JAREER ABU-ALI VS. PINNACLE FOODS GROUP, LLC Â (L-0143-13, MORRIS COUNTY AND STATEWIDE) ( 2017 )


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    APPROVAL OF THE APPELLATE DIVISION
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    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1895-15T2
    JAREER ABU-ALI,
    Plaintiff-Appellant,
    v.
    PINNACLE FOODS GROUP, LLC,
    and STEPHEN GUNTHER,
    Defendants-Respondents.
    ______________________________________________
    Argued September 12, 2017 – Decided September 26, 2017
    Before Judges Yannotti and Carroll.
    On appeal from Superior Court of New Jersey,
    Law Division, Morris County, Docket No. L-
    0143-13.
    Damian Christian Shammas argued the cause for
    appellant (Law Offices of Damian Christian
    Shammas, LLC, attorneys; Mr. Shammas and
    Kristen Jasket Piper, on the briefs).
    Nicholas   Stevens   argued  the   cause   for
    respondents (Starr, Gern, Davison & Rubin, PC,
    attorneys; Mr. Stevens, of counsel and on the
    brief; Jonathan J. Lerner, on the brief).
    PER CURIAM
    Plaintiff Jareer Abu-Ali appeals from an order entered by the
    Law Division on December 3, 2015, granting summary judgment in
    favor of defendants Pinnacle Foods Group, LLC (Pinnacle), and
    Stephen Gunther (Gunther). We affirm.
    I.
    Pinnacle is the owner of several food brands, including Vlasic
    pickles, Log Cabin syrup, Comstock and Wilderness pie-fillings,
    and Bernstein's salad dressings. In May 2011, Pinnacle hired
    plaintiff as its Director of Product Development. His duties
    included developing new products, maintaining current products,
    and managing scientists and technicians in his group. Gunther was
    Pinnacle's Vice President of Research. He was plaintiff's direct
    supervisor.
    Plaintiff claims he disclosed to his supervisors certain
    actions or practices regarding the company's products that he
    believed    were    a   violation    of       a   law,   rule,   duly-promulgated
    regulation, or a clear mandate of public policy. He alleges he had
    a reasonable belief that in certain respects, the company was
    violating     the   Federal   Food    Drug         and   Cosmetic   Act   (FDCA),
    specifically, 
    21 U.S.C.A. § 331
    , or the Nutritional Labeling and
    Education Act (NLEA), specifically, 
    21 U.S.C.A. § 343
    .
    Plaintiff alleges that he was asked to determine if certain
    whole baby pickles, which the company had stored in a salt tank
    2                               A-1895-15T2
    and were more than one year past their "shelf-life," could be used
    in the company's products. Plaintiff acknowledged that he did not
    know who had determined the shelf-life of the pickles. He sampled
    the pickles and informed Gunther and Mark Schiller, the company's
    Executive Vice President, that in his opinion, the pickles should
    not be used in the company's products. According to plaintiff, the
    company modified its internal standards, extended the "shelf life"
    of the pickles, and used the pickles to make relish.
    Plaintiff also claims that to generate savings, Pinnacle
    directed him to remove an additional ten percent of the cucumbers
    that the company was placing in its pickle jars. Plaintiff learned
    that the company was already including fewer pickles than the
    company's internal specifications required. Plaintiff reported his
    findings to Gunther and other company executives.
    Plaintiff alleges he believed that if Pinnacle was putting
    fewer pickles in the jars, the jar's nutrition label would not
    accurately state the number of servings in the jar and its salt
    content. He testified that the practice did not violate any
    specific regulation, but he thought it violated "the spirit" of
    some regulation. Pinnacle decided not to remove the additional ten
    percent of the product from the jars.
    In   addition,   plaintiff   claims   he   raised   concerns     about
    Farmer's Garden 1 (FG1), a pickle product that Pinnacle was
    3                                A-1895-15T2
    developing.   At some point, a Pinnacle plant worker told plaintiff
    the FG1 test product did not taste right. Plaintiff investigated
    the report and determined that the use of "expired" carrots could
    have caused the taste. Plaintiff recommended that Pinnacle destroy
    the test samples. Gunther agreed and the FG1 test products did not
    go to market.
