
had been forwarded to the Ocean County Prosecutor's Office.
A few weeks later, Loesch sent another email to Township Counsel,
requesting advice concerning his ability as Township Business Administrator
"to set the duties and expectations for the code enforcement
[officer] . . . position." In that email, Loesch stated, "everything has calmed
down with respect to the other [Kehm]/[Gormley] issues." Nonetheless, he
stated that he suspected Fromosky, as a Code Enforcement Officer, would likely
attempt to "defend[] himself from retaliation by me" and, thus, Loesch feared
his actions would be examined "through a magnifying glass." He explained he
was concerned about future conflicts between himself, Fromosky, Gormley, and
Kehm, but stated that he was "not looking [to] do anything at all, no actions or
anything." Instead, he explained he was only seeking advice regarding how to
proceed if something should happen in the future.
Township Counsel responded that day, advising Loesch that, as the
Township Business Administrator, he was tasked with supervising Fromosky
and had "the authority to discipline" him if he refused to perform his assigned
duties.
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Several months later, in early-August 2015, Buzby again contacted the
Ocean County Prosecutor and copied the Mayor and Loesch on that
communication. He explained he was writing to provide additional information
concerning "possible retaliation" against himself and a third Township employee
for reporting Kehm's "possible misconduct." Buzby stated he had been informed
that "'they' had somehow gotten the letter of referral and now were 'quote,
looking to get even.'" In making that claim, Buzby did not state who "they"
were.
Buzby also reported an incident that had occurred that past weekend
between Fromosky and William Allen, another Township employee (the Allen-
Fromosky incident). According to Buzby, Allen and Fromosky were attending
a wedding reception when Fromosky approached Allen and claimed that Buzby
"had, 'thrown him (Bill Allen) under the bus' by including information from him
in [the] letter to [the prosecutor] about John Kehm." Fromosky then informed
Allen that he was a former state trooper who "had many contacts in [the Ocean
County Prosecutor's Office], one of whom allegedly provided the letter" in
which Buzby had reported Kehm's misconduct.
Buzby informed the prosecutor that he found the Allen-Fromosky incident
troubling for two reasons. First, he believed it was inappropriate for Fromosky
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to know that Buzby had reported Kehm for potential misconduct since Kehm
had "fought so hard" to safeguard Fromosky's employment with the Township.
Second, he maintained the incident showed that Fromosky had threatened a
Township employee whom he incorrectly believed was involved in reporting
Kehm's misconduct. Accordingly, Buzby feared Fromosky's "threats" would
"get[] even worse."
After Buzby reported the Allen-Fromosky incident, Allen, himself,
submitted a complaint and letter to the Township, which detailed the incident.
In response, the Township had outside counsel, Robert Greitz, investigate the
incident. As part of his investigation, Greitz interviewed several Township
employees, including Allen, Fromosky, and Buzby. Greitz prepared a final
report, dated September 20, 2015, in which he concluded, "the facts in this
situation do not demonstrate Fromosky took any retaliatory action against Allen.
Further, there is no evidence to support the assertion [that] Fromosky violated
the Township's Harassment policy."
During the Allen-Fromosky investigation, Buzby made a complaint
directly to Greitz, alleging that Fromosky had lied about Buzby during his
interview with Greitz. Thereafter, on December 28, 2015, Buzby sent an email
to the Mayor and Loesch, stating the Township had never addressed his charge
A-5028-17T2
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against Fromosky for lying. He also wrote that Kehm and Fromosky were
engaged in a conspiracy "that involve[d] Fromosky reporting [Buzby] falsely to
the attorney general[,]" and that Kehm was "solicit[ing] and receiv[ing] advice
from Fromosky on how to fire . . . Loesch, apparently for nothing more than
having reported Kehm to [the Mayor], the [T]ownship attorney and, ultimately,
the county prosecutor through [Buzby]." Buzby further alleged that Fromosky
had committed these retaliatory acts "at work, on his [T]ownship email and on
a [T]ownship computer."
In addition to emailing the Mayor, Buzby sent another letter to the Ocean
County Prosecutor. He wrote that "[s]ince the Allen matter and the issuance of
the [Greitz] report, an uninterrupted string of harassment and interference has
continued." He informed the prosecutor that Kehm had shared confidential
information in the workplace and Fromosky had filed a meritless complaint
"against Loesch and [Buzby] claiming that [Buzby] had used Allen as a proxy
and Loesch had helped." Buzby went on to explain that he had recently learned
Fromosky had filed a complaint with the Attorney General's Office, which
contained false statements about Buzby. He then alleged that Fromosky
submitted those false statements "to help . . . Kehm."
