                                NOT FOR PUBLICATION WITHOUT THE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


                                                                       A-5028-17T2
                                        2
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
                                        3
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


                                                                            A-5028-17T2
                                       4
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


                                                                          A-5028-17T2
                                        5
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.


                                                                        A-5028-17T2
                                       6
        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


                                                                        A-5028-17T2
                                       7
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
                                       8
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."




                                                                       A-5028-17T2
                                       9
      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


                                                                          A-5028-17T2
                                       10
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
                                      11
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


                                                                          A-5028-17T2
                                       12
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.




                                                                       A-5028-17T2
                                     13
      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


                                                                       A-5028-17T2
                                     14
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
                                       15
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
                                       16
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
                                       17
      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))).




                                                                         A-5028-17T2
                                      18
      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


                                                                            A-5028-17T2
                                        19
(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


                                                                          A-5028-17T2
                                       20
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




                                                                          A-5028-17T2
                                       21
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
                                      22
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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                                       24
      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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                                      27
            [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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                                     30
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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                                      31
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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