JAMES DELORENZO VS. NEW JERSEY STATE POLICE (L-3190-10, MERCER 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1988-18T4
JAMES DELORENZO,
Plaintiff-Appellant,
v.
NEW JERSEY STATE POLICE,
COLONEL RICK FUENTES,
individually and in his capacity
as Superintendent of the New
Jersey State Police, and WILLIAM
ROBB, individually and in his
capacity as an employee with
the New Jersey State Police,
Defendants-Respondents.
_____________________________
Submitted April 28, 2020 – Decided August 20, 2020
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-3190-10.
Schiller Pittenger & Galvin, PC, attorneys for
appellant (Robert B. Woodruff, of counsel and on the
brief; Jay Bentley Bohn, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondents (Sookie Bae, Assistant Attorney General,
of counsel; Matthew J. Lynch, Deputy Attorney
General, on the brief).
PER CURIAM
Plaintiff James DeLorenzo retired from his job as a state trooper in 2011
at the mandatory retirement age of fifty-five while under suspension for
working full-time as an investigator for GEICO. In this action filed under the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14,
plaintiff claimed that his refusal to buckle to pressure to ease up on an internal
affairs investigation in 2004, and his oral internal complaint in 2006 about the
poor performance of the waste unit he was then effectively leading, which he
reduced to writing two years later, spurred several retaliatory internal
investigations of him, including one for sexual harassment of a subordinate,
another for culpable inefficiency, and a third for being habitually late for work,
which precluded his promotion to lieutenant and resulted in his referral to the
Division of Criminal Justice for criminal prosecution in connection with his
outside employment. Plaintiff also claimed the retaliation continued after he
retired when the State Police denied him certain licenses, including a gun carry
permit.
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Judge Marbrey granted the State's motion for summary judgment,
finding "the relationship between the alleged whistleblowing activity and the
alleged adverse employment action is far too attenuated," to establish a causal
link between the two. The judge also found that plaintiff's failure to find law
enforcement-related employment following his retirement from the State
Police "appears to be more closely related to the criminal charges that were
brought against him for his misconduct in his position in 2011, 1 and for his
having been employed with GEICO and the State Police simultaneously, while
giving no notice to either." The judge also found that plaintiff failed to present
any proof that the individuals who retaliated against him had any knowledge of
his earlier alleged whistle-blowing activities and presented no proof beyond
the opinions of certain friends and colleagues that the events were related.
Judge Marbrey further found plaintiff failed to establish the alleged
retaliatory acts constituted a pattern or series of acts that, viewed cumulatively,
1
Plaintiff was indicted by a State grand jury and tried twice on counts of
second-degree official misconduct, second-degree pattern of official
misconduct, second-degree computer theft, third-degree theft by deception and
third-degree tampering with public records. The first trial ended in a mistrial
on all counts. Plaintiff was acquitted of two charges in the second trial, and
the jury hung on the remaining counts. The State subsequently dismissed the
remaining charges, and plaintiff was afforded full back pay for the period of
his suspension and permitted to retire with his full pension. He was fired from
his job at GEICO the same month he was suspended by the State Police.
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could be considered a continuous violation, thereby making plaintiff's
complaint timely under Shepherd v. Hunterdon Developmental Ctr., 174 N.J.
1, 21 (2002). The judge noted that four of the several acts plaintiff claimed
were done in retaliation for his complaints were discrete acts, being three
transfers to different assignments within the State Police and the failure to
promote him to lieutenant, and the remainder "do not meet the test for a
continuing violation, as they do not demonstrate any pattern when viewed
cumulatively." The judge further found plaintiff failed to show that
investigations of him in 2008 for inefficient supervision and habitual lateness
and the 2009 investigation of his simultaneous employment by GEICO had
anything whatsoever to do with his prior reports or were retaliatory in nature.
Finally, the judge found the decision to prosecute plaintiff, was one made by
the prosecuting authority, not the complaining entity, and thus could not
support a CEPA allegation against the State Police for referring the matter to
Criminal Justice.
Plaintiff appeals, contending the trial court erred in finding the absence
of a causal link between his whistleblowing activities and defendant's
retaliatory conduct, and that the retaliatory conduct to which plaintiff was
subject was not continuous in nature. We disagree.