    Plaintiff    further    alleges    that   he   received     an    e-mail
    indicating that the metal caps on the FG1 jars had a tendency to
    rust. It appears that a third-party manufactured the caps for
    Pinnacle. Plaintiff determined that the manufacturer's production
    process scratched the outside of the caps, which caused the
    rusting. Plaintiff reported his findings and Pinnacle removed
    products that had gone to market with the defective caps.
    Furthermore, plaintiff alleges that Pinnacle made certain
    fraudulent    financial   projections.     He    reviewed   the    company's
    internal "productivity sheets," which estimated certain savings.
    Plaintiff found that some of the productivity sheets reflected
    savings on projects that the company was no longer pursuing. He
    also thought that some of the estimates were not realistic or
    achievable. The company's Procurement Department agreed with some
    of   plaintiff's   analyses   and   revised     those   estimates.     At   his
    deposition, plaintiff testified that he did not know whether the
    estimates were provided to the public. There is no evidence that
    4                                 A-1895-15T2
    the estimates were incorporated in Pinnacle's public financial
    disclosures.
    Plaintiff further claims that Pinnacle's Director of Meat
    Procurement, Myron Welton, asked him to approve the use of certain
    meat in its food products. Plaintiff determined that the meat was
    not suitable for such use, and Gunther agreed. In addition,
    plaintiff claims Pinnacle acquired certain brands of pie-fillings
    from other companies, and the brands were undergoing a "packaging
    graphics change." According to plaintiff, Pinnacle was including
    less fruit and real sugar in the products, and replacing both
    ingredients with high-fructose corn syrup.
    Plaintiff   claims   that   as       a   result   of   the   changes,   the
    nutrition labels on the products were not accurate. He did not,
    however, know if the incorrect labels originated at Pinnacle or
    the   companies   who   sold   the     brands      to   Pinnacle.    Pinnacle's
    Regulatory Department corrected the labeling errors that plaintiff
    identified.
    Plaintiff also claims that the nutrition labels on some syrups
    inaccurately stated the calories of the products. Plaintiff raised
    the issue with the company's Productivity, Quality Assurance, and
    Regulatory Departments. Gunther approved revised labels for the
    products, but authorized the use of the existing labels until the
    new labels could be printed.
    5                                 A-1895-15T2
    Plaintiff further alleges that a third-party had manufactured
    salad dressing for Pinnacle and shipped an order of the product
    to a store in California. Plaintiff received a report that the
    ingredients of the salad dressing did not separate as they should
    and remained cloudy. Plaintiff also claims the product's contents
    did not match the sugar, salt, and calorie content referenced on
    the nutrition label. Plaintiff informed Gunther the product did
    not meet the company's specifications and should be removed from
    the store's shelves; however, Pinnacle informed the store the
    product did not pose a safety hazard. Pinnacle asserts that it
    later corrected the problem with the dressing.
    Plaintiff also raised concerns about the nutrition label on
    Pinnacle's new Farmer's Garden 2 (FG2) product. The product label
    referred to FG2 as "All Natural." Plaintiff alleges that the label
    listed certain additives that were not natural and therefore the
    label was not accurate. He also informed Gunther and others that
    the company was not cleaning certain production machinery properly
    and, as a result, FG2 contained salt that would affect the accuracy
    of the label. Gunther agreed with some of plaintiff's concerns.
    On June 5, 2012, after plaintiff engaged in what Pinnacle
    believed was inappropriate conduct toward a Pinnacle employee, the
    company   reclassified    plaintiff's     position      as    an   independent
    contributor.   Pinnacle    asserts       the   change        did   not    affect
    6                                   A-1895-15T2
    plaintiff's       compensation   or     benefits.   Plaintiff     refused    the
    reclassification. Pinnacle then told plaintiff he could resign or
    he   would   be    terminated.   Plaintiff     resigned.    Pinnacle    asserts
    plaintiff voluntarily resigned his position, but plaintiff claims
    he was fired.
    In January 2013, plaintiff filed a complaint against Pinnacle
    and Gunther asserting claims under the Conscientious Employee
    Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. In his complaint,
    plaintiff alleges defendants violated CEPA by subjecting him to
    an   adverse      employment   action    in   retaliation   for   his   alleged
    whistle-blowing activities. Plaintiff further alleges that as a
    direct and proximate result of defendants' actions, he suffered
    monetary damages and personal injuries. He sought compensatory and
    punitive damages, attorney's fees and costs, and other relief.
