Brian Sullivan v. the Port Authority of New York and ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3506-14T1
BRIAN SULLIVAN,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, March 15, 2017
v. APPELLATE DIVISION
THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY; MICHAEL FEDORKO,
(acting in his individual and
official capacities); MARY LEE
HANNEL, (acting in her individual
and official capacities); RICHARD
WILLIAMS, (acting in his individual
and official capacities); ROBERT E.
VAN ETTEN, (acting in his individual
and official capacities); and MICHAEL
NESTOR, (acting in his individual
and official capacities),
Defendants-Respondents.
_____________________________________
Argued October 13, 2016 – Decided March 15, 2017
Before Judges Simonelli, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-2340-13.
Donald F. Burke argued the cause for
appellant (Law Office of Donald F. Burke,
attorneys; Mr. Burke and Donald F. Burke,
Jr., on the briefs).
Cheryl N. Alterman argued the cause for
respondents (Margaret Taylor-Finucane,
attorney; Ms. Alterman, on the briefs).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
Plaintiff Brian Sullivan, a former at-will employee of
defendant Port Authority of New York and New Jersey (Port
Authority), filed a complaint against the Port Authority and
individual defendants, alleging retaliation and civil conspiracy
in violation of the New Jersey Conscientious Employee Protection
Act (CEPA), N.J.S.A. 34:19-1 to -14. The trial court granted
summary judgment to defendants and dismissed the complaint with
prejudice, finding the Port Authority is not subject to suit
under CEPA. We agree, and affirm.
Defendants supported their summary judgment motion with a
statement of material facts and two certifications with attached
documents. Plaintiff did not file a responding statement either
admitting or disputing each fact in defendants' statement, nor
did he file a responding statement of additional facts, as
required by Rule 4:46-2(b). Plaintiff also did not file an
affidavit or certification setting forth specific facts showing
there was a genuine issue for trial, as required by Rule 4:46-
5(a), nor did he provide any deposition transcripts or certified
answers to interrogatories. Rather, he improperly relied on the
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unverified allegations in his complaint, as he does in his
merits brief on appeal. See R. 4:46-5(a) (prohibiting an
adverse party from relying on the mere allegations of his
pleading to oppose summary judgment). Plaintiff's reliance on
the bare conclusions in the complaint without support in
affidavits was insufficient to defeat defendants' summary
judgment motion. U.S. Pipe & Foundry Co. v. Am. Arbitration
Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961).
We derive the following facts from the evidence defendants
submitted in support of their motion. From February 9, 1987, to
June 6, 2012, plaintiff was employed as a police officer in the
Port Authority's Public Safety Department. He attained the rank
of police inspector. As an inspector, he held the position of
Subject Matter Expert and participated in the development and
administration of the evaluation and exam process for police
officers seeking promotion to the rank of sergeant. In June
2011, he acknowledged receipt of and signed a document entitled
"Subject Matter Expert, Test Security Instructions," which
required him to immediately notify the Assessment Specialist and
the Supervisor of Assessment Services if he became aware of or
suspected any type of improper conduct or other improprieties
associated with the evaluation process or any of its components.
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Plaintiff became aware of improper conduct and/or other
improprieties associated with the exam process for the sergeant
position, which compromised the integrity of the exam. He
failed to notify anyone of this improper conduct, and provided
no competent evidence to the contrary. Following an
investigation by the Office of Inspector General, the Port
Authority's Human Resources Department recommended that
plaintiff be permitted to retire prior to the filing of
disciplinary charges for failing to report the improprieties.
On June 6, 2012, plaintiff tendered his resignation and
retired from the Port Authority. In August 2012, he served a
notice of claim on the Port Authority, alleging violations of
the New York Whistleblower Law (NYWL), N.Y. Lab. Law § 740, and
the New York Civil Service Law. N.Y. Civ. Serv. Law § 75(b).
On May 15, 2013, plaintiff filed a complaint against
defendants in the Superior Court of New Jersey, alleging
retaliation and civil conspiracy in violation of CEPA.
Plaintiff sought injunctive relief in the form of reinstatement
and damages. Following the completion of discovery, defendants
filed a motion for summary judgment. Defendants argued that the
Port Authority is not subject to CEPA because it is a bi-state
agency created pursuant to an interstate compact and did not
expressly or impliedly consent to suit pursuant to this single-
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state legislation, and the NYWL is not complementary or parallel
to CEPA.
In response to defendants' summary judgment motion,
plaintiff withdrew his claim for reinstatement. On appeal,
plaintiff improperly attempts to resurrect this issue in a
footnote in his merits brief. See Almog v. Israel Travel
Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div.)