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We review summary judgment using the same standard that governs the
trial court. Chiofalo v. State, 238 N.J. 527, 539 (2019). As the parties agreed
on the material facts for purposes of the motion, our task is limited to
determining whether the trial court's ruling on the law was correct. Prudential
Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
Plaintiff worked for the State Police for nearly thirty years. He was
suspended in 2009 and retired in 2011. He identified two instances of
whistleblowing conduct. The first occurred in 2005, when he was working in
internal affairs, assigned to investigate a trooper's alleged misuse of a state-
issued gas credit card. His supervisor told him the Colonel's office did not
want the public knowing about an investigation finding a trooper "stealing gas"
and directed him to take that information out of his report. Plaintiff refused.
While plaintiff's supervisor did not address the subject again, plaintiff was
shortly thereafter transferred out of internal affairs, and the investigation,
which was not then complete, was re-assigned. The trooper was charged
administratively for misuse of a State gas credit card.
The second "whistleblowing" occurred in 2006, following plaintiff's
transfer to the solid/hazardous waste unit, as assistant unit head. When he was
transferred, a major told plaintiff the unit was "messed up," and he wanted
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plaintiff to straighten things out, and that doing so successfully would likely
result in a promotion. Plaintiff claimed he tried to do so, establishing new
protocols to address a backlog of investigations, but claimed he had little
authority over the civilian investigators in the unit, several of whom were
retired members of the State Police, who would come and go as they pleased.
He complained about the unit's inadequate staffing and mismanagement to
officers in the compliance unit, but declined to put his complaint in writing.
He finally did so two years later, long after his transfer to the electronic
surveillance unit and the opening of three internal investigations targeting him,
one in connection with a habitual tardiness complaint by a civilian subordinate
in the solid/hazardous waste unit, another arising out of an anonymous
complaint about him being habitually late to work while working in the unit,
and the third for culpable inefficient supervision, stemming from his interview
in connection with the sexual harassment complaint in which he claimed one
of his subordinates was habitually late for work. Although plaintiff believes
that all three investigations were initiated in retaliation for his complaint about
mismanagement of the unit, he admits he has no evidence for that claim,
including no evidence that the captain who initiated the investigation for
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culpable inefficiency knew about his complaint about the inadequate staffing
and mismanagement of the solid/hazardous waste unit.
We see no error in the trial court's finding that plaintiff's complaint, filed
in August 2010, while timely as to his suspension in August 2009, was
untimely as to any claims of retaliation in 2005, 2006 and 2008. CEPA has a
one-year statute of limitations. N.J.S.A. 34:19-5. "[F]or limitations purposes,
a 'discrete retaliatory or discriminatory act occur[s] on the day that it
"happen[s]."'" Roa v. Roa, 200 N.J. 555, 567 (2010) (quoting Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)).
The trial court was correct to reject plaintiff's claim "that a series of
discrete acts can constitute a continuing violation," as that is not the law.
Certainly, "'[r]etaliation,' as defined by CEPA, need not be a single discrete
action." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003). Under
the continuing violation doctrine, it can instead be "many separate but
relatively minor instances of behavior directed against an employee that may
not be actionable individually but that combine to make up a pattern of
retaliatory conduct." Ibid. But as Justice Long explained in Roa, "[w]hat the
doctrine does not permit is the aggregation of discrete discriminatory acts for
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the purpose of reviving an untimely act of discrimination that the victim knew
or should have known was actionable." 200 N.J. at 569.
Accordingly, Judge Marbrey was correct to find that the various
transfers plaintiff complained of and defendant's failure to promote him were
all time-barred discrete acts that could not be salvaged by resort to the
continuing violation doctrine, see Shepherd, 174 N.J. at 19 (recognizing
termination, failure to promote, transfer, or refusal to hire as examples of
discrete acts actionable on the day they occur), and the remainder of his
retaliation claims, such as the different investigations, a harassing anonymous
phone call, and advice from a superior officer to think about the effect a
complaint could have on his career, and that of his son, a new trooper, did not
demonstrate a pattern when viewed cumulatively, see Bolinger v. Bell
Atlantic, 330 N.J. Super. 300, 307 (App. Div. 2000) (noting a continuing
violation must be "more than the occurrence of isolated or sporadic acts of
intentional discrimination") (quoting Harel v. Rutgers State Univ., 5 F. Supp.