    Defendants filed an answer and denied liability. After the
    completion of discovery, defendants filed a motion for summary
    judgment. On October 23, 2015, the Law Division judge heard oral
    argument and on December 3, 2015, placed an oral decision on the
    record. The judge decided there were no genuine issues of material
    fact and defendants were entitled to judgment as a matter of law.
    In her decision, the judge stated that except for labeling
    issues associated with certain products, plaintiff failed to show
    he had a reasonable belief that Pinnacle had violated a law, rule,
    7                              A-1895-15T2
    regulation, or clear mandate of public policy with regard to the
    contents      or    labeling    of   its     food       products.    The    judge     also
    determined that plaintiff had not shown that he engaged in whistle-
    blowing      activity   protected       by       CEPA;    plaintiff    had    not     been
    subjected to an adverse employment action; and he failed to show
    a causal connection between his alleged whistle-blowing activities
    and any adverse employment action. The judge memorialized her
    decision in an order dated December 3, 2015. This appeal followed.
    II.
    On appeal, plaintiff argues that the trial court erred by
    granting summary judgment in favor of Pinnacle. He contends he
    presented sufficient evidence to raise genuine issues of material
    fact as to whether: (1) he had an objectively reasonable belief
    that    Pinnacle       was     engaging      in     illegal     and/or       fraudulent
    activities, practices, or conduct; (2) he engaged in protected
    whistle-blowing conduct; (3) there is a causal connection between
    the    alleged     whistle-blowing      and       the    retaliatory       action    taken
    against him; and (4) the reasons Pinnacle gave for its retaliatory
    actions are pretextual.
    "An    appellate      court   reviews         an    order     granting summary
    judgment in        accordance    with   the       same    standard    as    the     motion
    judge." Bhagat v. Bhagat, 
    217 N.J. 22
    , 38 (2014). Therefore, we
    "must review the competent evidential materials submitted by the
    8                                    A-1895-15T2
    parties to identify whether there are genuine issues of material
    fact and, if not, whether the moving party is entitled to summary
    judgment as a matter of law." Ibid.; Brill v. Guardian Life Ins.
    Co. of Am., 
    142 N.J. 520
    , 540 (1995); R. 4:46-2(c).
    Here, plaintiff is asserting claims under CEPA. In order to
    prevail on such a claim, the plaintiff first must establish:
    (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
    (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)).]
    If a plaintiff establishes these elements of a prima facie
    case, the defendant "must come forward and advance legitimate
    nondiscriminatory reasons for the adverse conduct against the
    employee." Klein v. Univ. of Med. and Dentistry of N.J., 
    377 N.J. Super. 28
    , 38 (App. Div. 2005) (citation omitted), certif. denied,
    
    185 N.J. 35
     (2005). "If such reasons are proffered, plaintiff must
    then raise a genuine issue of material fact that the employer's
    9                          A-1895-15T2
    proffered    explanation   is   pretextual."   
    Id. at 39
    .   (citation
    omitted).
    As we noted previously, plaintiff's CEPA claims are based on
    his contention that he had a reasonable belief Pinnacle was
    violating the FDCA or the NLEA with regard to certain acts and
    practices in its food-production business. The FDCA authorizes the
    Food and Drug Administration (FDA) to protect the public health
    by ensuring that "foods are safe, wholesome, sanitary, and properly
    labeled." 
    21 U.S.C.A. § 393
    (b)(2)(A).
    Among other things, the FDCA bans "adulterated" food from
    interstate commerce. Young v. Cmty. Nutrition Inst., 
    476 U.S. 974
    ,
    976, 
    106 S. Ct. 2362
    , 
    90 L. Ed. 2d 959
    , 963-64 (1986) (citing 
    21 U.S.C.A. § 331
    ). Under the FDCA, food is "adulterated"
    (1) [i]f it bears or contains any poisonous
    or deleterious substance which may render it
    injurious to health;
    . . . .
    (3) [I]f it consists in whole or in part of
    any filthy, putrid, or decomposed substances,
    or if it is otherwise unfit for food;
    . . . .