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Buzby explained he had learned the information he was reporting from
Loesch, who had located three emails between Kehm and Fromosky. According
to Buzby, the first email was from Fromosky to Kehm, with a subject line
reading "done," that contained a draft of Fromosky's complaint to the Attorney
General's Office. Buzby alleged that in the second email, Fromosky was "using
a former relationship with a governor's aide to attempt to influence the [Attorney
General] to investigate" his September 2015 complaint. Lastly, Buzby
contended the third email contained information from Fromosky to Kehm
regarding "how to fire" Loesch. Buzby ended his letter to the prosecutor
similarly to his email to the mayor, by asserting that Fromosky had sent the three
emails while "at work, during work hours and . . . on a [T]ownship computer."
To support those claims, Buzby attached a copy of the email allegedly sent by
Fromosky to Kehm that addressed how to remove Loesch from his Township
position.
In September 2015, Buzby submitted a voucher to the Township
Committee seeking reimbursement for cell phone expenses. The committee
approved that request and a check was issued the following day. Shortly
thereafter, Gormley contacted Township Counsel and arranged for an off-agenda
resolution, at which he requested the appointment of a special investigator to
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investigate Buzby's cell phone reimbursement. Township Counsel was
conflicted from conducting the investigation, thus, in December 2015, the
Township Committee appointed conflict counsel to conduct the investigation.
In June 2016, conflict counsel issued a report on the investigation into
Buzby's request for cell phone expense reimbursement. According to the
certifications submitted by Buzby and Loesch, that report concluded that Buzby
had not violated any rule or law or otherwise acted wrongfully. One month later,
in letters dated August 2, 2016, the Township notified Buzby and Loesch that
their employment would be discussed in an executive session on August 11,
2016. Specifically, the letters advised that "the governing body will discuss the
report and recommendations" of conflict counsel and advised that Buzby's and
Loesch's "employment rights may be adversely affected."
According to Township Committee meeting notes, conflict counsel
presented the findings of his report on September 8, 2016. Thereafter, the
committee members voted to dismiss the cases against Loesch and Buzby. Three
committee members abstained from voting on the motion to dismiss, including
Gormley and Kehm.
On March 11, 2016, Tracey Habich, a Township employee, submitted a
complaint to the Township alleging that on March 10, 2016, she was speaking
A-5028-17T2
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with a coworker when Fromosky joined their conversation and stated that
another Township employee "was hired under the dispatch budget but is not in
dispatch because she is 'under the Chief's desk.'" In her complaint, Habich
explained she was reporting Fromosky's statement as "slanderous talk" about
Buzby and the other employee.
A few days later, Buzby sent an email to the Ocean County Prosecutor,
attaching a copy of the complaint made by Habich, denying Fromosky's
allegations, and requesting that the prosecutor's office conduct an internal
investigation into the matter. Buzby also reported that both Kehm and Fromosky
had been observed slowly driving by his property, presumably looking for
potential zoning violations. Buzby went on to claim that Fromosky had
repeatedly abused him by (1) filing "a completely false complaint" with the
Attorney General's Office, (2) accusing him of mishandling an incident in 2012,
(3) falsely informing Allen that Buzby had cited him for information in the letter
reporting Kehm's potential misconduct, and (4) informing "several members of
[the police] department that [Buzby] was, in effect, incompetent and would be
fired."
The Township conducted an investigation and held a hearing on
Fromosky's comment to Habich. In a report dated December 28, 2016, the
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hearing officer found there was no evidence establishing "Fromosky's alleged
statement was intended to be sexual in nature or meant to be sexual harassment
or general harassment . . . as defined in the [Township] Employee Handbook."
As such, the hearing officer found Fromosky "not guilty" on a number of
disciplinary charges filed against him. Nonetheless, the hearing officer
determined Fromosky had violated the Township's Employee Handbook Code
of Conduct by engaging in conduct unbecoming a public employee based on his
admission that he had referred to Buzby as a "Pumpkinhead" and had previously
"engag[ed] in conversation or jokes of a sexual nature to others" while working
for the Township.
