MILLBURN -- Millburn officials have lost an appeal of a $455,000 verdict awarded to a former township police sergeant over claims they retaliated against him for reporting a superior officer failed a firearms test.
A state appellate panel on Oct. 23 upheld the jury award given to Kenneth Duym last year in his lawsuit against Millburn. The appellate judges rejected the township's argument that Duym failed to show he was retaliated against for his whistleblower activity.
Duym has claimed the retaliation occurred in response to him reporting in 2010 that former Millburn Police Chief Gregory Weber - who was a captain at the time - had failed to meet the minimum requirements to requalify with his duty weapon.
Duym's lawsuit alleged those acts of retaliation involved subjecting him to a criminal investigation, withholding his promotion, and removing him as firearms range master. Duym retired from the police force in 2013, records show.
After a three-day trial in May 2014, the jury awarded Duym $63,000 in economic damages and $392,000 in non-economic damages, according to the appellate decision. The trial judge dismissed Duym's claim for punitive damages, and the appellate panel affirmed that decision.
In the township's appeal, municipal officials claimed Duym failed to show "his whistleblower activity contributed to the adverse employment actions of which he complains," the decision states.
But the appeals court dismissed that argument, saying in its decision that "the record is replete with direct and circumstantial evidence that Weber was aware of plaintiff's whistleblowing activity, and consequently acted on it."
Weber retired from the township police department in May, records show.
Eric Harrison, the attorney who represented Millburn in the case, said the municipality will be asking the New Jersey Supreme Court to hear its appeal.
"We believe the Appellate Division was incorrect in its analysis and we will be petitioning the Supreme Court to review the case," Harrison said in an email.
In addition to the $455,000 jury award, the township also has been ordered to pay $107,000 to cover Duym's legal fees as a result of the verdict, according to his attorney, Patrick Toscano Jr.
Toscano also said he was seeking more than $100,000 from the municipality in attorneys' fees for Duym being successful in the appeal.
"The appellate division was spot on in affirming this verdict/jury finding, as the actions of the defendants in this case, as reflected by the trial testimony, were particularly egregious, retaliatory, intentional and spiteful," Toscano said in an email.
In an unrelated case, Millburn Police Sgt. Robert Ronceray in May won a $145,000 jury verdict in his lawsuit against the township for allegedly retaliating against him by not promoting him to the rank of lieutenant.
MORE: Millburn ordered to pay $455K to former cop in whistleblower lawsuit
The series of events leading to Duym's lawsuit began on Oct. 21, 2010, when Duym, as the firearms range master, oversaw Weber's requalification test, according to the appellate decision. Weber failed the test, because he was unable to shoot from a kneeling position, the decision states.
Following the orders of then-Millburn Police Chief David Barber, Duym offered Weber an opportunity to take the test again, but "Weber declined the offer, explaining that he was incapable of kneeling," the decision states.
Duym then informed Weber that he had failed the requalification test, the decision states.
About a month later, Weber filed an internal affairs complaint against Duym, "accusing him of harassment and of altering official police firearms qualification forms with respect to Weber's failure to qualify on October 21, 2010," the decision states.
The matter was referred to the Professional Standards Bureau of the Essex
County Prosecutor's Office, meaning Duym was the subject of a criminal investigation, the decision states.
Duym filed a tort claim notice in February 2011 for a possible lawsuit involving on Weber's false accusation of criminal misconduct, the decision states. Weber ultimately said he did not want to pursue the investigation, and the probe was terminated in August 2011, the decision states.
But soon after Weber was promoted to police chief later in 2011, he removed Duym from his position as firearms range master, the decision states. Weber never consulted Duym or offer an explanation for his removal, the decision states.
The appellate judges noted how Weber admitted during his trial testimony that he removed Duym from the position, in part because Duym had filed the tort claim notice.
In his lawsuit, Duym also claimed Township Business Administrator Timothy Gordon retaliated against him by not promoting him to the rank of lieutenant.
But in dismissing one component of Duym's punitive damages claim, the appeals court said the trial judge "correctly found no basis in the evidence to conclude that Gordon engaged in intentionally wrongful conduct in not promoting plaintiff."
"Generally, plaintiff's contentions that Gordon's actions resulted from his whistleblowing activity involving Weber are fraught with speculation, self-serving assertions, or unsubstantiated conjecture," the decision states.
Bill Wichert may be reached at bwichert@njadvancemedia.com. Follow him on Twitter @BillWichertNJ. Find NJ.com on Facebook.