    (b)   Absence, substitution, or addition of
    constituents.    (1)    [i]f   any    valuable
    constituent has been in whole or in part
    omitted or abstracted therefrom; or (2) if any
    substance has been substituted wholly or in
    part therefor; or (3) if damage or inferiority
    has been concealed in any manner; or (4) if
    10                             A-1895-15T2
    any substance has been added thereto or mixed
    or packed therewith so as to increase its bulk
    or weight, or reduce its quality or strength,
    or make it appear better or of greater value
    than it is.
    [
    21 U.S.C.A. § 342
    .]
    Furthermore,   in   1990,   Congress    enacted    the    NLEA,    "which
    altered,   expanded,     and     clarified    the      [FDCA's]    labeling
    requirements." Smajlaj v. Campbell Soup Co., 
    782 F. Supp. 2d 84
    ,
    92 (D.N.J. 2011) (citing 
    21 U.S.C.A. §§ 301
    , 321, 337, 343, 371).
    Among other things, 
    21 U.S.C.A. § 343
     provides that food intended
    for human consumption that is offered for sale, must have a label
    that provides the number of servings, the number of calories, and
    the amount of sodium and sugars in the product. 
    21 U.S.C.A. § 343
    (q)(B)(C)(D).
    III.
    Here, plaintiff argues that he presented sufficient evidence
    to raise a genuine issue of material fact as to whether he had an
    objectively   reasonable   belief    that    Pinnacle    was   engaging       in
    practices that violated the FDCA or the NLEA. As we have explained,
    plaintiff's claims relate to (1) the attempted use of certain baby
    whole pickles in the company's food products; (2) the reduction
    in the number of cucumbers in pickle jars; (3) the use of "expired"
    carrots in a test product; (4) the request to use allegedly
    "suspect" meat in products; (5) the use of metal caps on jars of
    11                                 A-1895-15T2
    food that had a tendency to rust; (6) the alleged use of misleading
    labels    on   pie-filling    products;    (7)   the   creation   of   certain
    allegedly      fraudulent    financial    projections;   (8)   the     sale    of
    allegedly defective salad dressing; (9) the change of ingredients
    in certain products without needed changes to the labels; and (10)
    the substitution of sweeteners in syrups without changing the
    labels.
    As we stated previously, the motion judge found that plaintiff
    had presented sufficient evidence to show that he had a reasonable
    belief Pinnacle had violated the FDCA and NLEA by changing the
    ingredients in certain products without modifying the nutrition
    labels for these products. The judge concluded, however, that
    plaintiff failed to present sufficient evidence to show he had a
    reasonable belief that Pinnacle was violating any law, rule,
    regulation, or clear mandate of public policy with regard to the
    other products.
    In her decision, the judge pointed out that the FDCA generally
    bars the introduction into interstate commerce of adulterated
    foods. 
    21 U.S.C.A. § 331
    . The judge noted that according to the
    FDCA, food is considered "adulterated" if it contains poisonous
    or deleterious substances, contains certain unsafe food additives,
    is injurious to health, or includes substances that make it unfit
    for consumption as food. 
    21 U.S.C.A. § 342
    (a), (b), or (c). The
    12                                 A-1895-15T2
    judge concluded that except for the labels on certain pie-fillings
    and syrups, plaintiff had not presented sufficient evidence to
    support his claim that he had a reasonable belief the company was
    violating either the FDCA or NLEA.
    The judge noted that plaintiff had not identified any specific
    rule, regulation or standard that Pinnacle had allegedly violated,
    and plaintiff had not presented "any evidence that would enable a
    rational juror to conclude that Pinnacle's departure from internal
    product     specifications    violated    any    specific       government
    specification." The record supports the judge's assessment of the
    evidence.
    Here, plaintiff claims Pinnacle asked him to determine if
    certain baby whole pickles that were allegedly past their "shelf
    life" could be used in the company's products. Plaintiff testified
    that he believed the use of the "decomposed" pickles violated the
    FDCA. The FDCA precludes the sale of "adulterated" foods, but
    plaintiff did not cite any rule or regulation indicating that the
    pickles at issue were unfit for consumption as food.
    Plaintiff   further     alleges   that   Pinnacle   used   so-called
    "expired" carrots in its FG1 test product. Plaintiff failed to
    show, however, that Pinnacle's alleged use of the "expired" carrots
    violated any specific rule or standard pertaining to the use of
    13                               A-1895-15T2
    such ingredients. Moreover, there is no evidence that Pinnacle
    ever sold such products to the public.