2d 246, 261 (D.N.J. 1998)).
Turning to the claim that was actionable, plaintiff's suspension, the judge
was also correct to find that plaintiff failed to establish a prima facie case of
retaliation based on that discrete act. A plaintiff's prima facie case under
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N.J.S.A. 34:19-3c, consists of demonstrating: (1) that he had a reasonable
belief that his "employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear mandate of public policy";
(2) he engaged in "whistle-blowing" activity; (3) an adverse employment
action was taken against him; and (4) "a causal connection exists between the
whistle-blowing activity and the adverse employment action." Dzwonar v.
McDevitt, 177 N.J. 451, 462 (2003). Judge Marbrey found plaintiff's claim
foundered on the fourth prong, demonstrating a causal connection between
plaintiff's whistleblowing and his suspension.
Specifically, the judge found plaintiff could not establish any connection
between his refusal to alter a report at the request of a supervisor when he was
an investigator in internal affairs in 2005 or his 2006 or 2008 complaints about
understaffing and mismanagement in the solid/hazardous waste unit and his
suspension for working full-time as an investigator for GEICO while a sworn
member of the State Police in 2009. Plaintiff does not dispute that he became
employed by GEICO in January 2008, that a State Police standard operating
procedure prohibited outside employment without prior approval, that he never
asked for approval, and, indeed, believed that a request to work at GEICO, had
he asked, would have been denied.
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Plaintiff also admitted that his supervisors at the State Police were
required to report his employment by GEICO to internal affairs on learning of
it, and that an internal investigation would have been opened into his conduct.
Although plaintiff believed the captain who reported his dual employment did
so in retaliation for plaintiff's whistleblower complaint about the
solid/hazardous waste unit, he produced no evidence that the captain was even
aware of his prior complaints.
Plaintiff admitted using his troop car to take care of work for GEICO , as
well as receiving phone calls regarding his work for the company while on the
clock for the State Police. Finally, plaintiff admitted that he lied to a lower
ranked member of the State Police to obtain a confidential State Police
investigative report involving two juveniles in connection with a GEICO
claim, which he had been asked by GEICO to obtain. He also admitted he
faxed the unredacted report to a GEICO claims examiner, who had been unable
to obtain the report from the State Police herself.
Plaintiff's suspension occurred more than four years after his refusal to
alter a report while an investigator in internal affairs, almost three years after
his initial oral complaint about the solid/hazardous waste unit and nearly ten
months after he reduced that complaint to writing. Given that the timing of
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plaintiff's complaints and his suspension was not "unusually suggestive," it
was incumbent on him to produce other evidence to establish the causal link.
See Young v. Hobart W. Grp., 385 N.J. Super. 448, 467 (App. Div. 2005).
Plaintiff's failure to put forth any competent evidence linking his whistle-
blowing to his suspension for working full-time as an investigator for GEICO
while working and being paid for full-time work as a New Jersey State
Trooper was fatal to his retaliation claim. Further, no reasonable jury could
find on this record that plaintiff's suspension for that dual employment was a
pretext for retaliation. See Donofry v. Autotote Sys., Inc., 350 N.J. Super.
276, 292 (App. Div. 2001) (explaining how proof of pretext can, in
conjunction with plaintiff's prima facie case, prove the required causal
connection).
Because we are satisfied that summary judgment was appropriately
entered based on Judge Marbrey's analysis rejecting application of the
continuing violation doctrine on the undisputed facts and plaintiff's failure to
establish the fourth prong of his prima facie case, we need not consider
defendant's claim that plaintiff's proofs also failed the first prong because he
could not identify any law, rule, regulation or clear mandate of public policy
that he could reasonably believe was violated by inadequate staffing and
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mismanagement of the solid/hazardous waste unit. See Schechter v. N.J. Dep't
of Law & Pub. Safety, Div. of Gaming Enf't, 327 N.J. Super. 428, 435 (App.
Div. 2000); Young v. Schering Corp., 275 N.J. Super. 221, 237 (App. Div.
1994).
Affirmed.
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