On September 13, 2016, Buzby contacted the police to report that Kehm
was harassing him. Specifically, he informed the investigating detective that a
friend had received a text message from an unknown number with a link to a
webpage hosting a petition titled "Resignation of Chief Richard Buzby." He
then reported that the telephone number that had sent the text message belonged
to Kehm. Buzby also reported that he believed Kehm had sent the text message
to harass and intimidate him for his role in investigating the claim that Kehm
had unlawfully received a ninety-percent property tax reduction.
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While Buzby and Loesch were making complaints against Fromosky,
Fromosky was making his own complaints against Buzby and Loesch. For
example, in September 2015, Fromosky sent a tip to the New Jersey Attorney
General's Office alleging that Buzby had committed "[o]fficial [m]isconduct"
and requesting he be investigated. That same month, Fromosky submitted a
grievance to the Township, detailing several alleged violations of Township
policies committed by Loesch. A year later, on September 1, 2016, Fromosky
submitted a complaint to the Township, alleging Buzby and Loesch had
repeatedly conspired and released false information about him to intimidate and
threaten him.
The claims being made by Buzby, Loesch, and Fromosky eventually lead
to formal litigation in 2017. On March 8, 2017, Fromosky filed suit against the
Township, Buzby, Loesch, the former Township Mayor, and one other
Township official. In his complaint Fromosky alleged violations of the
Conscientious Employee Protection Act (CEPA) and the New Jersey Civil
Rights Act (NJCRA).
On May 31, 2017, Buzby filed an answer, counterclaims, and a third-party
complaint. Two days later, Loesch also filed an answer, counterclaims, and a
third-party complaint. Buzby's and Loesch's counterclaims and third-party
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complaints were nearly identical. In their counterclaims, they both alleged two
counts against Fromosky: (1) slander, defamation, and libel per se; and (2)
malicious abuse of process. In their third-party complaints, they both named the
Township, Fromosky, Kehm, and Gormley as third-party defendants and alleged
negligence against the Township; gross negligence against Gormley; civil
conspiracy and unlawful retaliation under CEPA against Kehm and Fromosky;
and violations of the NJCRA against Kehm, Fromosky, Gormley, and the
Township. Buzby also alleged malicious abuse of process against Kehm and
Gormley.
On October 12, 2017, before discovery was complete, Fromosky filed a
motion for summary judgment to dismiss Buzby's and Loesch's counterclaims
and third-party complaints. Approximately two weeks later, the Township,
Gormley, and Kehm filed a motion to dismiss the third-party complaints for
failure to state a claim pursuant to Rule 4:6-2(e).
On February 2, 2018, after hearing argument from counsel, the trial court
orally granted summary judgment to Fromosky, placing its reasons for that
decision on the record. Later that day, the court entered a written order
memorializing its decision and dismissing with prejudice the counterclai ms and
third-party claims filed against Fromosky. The court reasoned that further
A-5028-17T2
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discovery would not serve to substantiate any of Buzby's or Loesch's
counterclaims or third-party claims, that the tort claims were barred because no
tort claim notice had been timely filed, that there was no proof of publication to
a third party to sustain the slander and libel claims, that the abuse of process
claims could not be substantiated because there was a lack of illegitimacy and
coercion, that the statute of limitations barred all but one of the CEPA claims,
and that there was insufficient evidence to rule in favor of Loesch and Buzby on
the CEPA claims.
Buzby and Loesch moved for reconsideration of that summary judgment
decision and filed two motions seeking leave to amend their third-party
complaint and to file an amended third-party complaint as to Fromosky. On
March 29, 2018, the court heard oral argument and decided four motions. First,
the court granted Gormley, Kehm, and the Township's motion to dismiss the
third-party complaints for failure to state a cause of action. Second, the court
denied Buzby and Loesch's motion to amend their third-party complaints as to
all third-party defendants. Third, the court denied Buzby and Loesch's motion
to amend their third-party complaints as to Fromosky. Fourth, the court denied
the motion for reconsideration of the order granting Fromosky summary
A-5028-17T2
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judgment. The court then entered four corresponding orders memorializing
those decisions.
Thereafter, on June 26, 2018, a stipulation of dismissal was entered by
Fromosky, the Township, Loesch, Buzby, Kobryn, and Dave Schlick, dismissing
with prejudice Fromosky's claims and noting those claims had been "amicably
adjusted by and between the parties . . . ."
