CHARLES KANE VS. PUBLIC SERVICE ELECTRIC & GAS (L-1292-15, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5021-16T1
CHARLES KANE,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC &
GAS and CALVIN LEDFORD,
Defendants-Respondents.
_______________________________
Argued September 20, 2018 – Decided January 31, 2019
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-1292-15.
Robyne D. LaGrotta argued the cause for appellant
(LaGrotta Law, LLC, attorneys; Robyne D. LaGrotta,
of counsel and on the briefs).
Michael T. Kenny argued the cause for respondents.
PER CURIAM
Plaintiff Charles Kane appeals from two orders, the first entered in
November 2015, dismissing his claim for intentional infliction of emotional
distress and rejecting application of the continuing violation theory to his
retaliation claim under the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, and the second entered in June 2017 granting summary
judgment on the CEPA claim. Finding no error in either order, we affirm. 1
The essential facts are undisputed. Plaintiff was hired by defendant Public
Service Electric & Gas in 1987 and remains in its employ as an energy analyst.
In March 2011, he reported a problem with transmitting certain data to
Pennsylvania Jersey Maryland Interconnection (PJM), which operates the power
grid. PSE&G reports energy load data to PJM in the form of a "preliminary load
profile" generated each day of the energy and capacity used on an hourly basis
two days earlier. A "final load profile" providing a more accurate assessment is
generated on a monthly basis. Reconciliation of any differences between the
preliminary and final profiles is reported monthly to establish final settlements
1
As part of the 2015 order, the trial court also dismissed plaintiff's claims for
trade libel, tortious interference and negligent infliction of emotional distress.
Plaintiff has not briefed those claims on appeal. We accordingly deem them
abandoned. See Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App.
Div. 2015); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.
2:6-2 (2019) ("It is, of course, clear that an issue not briefed is deemed
waived.").
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between PJM and the third-party suppliers responsible for procuring the energy
required. Following an upgrade to PSE&G's website, plaintiff learned that
although the final profile data was updating correctly on PSE&G's public site,
its retail office system was not receiving those updates.
Plaintiff reported the problem to his supervisor, defendant Calvin Ledford,
who directed plaintiff to have the vendor look into it. Two months later, in May
2011, the vendor reported it had diagnosed the problem and advised it would
require approximately ten hours to fix. Plaintiff reported the news to Ledford,
who, after conferring with his supervisor, put it on a list to be addressed when
time and resources permitted. The problem was finally corrected in March 2012.
In the meantime, however, plaintiff received a mid-year performance
appraisal from Ledford on August 18, 2011, rating plaintiff as "partially
meet[ing] expectations," which plaintiff characterized as his "first bad appraisal
in twenty-three years." Plaintiff claimed he immediately felt dizzy and
experienced chest pains. He left work early that day and commenced a six-
month paid medical leave "for hospitalization and treatment for mental health
problems."
When he returned to work in March 2012, plaintiff elected to appeal his
2011 mid-year appraisal. Following a meeting with human resources in
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September 2012 about his appeal, plaintiff sent Ledford an email saying he
needed a co-worker to finish certain work for him because he had just "met with
HR and am shaking like a leaf." Plaintiff wrote he had "taken two different pills
but am feeling worse" to which Ledford replied, "go home and contact your
doctor immediately! Don't worry about the work." Although plaintiff testified
at deposition he was confused and dizzy and "could not find the letters on the
keyboard," he refused Ledford's offer to call him an ambulance. Ledford finally
had security escort plaintiff to his car. Plaintiff again went out on paid medical
leave for four months.
When he returned to work in March 2013, plaintiff pursued his appeal of
his 2011 mid-year performance appraisal "for therapeutic reasons." Plaintiff
told the appeal panel he was obsessed with thoughts of his appraisal, being
escorted out of the building and ethical issues he thought were being ignored by
PSE&G. He advised the panel that he and his psychiatrist hoped a change to his
rating would let him move on with his life. Plaintiff argued the mistakes he
made, if any, were minor, compared with the profile problem managed by
Ledford. The appeal panel declined to change the "partially meets expectations"
rating and found no error in Ledford's decision to have security escort plaintiff
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out of the building in 2012. The panel did determine plaintiff would receive his
$1900 bonus for 2011.
Refusing to accept the panel's decision, plaintiff sent a certified letter,
written with the assistance of a lawyer, to PSE&G's ethics counsel in October
2013 rehashing his complaints. Following a meeting with ethics counsel on the
same topics ten months later in August 2014, plaintiff sent counsel an email on
September 2 requesting a meeting with the president and the CEO of PSE&G.
Plaintiff related he had been unable to sleep the night before "despite tak[in g]
several sleeping pills and tranquilizers." He wrote he had "stated and written
numerous occasions my efforts to change my midyear 2011 appraisal had
numerous purposes, especially therapeutic with hopes and anticipation of
resolving obsessive compulsive thoughts and other mental illnesses and trying
to move on with my life without [further psychiatric] treatment."
