WILLIAM GAUGHAN VS. DEPTFORD TOWNSHIP MUNICIPAL UTILITIES AUTHORITY (L-1368-15, GLOUCESTER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5044-16T3
WILLIAM GAUGHAN,
Plaintiff-Appellant,
v.
DEPTFORD TOWNSHIP
MUNICIPAL UTILITIES
AUTHORITY,
Defendant-Respondent.
_______________________________
Argued October 15, 2018 – Decided December 28, 2018
Before Judges Messano and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Gloucester County, Docket No. L-1368-15.
Jacqueline M. Vigilante argued the cause for appellant
(The Vigilante Law Firm, PC, attorneys; Jacqueline M.
Vigilante and Kelly A. Hicks, on the briefs).
John C. Grady argued the cause for respondent (Craig,
Annin & Baxter, LLP, attorneys; John C. Grady, of
counsel and on the brief).
PER CURIAM
Plaintiff William Gaughan filed a complaint against his employer, the
Deptford Township Municipal Utilities Authority (defendant or DMUA),
alleging defendant violated the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14. Following discovery, defendant moved for
summary judgment, which the judge granted.
Before us, plaintiff essentially reiterates the arguments he made in the
Law Division. Plaintiff contends he established a prima facie case under CEPA
because he held an objectively reasonable belief that a fellow employee engaged
in unlawful conduct, and defendant acted contrary to the clear mandate of public
policy to provide a safe workplace by failing to curb that unlawful con duct.
Plaintiff alleges that when he complained, the DMUA retaliated against him by
filing disciplinary charges and ultimately suspending him.
We have considered these arguments in light of the record before the
motion judge. Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000). We
affirm.
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I.
The record demonstrates that plaintiff was employed by the DMUA since
1998 and worked with B.N. for more than ten years. 1 R.H. was defendant's
executive director, who oversaw the day-to-day operations of the DMUA, was
responsible for the hiring and firing of employees, and reported to defendant's
board of directors. E.D. served directly under R.H. as DMUA's superintendent.
Beginning in 2008, B.N. was the subject of multiple disciplinary actions
arising from verbal arguments and outbursts. In 2011, DMUA suspended B.N.
for three days after he verbally accosted R.H. and E.D. In July 2014, R.H.
learned that B.N. had allegedly challenged another employee, S.F., to fight.
After interviewing both men, R.H. issued them assignments that would keep the
two men separated while at work.
Nevertheless, in September, B.N. notified police and the DMUA that P.F.,
S.F.'s father, who was not a DMUA employee, punched him in the face as B.N.
sat in a DMUA vehicle. When interviewed by police, P.F. said that earlier, in
late July or early August, he went to B.N.'s home to quell a dispute between
B.N. and S.F. According to P.F., B.N. threatened his life and pointed a gun at
his head. P.F. never reported the incident to police or DMUA at the time, but
1
We use initials to maintain the confidentiality of other witnesses.
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plaintiff became aware of the alleged incident. When interviewed by police,
plaintiff told them about B.N.'s "severe anger issues," and that he was "in fear
of his life . . . and want[ed B.N.] removed permanently from the workplace."
The detective investigating the incidents was unable to establish probable cause
as to any criminal activity by B.N., but concluded that P.F. had "unlawfully
entered" B.N.'s home.
On September 26, 2014, the employees' union representative contacted
R.H. He claimed that three employees, later identified as plaintiff, S.F. and
R.M., feared B.N.'s conduct at work. R.H. launched an investigation. When he
interviewed plaintiff on September 29, plaintiff basically refused to answer
questions, threw a press clipping about workplace violence on the table and said
to R.H., "You are sitting on your hands like a little faggot." Two days later,
plaintiff walked off the job expressing concerns about his safety because B.N.
was present.2
On October 14, 2014, defendant's labor counsel responded to the
employees' union representative. She concluded defendant acted appropriately
in investigating the complaint of workplace violence, the complaint was
2
R.H. had ordered B.N. to come into work and be interviewed.
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unfounded, and plaintiff and his two co-employees filed what they "knew or
should have known" to be exaggerated or false claims about B.N.'s conduct.
Defendant served a preliminary notice of disciplinary action against
plaintiff, S.F. and R.M., citing plaintiff specifically for conduct unbecoming,
insubordination, violation of the collective negotiations agreement between his
union and the DMUA, and violation of DMUA's standards. The hearing officer
sustained all charges, finding plaintiff made "false and/or exaggerated
statements to [his] [u]nion representative" about threats of workplace violence,
walked off the job twice for "no apparent reason," and made "derogatory and
offensive" comments about R.H.