(holding that legal issues raised in footnotes but not made
under appropriate point headings as required by Rule 2:6-2(a)(5)
will not be considered on appeal), certif. granted, 151 N.J. 463
(1997), appeal dismissed, 152 N.J. 361 (1998). In addition,
concessions made during a summary judgment motion foreclose a
contrary argument on appeal. Ji v. Palmer, 333 N.J. Super. 451,
459 (App. Div. 2000).
The motion judge found that the Port Authority was created
in 1921 by a bi-state compact between New York and New Jersey
and the compact did not expressly provide for unilateral state
action under CEPA. The judge also found that CEPA and the NYWL
were not substantially similar so as to impliedly alter the
compact. The judge granted summary judgment and dismissed the
complaint with prejudice. In granting summary judgment to the
individual defendants, the judge found that they did not take
any independent action against plaintiff. Plaintiff improperly
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challenges this ruling in a footnote. Almog, supra, 298 N.J.
Super. at 155.
On appeal, plaintiff contends that the judge erred in
granting summary judgment because, pursuant to the broad
provisions of N.J.S.A. 32:1-157 and N.Y. Unconsol. Laws § 7101,
New York and New Jersey expressly consented to suit under CEPA
as long as venue is properly laid, a notice of claim is filed
sixty days before suit is filed, and suit is filed within one
year of the accrual of the cause of action. Plaintiff argues
that because of these broad consent-to-suit statutes, the
parallel and complementary implied consent analysis is
inapplicable.
We decline to address plaintiff's additional argument that
the Port Authority is routinely subjected to suits based on
single-state laws. Plaintiff did not raise this issue before
the motion judge and it is not jurisdictional in nature nor does
it substantially implicate the public interest. Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (citation omitted). We also
decline to consider documents included in plaintiff's appendix
as exhibits Pa99 to Pa113. Plaintiff did not present these
documents to the motion judge. See N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 278 (2007). In addition, the Port
Authority's Whistleblower Protection Policy, included in
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plaintiff's appendix as Pa110 to Pa113 does not apply here, as
it was adopted after his resignation. See Port Authority
Whistleblower Protection Policy (Mar. 19, 2015), available at
http://corpinfo.panynj.gov/documents/port-authority-
whistleblower-protection-policy/.
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016) (citation omitted). That standard compels the grant of
summary judgment "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." Id. at 179
(quoting R. 4:46-2(c)). "To defeat a motion for summary
judgment, the opponent must 'come forward with evidence that
creates a genuine issue of material fact.'" Cortez v. Gindhart,
435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue
Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App.
Div.), certif. denied, 211 N.J. 608 (2012)), certif. denied, 220
N.J. 269 (2015). "[C]onclusory and self-serving assertions by
one of the parties are insufficient to overcome the motion."
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Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations
omitted).
If there is no genuine issue of material fact, we must then
"decide whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We
review issues of law de novo and accord no deference to the
trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J.
463, 478 (2013). "[F]or mixed questions of law and fact, [we]
give deference . . . to the supported factual findings of the
trial court, but review de novo the lower court's application of
any legal rules to such factual findings." State v. Pierre, 223
N.J. 560, 577 (2015) (citations omitted). Applying the above
standards, we discern no reason to reverse.
The Port Authority was created in 1921 by a bi-state
compact entered into between the states of New York and New
Jersey and approved by Congress. Santiago v. N.Y. & N.J. Port
Auth., 429 N.J. Super. 150, 156 (App. Div. 2012) (quoting Brown
v. Port Auth. Police Superior Officers Ass'n, 283 N.J. Super.
122, 130 (App. Div. 1995)), certif. denied, 214 N.J. 175 (2013).
The 1921 compact gave the Port Authority "such additional powers
and duties as may hereafter be delegated to or imposed upon it
from time to time by the action of the legislature of either
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state concurred in by the legislature of the other." N.J.S.A.
32:1-8; N.Y. Unconsol. Laws § 6408.
"Prior to 1951, the Port Authority was immune from suit."
Santiago, supra, 429 N.J. Super. at 158 (quoting Wood v.
DIC/Underhill & Universal Builders Supply Co., 136 N.J. Super.