Buzby and Loesch then filed a notice of appeal challenging the February
2, 2018 summary judgment order, and the four orders entered on March 29,
2018.
II.
On appeal, Buzby and Loesch make six arguments contending that the
trial court erred by (1) not giving them favorable inferences when it granted
summary judgment to Fromosky; (2) granting summary judgment to Fromosky;
(3) granting the third-party defendants' motion to dismiss for failure to state a
cause of action; (4) denying their motion for reconsideration; (5) denying their
motion for leave to amend the third-party complaints; and (6) denying their
request to equitably estop the third-party defendants from asserting the notice of
tort claim as a defense. Having considered these arguments, we discern no error
warranting a reversal of any of the five orders being appealed.
A-5028-17T2
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We will analyze Buzby and Loesch's arguments by looking at the three
specific types of claims they asserted; those are tort claims, claims under the
NJCRA, and claims under CEPA. Accordingly, we will examine each of those
three types of claims and also analyze whether the trial court erred in denying
the motions to amend those claims.
A. The Tort Claims
Loesch and Buzby made various tort claims against the Township,
Fromosky, Kehm, and Gormley. Specifically, they asserted claims of slander,
defamation, libel per se, negligence, gross negligence, civil conspiracy, and
malicious abuse of process. The trial court dimissed those claims finding that
no tort claim notice had been timely filed.
A trial court's interpretation and application of the Tort Claims Act (TCA)
is a legal determination that we review de novo. See Jones v. Morey's Pier, Inc.,
230 N.J. 142, 153 (2017); Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super.
79, 83 (App. Div. 2015) ("'Our review of the meaning of a statute is de novo,
and we owe no deference to the interpretative conclusions reached by the trial
court . . . .'" (quoting Wilson ex rel. Manzano v. City of Jersey City, 209 N.J.
558, 564 (2012))).
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The TCA "is the statutory mechanism through which our Legislature
effected a waiver of sovereign immunity." D.D. v. Univ. of Med. & Dentistry
of N.J., 213 N.J. 130, 133 (2013). As such, the TCA enumerates limited
circumstances when a plaintiff may bring tort claims against public entities and
public employees. Id. at 133-34. The "'guiding principle'" of the TCA is that
"'immunity from tort liability is the general rule and liability is the exception.'"
Jones, 230 N.J. at 154 (quoting D.D., 213 N.J. at 134).
The TCA "establishes the procedures by which claims may be brought
. . . ." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). One of the procedures
the TCA imposes is a requirement to timely file a notice of claim. Jones, 230
N.J. at 154, 157-58 (explaining the TCA's notice requirements apply to a
plaintiff's claim, a defendant's cross-claim, and a third-party claim against a
public entity); see also N.J.S.A. 59:8-1 to -11. The notice of claim must comply
with a number of requirements, including (1) when it has to be filed, N.J.S.A.
59:8-8; (2) what information it must contain, N.J.S.A. 59:8-4; and (3) where it
has to be filed, N.J.S.A. 59:8-7. The TCA's notice requirements are to be strictly
construed. See McDade v. Siazon, 208 N.J. 463, 474, 476 (2011).
The Township is a municipal corporation located in Ocean County that
qualifies as a "public entity" under the TCA's definition. See N.J.S.A. 59:1-3
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(defining "public entity" to include "any county, municipality, district . . . and
any other political subdivision or public body in the State"). Moreover, the TCA
and its notice requirements apply to public employees and officials in both non-
intentional and intentional tort actions. Velez v. City of Jersey City, 180 N.J.
284, 292-93 (2004) (citing Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505,
519-21 (App. Div. 2003)); Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 344
(App. Div. 2004). Nonetheless, "there must be some nexus between the wrong
that is complained of and the defendant's public employment in order to mandate
that a notice of claim be filed before suit may be instituted." Gazzillo v. Grieb,
398 N.J. Super. 259, 264 (App. Div. 2008).
A review of Buzby's and Loech's counterclaims and third-party
complaints reveals that the alleged tortious conduct in this case is inseparable
from the individual defendants' public employment or actions. As such, the
TCA applies and Buzby and Loesch were required to file a notice of claim before
pursuing tort claims against the Township or its employees. See N.J.S.A. 59:8-
3. Neither Buzby nor Loesch ever filed a notice of claim. Accordingly, the
motion court correctly dismissed the tort claims.