Noting plaintiff's two prior disciplinary matters, including a 2004 incident
in which defendant suspended plaintiff for violating DMUA rules and
regulations by making "threatening remarks" and engaging in
"aggressive/hostile behavior," the hearing officer sustained the proposed
discipline of ten days' suspension. 3 Plaintiff filed but withdrew an appeal to the
Civil Service Commission.
Plaintiff did not contest most of these facts when opposing the summary
judgment motion. Instead, he relied upon the DMUA's policies and procedures
3
The other two employees were also subjected to discipline for having made
exaggerated or false complaints about alleged workplace violence.
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regarding workplace violence and harassment; along with the deposition
testimony of R.H., E.D. and others who acknowledged plaintiff's fear of B.N.
was not "unreasonable."
II.
We review the grant of summary judgment de novo, applying the same
standard used by the trial judge, which
mandates that summary judgment be granted "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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).]
We must decide "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis or interpretation
of a statute. The Palisades At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade,
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LLC, 230 N.J. 427, 442 (2017) (citing Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995)).
CEPA prohibits an employer from taking "any retaliatory action against
an employee" who objects to conduct that "the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law,
. . . ; (2) is fraudulent or criminal . . . ; or (3) is incompatible with a clear mandate
of public policy concerning the public health, safety or welfare or protection of
the environment." N.J.S.A. 34:19-3(c). To establish a prima facie CEPA claim,
a plaintiff must establish: (1) "he reasonably believed" that his employer's
conduct was in violation of a law, rule, or "clear mandate of public policy"; (2)
he engaged in a "protected 'whistleblowing' activity as defined in N.J.S.A.
34:19-3(a) or [](c)"; (3) "an 'adverse employment action was taken against him'";
and (4) his "whistle[-]blowing activity" was causally connected to the adverse
action. See, e.g., Hitesman v. Bridgeway, Inc., 218 N.J. 8, 29 (2014) (citations
omitted).
We need not consider whether plaintiff established the second and third
elements for purposes of avoiding summary judgment. He clearly made a
complaint about B.N.'s conduct in the workplace, and the ten-day suspension
was retaliatory action as defined in CEPA. N.J.S.A. 34:19-2(e). We focus our
attention therefore on the first and fourth elements.
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As to the first element, plaintiff need not prove that the employer actually
violated a law or clear mandate of public policy but only that based on
articulated facts plaintiff believed to be true, he held a reasonable belief that a
violation occurred. Dzwonar v. McDevitt, 177 N.J. 451, 462-64 (2003).
Plaintiff argues that his fear of workplace violence was reasonable, given B.N.'s
past conduct and the deposition testimony of the DMUA supervisors, as was his
belief that defendant was not addressing the problem.
Nevertheless, a plaintiff also must identify a source of law or public policy
that provides a governing standard for assessing the employer's conduct.
Hitesman, 218 N.J. at 32-33. Then the trial court must determine whether there
is a "substantial nexus between the complained-of [employer's] conduct and a
law or public policy identified by . . . the plaintiff." Dzwonar, 177 N.J. at 464.
Whether a plaintiff has adequately identified a clear mandate of public policy in
the first instance is an issue of law. Mehlman v. Mobil Oil Corp., 153 N.J. 163,
187 (1998).
Plaintiff's complaint did not identify the clear mandate of public policy
allegedly violated by defendant. As noted, in opposing summary judgment and
during oral argument on the motion, plaintiff only identified the internal policies
and procedures of the DMUA regarding workplace violence and harassment.
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An employee's opposition to corporate policies or practices is insufficient
to implicate a violation of a clear mandate of public policy. Young v. Schering
Corp., 275 N.J. Super. 221, 234 (App. Div. 1994). While CEPA proscribes
employer conduct that is "unlawful or indisputably dangerous to the public
health, safety or welfare," it does not protect employees who suffer mere private
harm or disagree with an employer's decision. Mehlman, 153 N.J. at 193-94.
Moreover, as we said in Klein v. University of Medicine and Dentistry of New
Jersey, "CEPA was enacted to prevent retaliatory action by an employer against
an employee who 'blows the whistle on illegal or unethical activity committed
by their employers or co-employers,' not to assuage egos or settle internal
disputes at the workplace . . . ." 377 N.J. Super. 28, 45 (App. Div. 2005) (quoting
Estate of Roach v. Trw, Inc., 164 N.J. 598, 609-10 (2000)).
For the first time on appeal, plaintiff contends the DMUA violated the
clear mandate of public policy to provide its employees with a safe, violence -
free workplace as required by OSHA regulations 4 and an executive order signed
by Governor Christine Todd Whitman. However, "merely couching complaints
in terms of a broad-brush allegation of a threat to [employees'] safety is
insufficient to establish the first prong of a CEPA claim." Klein, 377 N.J. Super.