Plaintiff stated the "email is just another example of obsessive thinking
'put to paper.'" He wrote "[t]hese thoughts are often continuous on a daily basis"
and that he could "spend hours talking non-stop" about them, which he believed
the president of PSE&G "would like to hear." He closed the email noting he
had "just seen [his] boss 5 minutes ago. It is late at night and nobody else
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around. I hope to be in my car in 10 minutes and go home to prepare for our
meeting," which he "would try to be available [for] anytime, 24 hours a day."
Ethics counsel immediately forwarded the email to human resources,
which referred the matter the next day to Dr. Binetti, PSE&G's behavioral health
manager. After meeting with plaintiff on September 3, Binetti noted that
plaintiff was suffering from ongoing psychological problems and ordered him
out of work. Binetti required plaintiff to produce a note from his treatment
provider that his psychiatric condition was in remission and he was capable of
performing at work before he would be allowed to return. Plaintiff's
psychologist agreed plaintiff should not be at work and he again went out on
medical leave, returning fourteen months later in November 2015. Plaintiff filed
this suit in February 2015 during that leave.
The trial court granted defendants' motion to dismiss plaintiff's complaint
for intentional infliction of emotional distress, finding the only act occurring
within the two-year tort limitations period was Dr. Binetti placing plaintiff on
medical leave in September 2014, a decision with which plaintiff's own
psychologist concurred and thus one clearly not actionable. The court further
found that even considering plaintiff's negative performance appraisal in 2011
and being escorted out of the building in 2012, those acts, considered singly or
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in combination, were simply not so outrageous and extreme that no reasonable
human being could be expected to endure them. See Buckley v. Trenton Saving
Fund Soc'y, 111 N.J. 355, 368 (1988).
The court also limited plaintiff's CEPA claim to events occurring during
the one-year statutory limitations period, rejecting plaintiff's continuing
violation theory. The court ruled the two events plaintiff claimed were part of
a continuing tort, his 2011 performance appraisal and his 2012 escort from the
building, were both clearly discrete acts, for which a cause of action accrued on
the day they occurred. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J.
1, 21 (2002). The court ruled those two claims were thus time-barred. The court
permitted plaintiff to proceed on his CEPA claim for acts occurring within the
one-year period preceding his complaint.
Following discovery, a different judge granted summary judgment to
defendants on plaintiff's CEPA claim, finding plaintiff failed to establish the
first prong of his prima facie case under N.J.S.A. 34:19-3(a), namely that he
reasonably believed that PSE&G's conduct in not reporting the final load
profiles to PJM violated either a "law, or a rule or regulation promulgated
A-5021-16T1
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pursuant to law."2 N.J.S.A. 34:19-3(a)(1); see Kolb v. Burns, 320 N.J. Super.
467, 476 (App. Div. 1999). Plaintiff's counsel conceded at argument that she
could not identify a specific law or regulation PSE&G violated, and that in the
course of discovery defendants produced manuals making clear "there is no
obligation for them to do certain things." She argued, however, that at the time
plaintiff "reported it to the company, he believed it was illegal" and that "public
policy should stand for proper recording."
The court noted plaintiff alleged in his complaint that PSE&G's failure to
use final load profiles in its retail office system "means billing could be incorrect
for every hour of every day for every supplier of electricity to customers residing
in the PSE&G territory." When questioned at his deposition, however, plaintiff
explained he did not "get involved with PJM . . . and how they charge the
electrical suppliers and how they credit electrical suppliers," and that he had "no
idea what the financial implications are . . . by choosing not to use the final
profiles." Because the judge concluded plaintiff could not establish the first
2
We note the Supreme Court has recently granted certification to consider
whether a plaintiff in a CEPA action was "required, as part of his prima facie
case, to identify a specific law, regulation, or other authority that he reasonably
believed had been violated." See Chiofalo v. State, No. A-2349-16 (App. Div.
June 21, 2018) (slip op.), certif. granted, __ N.J. __ (Dec. 17, 2018).
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prong of his prima facie case, she did not address plaintiff's proofs on the
remaining elements.
Plaintiff appeals, arguing the trial court erred in dismissing his claim for
intentional infliction of emotional distress, in ruling there was no continuous
tort connecting the adverse employment actions taken against him and in
dismissing his CEPA claim. We reject those arguments as without merit.
First, we agree with the trial court that whether one considers the two acts
plaintiff now identifies as falling within the two-year limitations period for an
intentional infliction of emotional distress claim, PSE&G's 2013 refusal to alter
plaintiff's 2011 performance appraisal and Dr. Binetti placing plaintiff on
medical leave in 2014, or the two additional acts falling outside the statute, the
2011 appraisal and plaintiff being escorted out of the building in 2012, they do
not, singularly or in combination, meet Buckley's test of being “so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Buckley, 111 N.J. at 366 (citation omitted).
