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Drawing a bright line between retaliatory action and legitimate discipline, a New Jersey judge in Mercer County dismissed a whistleblower suit by two Hamilton policemen who claimed they were harassed and denied promotions for telling state officials about a brawl at a bachelor party attended by their chief. Superior Court Judge Raymond Hayser granted the defense motion for summary judgment on June 21, concluding that injuries suffered by plaintiffs Anthony Recine and James Pizzullo did not meet a standard recently articulated by the Appellate Division. In their complaints, brought under New Jersey’s Conscientious Employee Protection Act, Recine and Pizzullo claimed they were subject to retaliation by repeated investigations, removal from certain assignments and assignment to desk duty. Dismissing their claims, Hayser noted that under Hancock v. Oaklyn, 347 N.J. Super. 350 (2002), decided in February, “adverse employment actions” are distinguished from “minor actions which do not affect compensation or rank,” and that “temporal proximity” between protected activity and the claimed retaliatory conduct “does, not, alone, establish causation.” Hayser also criticized the plaintiffs for failing to exhaust administrative appeals to the state Department of Personnel’s Merit System Board before bringing their suit. Pizzullo appealed his dismissal with the Merit System Board but withdrew that appeal, and Recine failed to appeal his denial of a promotion with that board. The case went to trial in January 2001, but Judge Maria Sypek declared a mistrial after Pizzullo’s lawyer, Clifford Van Syoc, called the chief, Richard Taylor, a racist in front of a jury with four black members. Recine v. Taylor, MER-L-003271-94. Michael Herbert Sr., the lead attorney for the chief and the township, moved for sanctions against Van Syoc based on his bringing up the racial issue without notice at trial. That motion is pending, as Hayser has indicated he would entertain the motion after deciding on the merits of the case, says Herbert, of Princeton’s Herbert, Van Ness, Cayci & Goodell. Van Syoc, who was also the plaintiffs’ attorney in the Hancock case, could not be reached for comment regarding Hayser’s ruling. Recine’s lawyer, George Dougherty of Lawrenceville’s Katz & Dougherty, says he is preparing an appeal. Dougherty says Hayser was wrong to dismiss the case because a judge previously assigned in the matter had ruled that the complaints could stand. Dougherty also said the facts in Hancock differed too much from his case for the precedent to apply.

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