4OSHA refers to the Occupational Safety and Health Administration.
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at 42. Plaintiff conceded at oral argument in the Law Division that he was not
alleging that the DMUA did nothing to address his complaint about B.N.'s
conduct; rather, he argued defendant should have done more. CEPA, however,
"was not intended to provide a remedy . . . for employees who simply disagree
with an employer's decision, where that decision is entirely lawful." Young, 275
N.J. Super. at 237.
Plaintiff also contends that he held a reasonable belief that B.N. violated
the criminal law by threatening P.F. with a gun. We acknowledge that CEPA
protects an employee who objects to a co-employee's conduct that is unlawful
or criminal. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 410 (1999). As the
Court explained:
Filing a complaint, however, does not insulate the
complaining employee from discharge or other
disciplinary action for reasons unrelated to the
complaint. As a practical matter, a proper investigation
by the employer should reveal whether the basis for the
complaint is reasonable. The critical facts are those
that relate directly to the reasonableness of the
complaint. If credibility is a concern, other facts also
could become relevant. Even when an employer
conducts a thorough investigation of the alleged
misconduct, the evaluation of the employer's retaliatory
conduct focuses not on the reasonableness of the
employer's investigation, but on that of the underlying
complaint. As long as a reasonable basis exists for a
complaint about misconduct, whether of the employer
or of a co-employee, the complaining employee should
not be exposed to retaliation by the employer. An
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employer, however, retains the authority to dismiss an
employee for filing a complaint that is not supported by
an objectively reasonable basis.
[Id. at 424-25.]
Here, we doubt that any jury could conclude by a preponderance of the
evidence that plaintiff held a reasonable belief B.N. violated criminal laws by
threatening a member of the public with a gun. Plaintiff was not a witness to
the incident and relied solely upon what P.F. told him. Moreover, the police
investigation found no probable cause that a crime was committed and only
concluded that P.F. unlawfully entered B.N.'s home. Finally, plaintiff fails to
cite to any authority that holds he may assert a cognizable CEPA claim by
reporting a co-employee's off-duty unlawful conduct that does not involve
another co-employee, workplace activity or the employer's business.
Nevertheless, assuming arguendo plaintiff established the first element of
a valid CEPA claim, we still affirm. To defeat summary judgment plaintiff must
establish that his "whistle-blowing activity" caused his suspension. Hitesman,
218 N.J. at 29. Defendant filed the preliminary notice of disciplinary action
approximately three weeks after plaintiff made his complaint through his union
representative. "Temporal proximity, standing alone, is insufficient to establish
causation." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App.
Div. 2002) (citing Bowles v. City of Camden, 993 F.Supp. 255, 263-64 (D.N.J.
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1998)). Plaintiff notes that the hearing officer expressly premised discipline, in
part, upon plaintiff's "exaggerated and/or false" claims about B.N.
Assuming arguendo plaintiff established prima facie causation, we then
must consider if defendant came "forward and advance[d] a legitimate,
nondiscriminatory reason for the adverse conduct . . . ." Klein, 377 N.J. Super.
at 38. "If such reasons are proffered, plaintiff must then raise a genuine issue
of material fact that the employer's proffered explanation is pretextual." Id. at
39.
Plaintiff admitted the facts supporting the hearing officer's other basis for
discipline. He acknowledged leaving work without being excused for two days
and that he called the executive director, investigating plaintiff's very complaint,
a derogatory, discriminatory name. The hearing officer specifically found this
conduct alone warranted discipline.
Plaintiff argues that his two co-employees were disciplined only for
making false or exaggerated claims about B.N. He contends that this sufficiently
rebuts defendant's non-pretextual reason for imposing discipline. We disagree.
Initially, plaintiff states the record incorrectly, because defendant cited
R.M. and disciplined him for walking off the job without reason. More
importantly, at the conclusion of the burden-shifting paradigm, "[t]o prove a
CEPA claim, [a] plaintiff must show that the 'retaliatory discrimination was
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more likely than not a determinative factor in the decision.'" Donofry v.
Autotote Sys., Inc., 350 N.J. Super. 276, 293 (App. Div. 2001) (quoting Kolb v.
Burns, 320 N.J. Super. 467, 479 (App. Div. 1999)).
In short, no reasonable fact-finder could conclude by a preponderance of
the evidence on the motion record that plaintiff's suspension "was caused by
[DMUA's] purposeful or intentional [retaliation]" for the complaint about B.N.'s
possession of a gun. Ibid. (second alteration in original) (quoting Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999)).
Affirmed.
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