249, 252 (Law. Div. 1975), aff'd o.b., 144 N.J. Super. 364, 365
(App. Div. 1976), certif. denied, 73 N.J. 65 (1977)). In 1951,
the Port Authority's sovereign immunity was waived and the
compact was amended to provide that "the States of New York and
New Jersey consent to suits, actions, or proceedings of any form
or nature at law, in equity or otherwise[.]" N.J.S.A. 32:1-157;
N.Y. Unconsol. Laws § 7101. New York and New Jersey also
enacted a more specific consent to suit provision for tortious
acts by the Port Authority or its agents. N.J.S.A. 32:1-162;
N.Y. Unconsol. Laws § 7106. However, the compact expressly
prohibits unilateral action by one state without the concurrence
of the legislature of the other state. N.J.S.A. 32:1-8; N.Y.
Unconsol. Laws § 6408.
The scope of consent is expressly conditioned upon
compliance with the notice provisions of N.J.S.A. 32:1-163; N.Y.
Unconsol. Laws § 7107. Santiago, supra, 429 N.J. Super. at 160.
Failure to comply with the notice requirements "withdraws the
consent to suit, and thus, deprives the court of subject matter
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jurisdiction." Ibid. (quoting Port Auth. of N.Y. and N.J. v.
Airport Auto. Servs., Inc., 396 N.J. Super. 427, 430 (App. Div.
2007)). Defendants do not assert that plaintiff failed to
comply with the notice requirements.
"The Port Authority is not the agency of a single state but
rather a public corporate instrumentality of New Jersey and New
York." Bunk v. Port Auth. of N.Y. & N.J., 144 N.J. 176, 184
(1995). Neither state may unilaterally impose additional
duties, powers, or responsibilities on the Port Authority.
Ibid. (citations omitted). The laws of one state cannot be
applied to the Port Authority without the other state's consent.
hip (Heightened Independence & Progress), Inc. v. Port Auth. of
N.Y. & N.J., 693 F.3d 345, 358 (3d Cir. 2012); King v. Port
Auth. of N.Y. & N.J., 909 F. Supp. 938, 945 (D.N.J. 1995),
aff'd, 106 F.3d 385 (3d Cir. 1996); see also Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 42, 115 S. Ct. 394, 402, 130 L.
Ed. 2d 245, 257 (1994) (holding that "bistate entities created
by compact . . . are not subject to the unilateral control of
any one of the States that compose the federal system"). "[T]he
unilateral imposition of additional duties on the authority
. . . is impermissible absent express authorization in the
compact or joint legislation by the two creator states."
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Ballinger v. Del. River Port. Auth., 172 N.J. 586, 594 (2002)
(citations omitted).
"Nonetheless, [t]he corollary of the proposition that
neither state may unilaterally impose its legislative will on
the bi-state agency is that the agency may be subject to
complementary or parallel state legislation[.]" Santiago,
supra, 429 N.J. Super. at 157 (citations omitted). "Under the
'complementary or parallel legislation' principle, one compact
state's [law] can be applied to the bi-state agency if it is
'substantially similar' to an enactment of the other state."
Ibid. (quoting Ballinger, supra, 172 N.J. at 594). If the
states do not have complementary legislation, the court must
determine whether the bi-state agency impliedly consented to
unilateral state regulation. Ballinger v. Del. River Port.
Auth., 311 N.J. Super. 317, 324 (App. Div. 1998) (citation
omitted), aff'd, 172 N.J. 586 (2002). The complementary or
parallel legislation analysis does not apply to plaintiff's
common law wrongful termination claims, as New York has no
common law cause of action for wrongful termination. See Hassan
v. Marriot Corp., 243 A.D.2d 406, 407 (N.Y. App. Div. 1st Dept.
1997). Thus, we focus on plaintiff's CEPA claim.
Neither the 1921 compact nor the 1951 amendments expressly
provide for application of CEPA against the Port Authority. To
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the contrary, the compact expressly prohibits unilateral action
without the concurrence of the sister state. N.J.S.A. 32:1-8;
N.Y. Unconsol. Laws § 6408. Nonetheless, we must determine
whether CEPA is substantially similar to the NYWL so as to alter
the compact to allow application of CEPA against the Port
Authority.
"In order to be deemed substantially similar, the two laws
at issue must 'evidence some showing of agreement.' In other
words, the New Jersey and [New York] legislatures must 'have
adopted a substantially similar policy' that is apparent in
their respective statutes." Ballinger, supra, 172 N.J. at 600
(quoting Int'l Union of Operating Engr's, Local 68 v. Del. River
& Bay Auth., 147 N.J. 433, 445, 447 (1997)). Factors to be
considered in determining whether laws are substantially similar
include: (1) the scope of the comparative laws; (2) the filing
limitations period; (3) the types of remedies and damages
available; and (4) the right to trial by jury. See Ibid.
