RICK RUSSO VS. CITY OF ATLANTIC CITY (L-1135-16, ATLANTIC COUNTY AND STATEWIDE), A-4024-18

Background

Russo, a long‑time Atlantic City Licensing & Inspection employee, supervised inspectors and served as Acting Chief after his supervisor Alston retired.
November 2011: Russo was written up for failing to ensure an inspector performed a scheduled overtime inspection; discipline initiated months later and, after a hearing, resulted in a one‑day suspension.
March 2012: A notice of violation was issued for Arctic Ave.; Cox (the director) had an ownership interest in the LLC owning that property; Cox voided the inspection upon learning of the conflict. Russo used Alston’s signature stamp on the notice while Alston was on medical leave.
August–September 2012: Cox granted an exemption for electrical service at the MLK Blvd. building; Russo sought an opinion from the International Property Maintenance Code (IPMC) council, which advised an exemption should not be granted based on the facts Russo provided.
Late 2012–2013: Russo served out‑of‑title as Acting Chief, was later removed, applied for the permanent Chief position and was not selected; he filed grievances and a Civil Service desk audit request.
Procedural history: Russo sued in federal court (2013) asserting First Amendment and CEPA claims; the federal court granted summary judgment on the federal claim and declined supplemental jurisdiction over CEPA (CEPA dismissed without prejudice). Russo later filed in state court; the Law Division granted summary judgment for defendants dismissing CEPA and CRA claims, and the Appellate Division affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness/statute of limitations	Russo timely refiled in state court after federal court dismissed CEPA; tolling preserved his claim	Claims were time‑barred (trial judge applied 30‑day bar)	Appellate court held trial judge erred on 30‑day bar; Russo’s state filing was timely but case nonetheless fails on other grounds
CEPA waiver and CRA overlap	Russo: CRA claim is sufficiently independent of CEPA	City: CEPA waiver bars duplicative state common‑law or statutory claims	CRA claim barred by CEPA waiver; CRA not substantially independent of CEPA allegations
Collateral estoppel from federal decision	Russo: state CEPA issues differ and were not decided by federal court	Defendants: federal court already decided identical retaliation/public‑concern issues	Collateral estoppel applies; federal adjudication of retaliation/public‑concern issues precludes relitigation in state court
Adverse employment action under CEPA	Russo: removal from Acting Chief, failure to promote, and hostile work environment constitute adverse actions	Defendants: removal was temporary/out‑of‑title, selection process neutral, conduct not severe/pervasive; discipline had basis	Russo failed to show CEPA‑cognizable adverse action; removal not a demotion, promotion denial lacked causation, hostile environment not severe or pervasive

Key Cases Cited

Artis v. Dist. of Columbia, 138 S. Ct. 594 (2018) (statute‑of‑limitations tolling rules)
Young v. Schering Corp., 141 N.J. 16 (1995) (CEPA waiver bars parallel retaliatory claims unless substantially independent)
Gannon v. Am. Home Prods., 211 N.J. 454 (2012) (federal judgments given preclusive effect under federal standards)
Del. River Port Auth. v. FOP, 290 F.3d 567 (3d Cir. 2002) (Third Circuit factors for collateral estoppel from federal judgments)
Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000) (identity‑of‑issues test for preclusion)
Yurick v. State, 184 N.J. 70 (2005) (elements required to establish a CEPA prima facie case)
Maimone v. City of Atl. City, 188 N.J. 221 (2006) (transfer with reduced compensation can be an adverse employment action)
Rowe v. Mazel Thirty, LLC, 209 N.J. 35 (2012) (standard of review for summary judgment)