As we have noted elsewhere, "[e]xcept for the kind of aggravated
discriminatory conduct involved in Taylor [v. Metzger, 152 N.J. 490 (1998)],
'it is extremely rare to find conduct in the employment context that will rise to
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the level of outrageousness necessary to provide a basis for recovery for the tort
of intentional infliction of emotional distress.'" Griffin v. Tops Appliance City,
Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001) (quoting Cox v. Keystone
Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). "By circumscribing the cause
of action with an elevated threshold for liability and damages, courts have
authorized legitimate claims while eliminating those that should not be
compensable." Id. at 23 (quoting Buckley, 111 N.J. at 367). Appropriately
applying that elevated threshold here, the trial court correctly determined
plaintiff failed to adduce sufficient evidence to sustain an intentional infliction
of emotional distress claim.
Second, we also agree plaintiff's 2015 CEPA complaint was properly
dismissed on summary judgment, and the continuing violation theory could not
be invoked to revive plaintiff's stale claims regarding his 2011 performance
appraisal, his 2012 escort out of the building and PSE&G's 2013 refusal to alter
or rescind the 2011 appraisal.
In order to succeed on a CEPA claim, an employee must demonstrate:
(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[]; (3) an adverse employment action was taken
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against him or her; and (4) a causal connection exists
between the whistle-blowing activity and the adverse
employment action.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
Our Supreme Court has characterized a CEPA plaintiff's obligation to
identify a law, rule, regulation, or clear mandate of public policy "that bears a
substantial nexus to his or her claim" as "a pivotal component of a CEPA claim."
Hitesman v. Bridgeway, Inc., 218 N.J. 8, 32 (2014). "[T]he plaintiff must
identify the authority that provides a standard against which the conduct of the
defendant may be measured." Id. at 33. The Court has directed that a "trial
court can and should enter judgment for a defendant when no such law or policy
is forthcoming." Dzwonar, 177 N.J. at 463; see also Pierce v. Ortho Pharm.
Corp., 84 N.J. 58, 73 (1980) ("If an employee does not point to a clear expression
of public policy, the court can grant a motion to dismiss or for summary
judgment."). As plaintiff conceded he knew of no law or any mandate of public
policy, other than "proper recording" he contends PSE&G violated by its failure
to transmit final load profiles to PJM, we agree his CEPA claim foundered on
the first prong.
We also conclude plaintiff could not establish the third prong, that he
suffered an adverse employment action within the statute's one-year limitations
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period. See N.J.S.A. 34:19-5. CEPA prohibits an employer from taking
"retaliatory action against an employee" because of whistle-blowing activity.
N.J.S.A. 34:19-3. The statute 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 employment." N.J.S.A.
34:19-2(e). "Adverse employment action" is defined broadly in light of the
remedial purposes of the statute and may include such things as "making false
accusations of misconduct, giving negative performance reviews, issuing an
unwarranted suspension, and requiring pretextual mental-health evaluations."
Donelson v. DuPont Chambers Works, 206 N.J. 243, 257-58 (2011).
Further, an adverse employment action need not take the form of a "single
discrete act," but can be "many separate but relatively minor instances of
behavior directed against an employee that may not be actionable individually
but that combine to make up a pattern of retaliatory conduct." Green v. Jersey
City Bd. of Educ., 177 N.J. 434, 448 (2003). Our Court has adopted the United
States Supreme Court's formulation of "a continuing violation as 'a series of
separate acts that collectively constitute one unlawful employment practice.'"
Roa v. Roa, 200 N.J. 555, 567 (2010) (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002)).
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Critically, however, "the continuing violation theory cannot be applied to
sweep in an otherwise time-barred discrete act." Id. at 569. As Justice Long
explained in Roa:
[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 discrimination. 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 discriminatory acts for the
purpose of reviving an untimely act of discrimination
that the victim knew or should have known was
actionable.
[Ibid.]
The application of those principles here means that plaintiff's CEPA claim
alleging retaliation based on his 2011 performance appraisal is time-barred,
whether or not the continuous violation theory is applied. There can be no doubt
on this record but that plaintiff believed as soon as he received his mid-year
appraisal in August 2011 that he was the victim of retaliation by defendants.
Accordingly, he had to file suit on that claim by August 2012, or not at all.
Moreover, because plaintiff did not file his complaint until February 2015,
the only alleged retaliatory act he identifies occurring within the limitations
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period is Dr. Binetti placing plaintiff on medical leave in 2014. Plaintiff's own
doctors, however, agreed he was not fit to work at that time and should be on
medical leave. Accordingly, we do not see how PSE&G placing plaintiff on
medical leave could possibly qualify as retaliatory under the statute. See
Donelson, 206 N.J. at 258 (including only "pretextual mental-health
evaluations" among adverse employment actions constituting reprisal); cf.
Beasley v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div. 2005) (noting that
where "the affected party does not deny committing an infraction that resulted
in discipline, the discipline cannot be considered 'proscribed reprisal'"); see also
Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (requiring a
plaintiff to undergo a psychological evaluation does not, on its own, constitute
an adverse employment action). Even assuming plaintiff's claim consists of a
series of discriminatory non-discrete acts, which we do not, because he cannot
show that "at least one of those acts occurred within the statutory limitations
period," Shepherd, 174 N.J. at 7, the continuing violation theory is not available
to render any aspect of his CEPA claim timely. Accordingly, the claim was
appropriately dismissed on summary judgment for that reason as well.
Affirmed.
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