    Plaintiff also claims the FG1 test product had metal caps
    that had a tendency to rust. Plaintiff may have expressed concerns
    about the rusting of the metal caps on the FG1 product, but the
    evidence was insufficient to show that the caps adulterated the
    contents   of    the   jars   or   rendered   the     contents     unfit   for
    consumption. Furthermore, Pinnacle had removed any products with
    the deficient caps that had been sent to market.
    In addition, plaintiff claims a Pinnacle employee asked him
    to approve the use of the allegedly "suspect" meat in certain
    Pinnacle products. Plaintiff did not, however, approve the use of
    the meat, and Gunther agreed with his decision. Plaintiff did not
    present any evidence that Pinnacle ever used any tainted meat in
    any food product. The mere fact that someone asked plaintiff to
    approve the use of the meat is not a violation of the FDCA, and
    plaintiff could not have a reasonable belief that Pinnacle was
    violating the FDCA.
    Plaintiff    also   claims    he    reasonably     believed     Pinnacle
    violated the FDCA and the NLEA by providing allegedly deficient
    salad dressing to a store. He claimed the product had an inaccurate
    label. However, a third-party had manufactured the product for
    Pinnacle, and Pinnacle determined the deficiencies in the dressing
    14                                A-1895-15T2
    did not present a safety issue for consumers. Plaintiff did not
    provide sufficient evidence to support the claim that he had a
    reasonable belief the product was unfit for consumption or that
    the label was inaccurate.
    Plaintiff also alleges he reasonably believed the labels for
    Pinnacle's FG2 product violated the NLEA because the company used
    the term "All Natural" on the label. As the motion judge noted,
    however, the FDA had not established any standard for use of the
    term "All Natural." In addition, plaintiff claims that the FG2
    labels were false and misleading because the labels allegedly did
    not match the ingredients in the product, and the salt content was
    much higher than the actual product. The record shows, however,
    that   Pinnacle   addressed   many   of   the   issues   plaintiff    raised
    regarding FG2, and plaintiff failed to present sufficient evidence
    showing that he had a reasonable belief the company sold FG2
    products with inaccurate labels to consumers.
    Plaintiff's claim regarding the alleged faulty financial
    projections also fails for lack of proof. He has not identified
    any specific statute, rule, regulation, or clear mandate of public
    policy that Pinnacle allegedly violated by creating these internal
    company financial projections. Plaintiff identified errors in some
    estimates and some were corrected. There is, however, no evidence
    15                              A-1895-15T2
    that Pinnacle disseminated any faulty estimates to the public, or
    used them in any of the company's public financial disclosures.
    We     therefore    conclude    that    the   motion     judge       correctly
    determined     that,     with   the   exception     of   the   labeling       issues
    pertaining to the change of ingredients in certain products,
    plaintiff failed to present sufficient evidence to show he had a
    reasonable belief Pinnacle violated either the FDCA or the NLEA.
    Plaintiff nevertheless argues that the motion judge erred by
    requiring that he identify specific standards applicable to the
    specific products about which he expressed concerns. Plaintiff
    notes that a party asserting a CEPA claim need not show that his
    employer actually violated a law, regulation, or clear mandate of
    public policy. See Dzwonar, 
    supra,
     
    177 N.J. at 462
     (citations
    omitted).
    However, a plaintiff must "first find and enunciate the
    specific terms of a statute or regulation, or the clear expression
    of public policy, which would be violated if the facts as alleged
    are true." 
    Id. at 463
     (quoting Fineman v. New Jersey Dept. of
    Human Servs., 
    272 N.J. Super. 606
    , 620 (App. Div.), certif. denied,
    
    138 N.J. 267
       (1994)).    The   court    "must     identify      a    statute,
    regulation, rule, or public policy that closely relates to the
    complained-of conduct." 
    Ibid.
     There must be a "close relationship"
    16                                    A-1895-15T2
    between the plaintiff's claims and the alleged violation. Id. at
    467.