Similarly, the court did not abuse its discretion in denying Buzby and
Loesch's motions to amend their third-party complaints to include additional tort
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claims because adding those claims would be futile. "'Rule 4:9-1 requires that
motions for leave to amend be granted liberally . . . .'" Notte v. Merchs. Mut.
Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Washington Park
Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998)). A court's decision on a
motion to file an amended complaint "'always rests in the court's sound
discretion.'" Ibid. "That exercise of discretion requires a two-step process:
whether the non-moving party will be prejudiced, and whether granting the
amendment would nonetheless be futile." Ibid. "An abuse of discretion occurs
when a decision was 'made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" Wear v.
Selective Ins. Co., 455 N.J. Super. 440, 459 (App. Div. 2018) (quoting Flagg v.
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Here, allowing Buzby and Loesch to include additional tort claims would
be futile as those claims would be dismissed based on the failure to file a notice
of tort claim. Furthermore, the court did not abuse its discretion in denying
Buzby and Loesch's motions to amend their third-party complaints to include
claims of unprofessional conduct in violation of N.J.S.A. 2A:47A-1. That
statutory cause of action is also subject to the TCA's requirements, including the
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notice provisions. See Thigpen v. City of E. Orange, 408 N.J. Super. 331, 343-
44 (App. Div. 2009).
Buzby and Loesch argue that the Township and its employees should be
"equitably estopped" from asserting the lack of a notice as a defense, contending
"the Township was clearly placed on notice." The doctrine of equitable estoppel
"is designed to prevent injustice by not permitting a party to repudiate a course
of action on which another party has relied to his detriment." Knorr v. Smeal,
178 N.J. 169, 178 (2003) (citing Mattia v. N. Ins. Co. of N.Y., 35 N.J. Super.
503, 510 (App. Div. 1955)). "To establish equitable estoppel, parties must prove
that an opposing party 'engaged in conduct, either intentionally or under
circumstances that induced reliance, and that [they] acted or changed their
position to their detriment.'" Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174,
189 (2013) (alteration in original) (quoting Knorr, 178 N.J. at 178). "The
doctrine is 'rarely invoked against a governmental entity . . . . Nonetheless
equitable considerations are relevant to assessing governmental conduct, and
may be invoked to prevent manifest injustice.'" McDade, 208 N.J. at 480
(quoting Cty. of Morris v. Fauver, 153 N.J. 80, 104 (1998)).
Buzby and Loesch have not demonstrated detrimental reliance based on
the Township's or its employees' acts or omissions. There is no evidence that
A-5028-17T2
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the Township or its employees made any representations or engaged in any
conduct suggesting they were waiving the defense of failure to file a notice of
tort claim. See, e.g., McDade, 208 N.J. at 480-81. Instead, in Fromosky's July
24, 2017 answers to the counterclaims and third-party complaints, he asserted
as a defense that "[t]he third party complaint and counterclaim is barred by
virtue of the notice provisions and damage provisions of the New Jersey Tort
Claims Act."
B. The NJCRA Claims
In 2004, the Legislature adopted the NJCRA "'for the broad purpose of
assuring a state law cause of action for violations of state and federal
constitutional rights[,] and to fill any gaps in state statutory anti-discrimination
protection.'" Ramos v. Flowers, 429 N.J. Super. 13, 21 (App. Div. 2012)
(quoting Owens v. Feigin, 194 N.J. 607, 611 (2008)). The NJCRA is modeled
after the federal Civil Rights Act (CRA), 42 U.S.C. § 1983, and provides in
relevant part:
Any person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or 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
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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).]
See also Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 468 (App. Div.
2012). Accordingly, the NJCRA "is a means of vindicating substantive rights
and is not a source of rights itself." Gormley v. Wood-El, 218 N.J. 72, 98 (2014).
"The elements of a substantive due process claim under the [NJCRA] are
the same as those [for a federal CRA claim] under § 1983." Filgueiras, 426 N.J.
Super. at 468 (citing Rezem Family Assocs., LP v. Borough of Millstone, 423
N.J. Super. 103, 115 (App. Div. 2011)). Namely, a party must first "'identify
the state actor, the person acting under color of law, that has caused the alleged
deprivation.'" Ibid. (internal quotations omitted) (quoting Rivkin v. Dover Twp.
