Police Captain Can Pursue Harassment in Retaliation for Objection to Illegal Arrest Quota System

A recent decision from New Jersey’s Appellate Division recognizes it can be retaliation in violation of the Conscientious Employee Protection Act (“CEPA”) for a police department to harass one of its members because he objected to a new policy he reasonably believed is an illegal arrest quota system.

Police officer experiences retaliation for objecting to quota systemCalvin Anderson has been a member of the East Orange Police Department for over 20 years.  His supervisor, Anthony Cook, instituted a “productivity improvement system” that Anderson believed violated a New Jersey law that prohibits police departments from instituting arrest quota systems.  Anderson, who was a lieutenant at the time, complained about the productivity improvement system and refused to implement it.

Anderson filed a lawsuit against the Department and Cook, alleging they retaliated against him in violation of CEPA.  He claims Cook retaliated against him by investigating him for neglect-of-duty regarding his supposed failure to complete an accident-reconstruction report.  Even though the investigating officer concluded Anderson did nothing wrong, Cook then filed a complaint to the Internal Affairs Department about the same incident.  In addition, Cook required Anderson to increase his productivity in terms of stops and arrests in a crime zone, and issued him a written warning notice for failing to do so.  Cook also threatened to bring neglect-of-duty charges against Anderson for failing to file an incident report about another officer, even though doing so was the responsibility of a sergeant.  In addition, Cook ordered another captain to investigate Anderson, and threatened to issue a written warning to Anderson, for failing to report to a lineup for a July Fourth celebration.  Likewise, Cook berated Anderson in front of the mayor for supposedly neglecting his duty and wasting taxpayer dollars, and frequently assigned him to the midnight shift, which prevented him from working traffic details, which Anderson claims caused him to lose $10,000 to $12,000 in compensation.

Five months after Anderson filed his lawsuit, Police Chief Phyllis Bindi told him the Department was going to skip over him for a promotion, and instead promote other lieutenants to captain. Anderson complained to Chief Bindi and a City Councilman, and the Department promoted him to captain the next day.  Anderson subsequently amended his lawsuit to add an additional claim that the Department violated CEPA during that promotion process.

The defendants moved for summary judgment on both of Anderson’s claims.  The trial court found Anderson reasonably believed the Department had implemented an illegal quota system.  However, it also found the alleged retaliation was not sufficiently severe or pervasive to have materially altered his employment.  Accordingly, it dismissed Anderson’s case.  Anderson appealed.

In Anderson v. City of East Orange, the Appellate Division found Chief Bindi’s threat to skip Anderson over for a promotion was not actionable because she rescinded the threat and promoted him the next day.  However, the court found a jury could conclude the other alleged harassment, when viewed as a whole, establishes a “pattern of prohibited retaliatory conduct.”  In doing so, it noted that Anderson stated under oath that the retaliatory actions had “a profound impact on [his] health and well-being and [had] caus[ed him] constant emotional distress,” including “anxiety, loss of sleep, mental anguish [and] humiliation” and claimed he lost approximately $10,000 to $12,000 because Cook assigned to the midnight shift.

The Appellate Division was careful to note that ordinarily an investigation of an employee cannot be considered retaliatory unless there is a “strong showing” that it was illegitimate.  But, it found Anderson’s evidence is sufficient for a jury to conclude the Department and Cook retaliated against him by making false accusations and instituting unnecessary investigations against him.

Finally, the Appellate Division found there was no basis to overturn the trial court’s ruling that a jury could find Anderson reasonably believed the productivity improvement system was an illegal quota system.  Accordingly, it sent his case back to the trial court to give Anderson an opportunity to prove his retaliation claim.

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