    Here, plaintiff merely referred to the requirements of the
    FDCA and the NLEA, which generally bars the introduction of
    adulterated food into interstate commerce and requires accurate
    labels for food products. Reference to the general requirements
    of the FDCA and NLEA are insufficient, however, because CEPA
    requires a showing of a "close relationship" between plaintiff's
    concerns and the purported violations. As the motion judge noted,
    plaintiff failed to cite any specific rule, regulation, or standard
    applicable to the food products about which he had expressed
    concerns.
    Therefore, with the exception of the two labeling issues
    noted by the motion judge, plaintiff failed to show that, even if
    his claims were proven, he had a reasonable belief that Pinnacle
    violated a specific law, rule, regulation, or clear mandate of
    public policy. Plaintiff failed to present sufficient evidence to
    show the required "close relationship" between his claims and the
    alleged violations of the FDCA and NLEA.
    IV.
    We turn to plaintiff's contention that the motion judge erred
    by finding that he did not present sufficient evidence to show
    that he engaged in whistle-blowing activity that is protected by
    17                          A-1895-15T2
    CEPA. In her decision, the motion judge concluded that although
    plaintiff had raised concerns about some of the company's practices
    and products, he had not raised any specific concern that the
    company was violating the FDCA or the NLEA.
    As the judge pointed out, the record shows that plaintiff's
    concerns related to the possible deviations from the company's
    internal   standards        and   specifications.       The   judge     noted      that
    plaintiff had raised legitimate business concerns "about practices
    that may result in the loss of customers or consumers purchasing
    the product." Indeed, it appears that this was precisely the role
    plaintiff had been hired to fulfill in his capacity as Pinnacle's
    Director   of      Product    Development.       Nevertheless,        the    concerns
    plaintiff raised did not rise to the level of whistle-blowing
    protected by CEPA.
    As    the     record     shows,      plaintiff's     responsibilities           as
    Pinnacle's    Director       of   Product      Development    were    part    of   the
    company's internal process for reviewing and assessing existing
    products     and    developing      new     products.    Among       other    things,
    plaintiff had the responsibility to ensure that the company's
    products conformed with its internal standards and specifications.
    In furtherance of his responsibilities, plaintiff reviewed the
    suitability of certain product ingredients, the contents of the
    18                                  A-1895-15T2
    jars,      the   lids    on    the    jars,     proposed   changes    to   product
    ingredients, and related labeling issues.
    That record also shows that in some instances, other persons
    or departments in the company agreed with plaintiff's views and
    in some instances, other persons or departments did not agree.
    There is no evidence that the disagreements represented an effort
    on   the    part   of    Pinnacle     to   introduce    adulterated      food   into
    interstate commerce, or regularly employ inaccurate labels on its
    products. We agree with the motion judge's conclusion that internal
    disputes regarding the products or the labels of the sort at issue
    in this case do not constitute whistle-blowing protected by CEPA.
    The judge's decision on this issue was consistent with the
    applicable law. See Hitesman v. Bridgeway, Inc., 
    218 N.J. 8
    , 31
    (2014)     (noting      that   CEPA    protects     employees   who    report      an
    employer's illegal or unethical conduct, but not routine disputes
    in the workplaces about internal policies or procedures); Maw v.
    Advanced Clinical Commc'ns, 
    179 N.J. 439
    , 445-46 (2004) (findings
    that    employee's       private      dispute    with   her   employer     about    a
    noncompete agreement was insufficient to support a claim under
    CEPA because employee had not shown a clear mandate of public
    policy regarding such agreements); Dzwonar, 
    supra,
     
    177 N.J. at 467-69
     (holding that a CEPA claim could not be premised on a
    disagreement about the manner in which a union conducted its
    19                               A-1895-15T2
    meetings or explained its actions to members because such a
    disagreement was not closely related to any statutory violation);
    Klein, supra, 
    377 N.J. Super. at 45
     (noting that CEPA was not
    intended to "settle internal disputes in the workplace").
    We therefore conclude the motion judge correctly found that
    plaintiff failed to present sufficient evidence to show that he
    engaged in whistle-blowing activity that is protected under CEPA.
    V.
    Plaintiff     also   argues   that    the    motion    judge   erred     by
    concluding that he did not present sufficient evidence to raise a
    genuine issue of material fact as to whether he had suffered an
    adverse employment action. He contends that reclassifying his
    position as an independent contributor was a demotion and his
    resignation   in   lieu   of    termination     was   the   equivalent   of    a
    termination. Again, we disagree.