Rent Leveling Bd., 143 N.J. 352, 363 (1996)). Next, the party needs to "'identify
a right, privilege or immunity secured to the'" party by the constitutions of the
state and federal governments or by state and federal laws. Ibid. (internal
quotations omitted) (quoting 42 U.S.C. § 1983). Thus, to establish a cause of
action under either act, the second element requires a party to "allege a specific
constitutional violation." Matthews v. N.J. Inst. of Tech, 717 F. Supp. 2d 447,
452 (D.N.J. 2010) (citing N.J.S.A. 10:6-2(c)).
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Buzby's and Loesch's original third-party complaints failed to identify any
federal or state constitutional "rights, privileges, or immunities" that had been
impacted. Instead, they presented their NJCRA claims in general terms, by
claiming they were denied due process and equal protection under New Jersey
law. Moreover, in their appellate brief, they address the NJCRA claims only as
they apply to Fromosky and they continue to omit an allegation of a specific
violation. Without alleging a specific right that has been infringed, Buzby and
Loesch cannot bring a civil action under the NJCRA. Accordingly, the motion
court did not err in dismissing the NJCRA claims. See Ibid.
Moreover, the trial court did not abuse its discretion in denying the
motions to amend the third-party complaints to include claims under the federal
CRA and to "more precisely articulate" the NJCRA claims. In the proposed
amended third-party complaint, neither the federal CRA claims nor the amended
NJCRA claims alleged a specific constitutional violation. As such, the amended
third-party complaint did not properly articulate a cause of action under the
NJCRA or the federal CRA. See Ibid. Thus, the amendment would be futile.
C. The CEPA Claims
CEPA is remedial legislation designed "'to protect and encourage
employees to report illegal or unethical workplace activities and to discourage
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public and private sector employers from engaging in such conduct. '" Sauter v.
Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super. 581, 588 (App. Div. 2017)
(quoting Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998)). Accordingly,
the statute "shields an employee who objects to, or reports, employer conduct
that the employee reasonably believes to contravene the legal and ethical
standards that govern the employer's activities." Hitesman v. Bridgeway, Inc.,
218 N.J. 8, 27 (2014); see also N.J.S.A. 34:19-3(a), (c).
The statute prohibits an employer from retaliating "against an employee
who discloses, threatens to disclose, or refuses to participate in an activity of the
employer 'that the employee reasonably believes is in violation of a law, or a
rule or regulation promulgated pursuant to law.'" Sauter, 451 N.J. Super. at 587
(quoting N.J.S.A. 34:19-2 to -3). A plaintiff alleging unlawful retaliation under
CEPA must establish that
(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;
(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
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(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)); accord Puglia v. Elk Pipeline, Inc., 226 N.J.
258, 280 (2016).]
The statute of limitations for filing a CEPA claim is one year. N.J.S.A.
34:19-5. The accrual dates for discrete acts are the dates upon which the
retaliatory or discriminatory events occurred. Roa v. Roa, 200 N.J. 555, 567
(2010) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110
(2002)). "A plaintiff need not know with certainty that there is a factual basis
for a claim under CEPA for the one year limitation period to be triggered; it is
sufficient that he [or she] should have discovered that he [or she] may have a
basis for a claim." Villalobos v. Fava, 342 N.J. Super. 38, 49 (App. Div. 2001).
When a claimant alleges "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[,]" the cause of action accrues "on the date on which
the last act occurred . . . ." Shepherd v. Hunterdon Developmental Ctr., 174 N.J.
1, 21 (2002). Critically, however, this "continuing violation theory cannot be
applied to sweep in an otherwise time-barred discrete act." Roa, 200 N.J. at 569.
Indeed, our Supreme Court has explained that
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[t]he continuing violation theory was developed to
allow for the aggregation of acts, each of which, in
itself, might not have alerted the employee of the
existence of a claim, but which together show a pattern
of [retaliation]. In those circumstances, the last act is
said to sweep in otherwise untimely prior non-discrete
acts.
What the doctrine does not permit is the aggregation of
discrete [retaliatory] acts for the purpose of reviving an
untimely act of [retaliation] that the victim knew or
should have known was actionable. Each such
"discrete [retaliatory] act starts a new clock for filing
charges alleging that act."
[Ibid. (quoting Morgan, 536 U.S. at 113).]