While CEPA and the NYWL have a one-year statute of
limitations, see N.J.S.A. 34:19-5; N.Y. Consol. Laws
§ 740(4)(a), they are significantly dissimilar in scope. Under
CEPA, New Jersey employees are protected from retaliatory
actions if they disclose or threaten to disclose any activity,
policy, or practice that they reasonably believe violated a
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rule, law, or regulation, and need not prove an actual violation
of the law or clear mandate of public policy in order to
rpevail. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Under
the NYWL, New York employees are only protected if they disclose
or threaten to disclose any activity, policy, or practice that
they reasonably believe violates a law, rule, or regulation
which "creates and presents a substantial and specific danger to
the public health or safety, or which constitutes health care
fraud[.]" N.Y. Lab. Law § 740(2)(a); see also Bordell v. Gen.
Elec. Co., 208 A.D.2d 219, 221 (N.Y. App. Div. 3d Dept. 1995),
aff'd, 88 N.Y.2d 869 (N.Y. 1996). Notably, plaintiff does not
argue or present a claim under the NYWL that his alleged
disclosure of improper conduct or other improprieties associated
with the evaluation and exam process for the sergeant position
constituted a "substantial threat to public safety." In any
event, unlike the NYWL, CEPA does not require proof of an actual
and substantial present danger to the public health or safety.
Compare Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169, 176-
78 (N.Y. App. Div. 2d Dept. 1989) (discussing requirement that
action must harm public safety), with Abbamont v. Piscataway
Twp. Bd. of Educ., 138 N.J. 405, 429-30 (1994) (finding that
deterrence may be a proper basis for bringing a CEPA claim).
This difference would substantially extend CEPA protection to a
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much broader class of employees than the NYWL. It, therefore,
constitutes an impermissible unilateral expansion of the Port
Authority's liability.
CEPA and the NYWL are also significantly dissimilar with
respect to the types of remedies and damages available. CEPA
permits recovery of punitive damages, whereas the NYWL does not.
Compare N.J.S.A. 34:19-5 and -13, with N.Y. Lab. Law § 740(5);
compare also Longo v. Pleasure Prod., Inc., 215 N.J. 48, 57
(2013) (noting that "existing authority indicates that CEPA
. . . specifically permits . . . punitive damages"), with
Granser v. Box Tree S., 623 N.Y.S.2d 977, 984 (N.Y. Sup. Ct.
1994) (holding that the plaintiff was not entitled to an award
of punitive damages if he prevailed under N.Y. Lab. Law § 740).
CEPA also permits the assessment of civil fines against the
employer, whereas the NYWL has no such provision. See N.J.S.A.
34:19-5(e), -13. These differences, if applied against the Port
Authority, would constitute an impermissible unilateral
expansion of the Port Authority's liability.
Lastly, CEPA provides for trial by jury, whereas the NYWL
does not. Compare N.J.S.A. 34:19-5, with N.Y. Lab. Law
§ 740(5); compare also Abbamont, supra, 138 N.J. at 425-26
(noting that in amending CEPA, the Legislature provided for jury
trials), with Scaduto v. Rest. Assoc. Indus., Inc., 180 A.D.2d
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458, 459 (N.Y. App. Div. 1st Dept. 1992) (noting that by its
express terms, N.Y. Lab. Law § 740(5) "states that it is the
court itself which awards relief"). In sum, because CEPA and
the NYWL are not complementary or parallel, applying CEPA to the
Port Authority would impermissibly subject the agency to single-
state legislation.
Because New York and New Jersey do not have complementary
or parallel whistleblower legislation, we must determine whether
the Port Authority impliedly consented to unilateral state
regulation under CEPA. As we stated in Santiago:
[E]ven though [the Third Circuit Court of
Appeals did] not recognize implicit
modifications of an interstate compact as
the New Jersey Supreme Court might, both
jurisdictions require evidence of mutual
intent to alter a compact and regulate the
bi-state agency, regardless of whether the
action taken by the agency is 'external' or
'internal.'
[Santiago, supra, 429 N.J. Super. at 158 n.3
(quoting hip Heightened Independence, supra,
693 F.3d at 357-58 n.3).]
There is no evidence that New York and New Jersey mutually
intended to consent to suit under CEPA. To the contrary, the
clear and unambiguous language in the states' legislation
creating the Port Authority and the lack of complementary and
parallel whistleblower statutes confirm that New York and New
Jersey did not mutually intend to consent to suit against the
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Port Authority under CEPA. Accordingly, the Port Authority is
not subject to suit under CEPA.
Affirmed.
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