    In her decision, the motion judge noted that not every
    employment action "that makes an employee unhappy" is an adverse
    employment    action    under   CEPA.     The    judge   determined   that     a
    reasonable juror could not find that Pinnacle took any retaliatory
    action against plaintiff that is actionable under CEPA.
    CEPA defines retaliatory action as "the discharge, suspension
    or demotion of an employee, or other adverse employment action
    taken   against    an   employee   in     the    terms   and   conditions     of
    20                                A-1895-15T2
    employment." N.J.S.A. 34:19-2(e). "[E]mployer actions that fall
    short of [discharge, suspension, or demotion] may nonetheless be
    the equivalent of an adverse employment action." Cokus v. Bristol
    Myers Squibb Co., 
    362 N.J. Super. 366
    , 378 (Law Div. 2002), aff'd,
    
    362 N.J. Super. 245
     (App. Div.), certif. denied, 
    178 N.J. 32
    (2003).     Actions      that    negatively        affect      an     employee's
    "compensation," "rank," or "terms and conditions of employment,"
    can serve as the "functional equivalent of a demotion." Beasley
    v. Passaic Cty., 
    377 N.J. Super. 585
    , 608 (App. Div. 2005).
    Here, the motion judge observed that after the incident in
    which   plaintiff     had   allegedly   yelled     at   a   worker    at   one     of
    Pinnacle's production plants, the company reclassified plaintiff's
    position as an independent contributor. The judge pointed out,
    however,     that     plaintiff's    grade    level,        compensation,        and
    scientific-work       responsibilities    remained      the   same.    The     only
    difference was that subordinates would not report to plaintiff.
    The judge observed that plaintiff had not inquired about the
    details of the reclassification, but rejected the position "based
    on   his   personal    perception"   that    the   reclassification          was    a
    demotion. The judge stated that there was no objective evidence
    supporting plaintiff's "personal perception." The judge also noted
    that when plaintiff offered to resign, Album told him to take a
    few days "to think things over," while the company investigated
    21                                    A-1895-15T2
    the complaints regarding plaintiff's dealings with other Pinnacle
    employees.
    Later, plaintiff met with Album and he was told he could
    resign or he would be terminated. Plaintiff chose to resign. The
    judge   stated    that    Pinnacle's     decision    to   accept   plaintiff's
    resignation was not an adverse employment action because plaintiff
    had made clear before the meeting that he would never accept the
    position of independent contributor.
    The   judge    commented   that   plaintiff    chose   to   resign   his
    position. He made the "unilateral and voluntary determination that
    he would never accept the position of independent contributor."
    The judge decided that under the circumstances, plaintiff could
    not establish that he had been subject to either a constructive
    discharge or an adverse-employment action.
    We are convinced that the record supports the motion judge's
    determination. Plaintiff failed to show that he was demoted or
    otherwise subjected to an adverse employment action. His position
    was changed to independent contributor, but he failed to show that
    there was any adverse change to his compensation or benefits.
    Plaintiff decided he would not accept the reclassification of his
    position, and he decided to resign rather than be terminated.
    As the judge pointed out in her decision, not every action
    that    makes    an    employee   unhappy    constitutes      an   actionable
    22                              A-1895-15T2
    retaliatory action under CEPA. Nardello v. Twp. of Voorhees, 
    377 N.J. Super. 428
    , 434 (App. Div. 2005). Plaintiff claims without
    any factual support that his reclassification as an independent
    contributor is tantamount to a demotion. Although the record shows
    that subordinates would no longer report to him, he failed to show
    that the reclassification was, in fact, a demotion.
    Plaintiff also argues that he was offered the opportunity to
    either resign or be fired, and that under the circumstances, his
    employment     was     terminated.    The   record   shows,   however,    that
    plaintiff decided he would not under any circumstances accept the
    reclassification of his position. As the motion judge determined,
    plaintiff voluntarily resigned.
    In view of our decision, we need not consider whether there
    is   a    causal     connection   between   plaintiff's   alleged   protected
    conduct and the alleged retaliatory action, or whether the reasons
    Pinnacle gave for the alleged retaliatory action were pretextural.
    Affirmed.
    23                             A-1895-15T2