In their original third-party complaints, Buzby and Loesch alleged
discrete retaliatory acts committed by Fromosky and Kehm. Specifically, they
alleged that Fromosky had submitted several complaints to the Township, the
Attorney General's Office, and the Governor's Office, in which he falsely alleged
that Buzby and Loesch had committed misconduct. The third-party complaints
articulated the dates of each alleged false complaint of misconduct filed by
Fromosky. Concerning Kehm, Buzby and Loesch alleged that he had sent an
email in early-May 2016, in which he falsely alleged that Buzby had been
harassing him and committing retaliatory acts against him.
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The allegations before May 30, 2016, are time barred. Moreover, neither
Buzby nor Loesch have shown any adverse employment action caused by the
actions of Fromosky or Kehm. Buzby filed his third-party complaint on May 31,
2017, and Loesch filed his third-party complaint on June 2, 2017. Thus, the only alleged
retaliatory act committed by Fromosky within the limitations period was his filing of a
complaint with the Township on September 1, 2016, in which he alleged Buzby and
Loesch had conspired and released false information about him to intimidate and threaten
him. The trial court dismissed the CEPA claim against Fromosky after finding the
September 1, 2016 complaint did not constitute actionable retaliatory conduct under
CEPA. We agree.
CEPA defines retaliation as "the discharge, suspension[,] or demotion of
an employee, or other adverse employment action taken against an employee in
the terms and conditions of employment." N.J.S.A. 34:19-2(e). Nonetheless,
"the universe of possible retaliatory actions under CEPA is greater than
discharge, suspension, and demotion[,]" as evidenced by the statute's express
inclusion of "'other adverse employment action taken against an employee in the
terms and conditions of employment.'" Donelson v. DuPont Chambers Works,
206 N.J. 243, 257 (2011) (quoting N.J.S.A. 34:19-2(e)). Nevertheless, for an
action to be adverse, it must be completed, and it must have had a significantly
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negative effect on the employee's terms and conditions of employment. Beasley
v. Passaic Cty., 377 N.J. Super. 585, 606-08 (App. Div. 2005) (citations
omitted). That is, "not every employment action that makes an employee
unhappy constitutes 'an actionable adverse action.'" Nardello v. Twp. of
Voorhees, 377 N.J. Super. 428, 434 (App. Div. 2005) (quoting Cokus v. Bristol
Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J.
Super. 245 (App. Div. 2003)).
Here, there is no evidence demonstrating that the September 1, 2016
complaint had any effect on the terms and conditions of Buzby's or Loesch's
employment, let alone a significant, negative effect. Buzby and Loesch contend
the grant of summary judgment was inappropriate because discovery was just
beginning when Fromosky filed his motion. "Although Rule 4:46-1 permits a
party to move for summary judgment before the close of discovery, '[g]enerally,
summary judgment is inappropriate prior to the completion of discovery.'"
Branch v. Cream-O-Land Dairy, 459 N.J. Super. 529, 541 (App. Div. 2019)
(alteration in original) (quoting Wellington v. Estate of Wellington, 359 N.J.
Super. 484, 496 (App. Div. 2003)). Nonetheless, "[a] party opposing a motion
for summary judgment on the grounds that discovery is incomplete . . . must
'demonstrate with some degree of particularity the likelihood that further
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discovery will supply the missing elements of the cause of action.'" Ibid.
(quoting Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015)).
Buzby and Loesch have provided no explanation regarding how further
discovery would supply evidence showing the September 1, 2016 complaint had
a significant, negative effect on the terms and conditions of their employment,
nor have they identified any discovery essential to show the alleged false
complaint rose to the level of an adverse employment action. See DepoLink
Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 341-
42 (App. Div. 2013). Accordingly, that discovery was just beginning, on its
own, does not show summary judgment was inappropriate.
Finally, the trial court correctly concluded that the proposed amended
CEPA claims were also legally deficient. Buzby and Loesch sought to add
allegations that text messages sent by Kehm in September 2016 and Kehm and
Gormley's communications with conflict counsel concerning the investigation
into Buzby's cell phone reimbursement, which concluded in June 2016, were
retaliatory actions under CEPA. In the proposed CEPA amendments, however,
Buzby and Loesch do not identify any adverse employment action against them
resulting from these additional allegations. Indeed, the record establishes that
there was no change in their employment status or the conditions of their
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employment. Accordingly, the proposed amendments would have been futile
and the trial court correctly denied the motion to amend the CEPA claims.
To the extent that we have not addressed other arguments raised by Buzby
and Loesch, it is because we deem those arguments to lack sufficient merit to
warrant a discussion in this written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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