ROBERT KELLY VS. JAMES SIMPSON (L-0667-14, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0190-16T3
ROBERT KELLY,
Plaintiff-Appellant,
v.
JAMES SIMPSON, EDEL MCQUAID,
DAN BLACK, MICHAEL MORAN, JOHN
ANDREWS, JAMES HODGES, THOMAS
NOEL, GARY MITTNAUL, DAVID
ALVIN, FRANCIS T. SOLTIS, and the
STATE OF NEW JERSEY,
Defendants-Respondents.
_________________________________
Submitted January 25, 2018 – Decided December 4, 2018
Before Judges Simonelli, Haas and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0667-14.
George J. Cotz, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondents (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Joel Clymer, Deputy
Attorney General, on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Plaintiff Robert Kelly appeals from the January 9, 2015, and August 16,
2016 Law Division orders, ultimately dismissing all five counts of his complaint
alleging violations of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-
1 to -2 (counts one, two, and three); violations of the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 (count four); and retaliation in
violation of N.J.S.A. 34:13A-5.3 to -5.4 (count five). The January 9, 2015 order
dismissed counts one, two, and five, pursuant to Rule 4:6-2(e), for failure to
state a claim upon which relief can be granted. 1 The August 16, 2016 order
dismissed the remaining counts by summary judgment, pursuant to Rule 4:46-
2(c). We affirm.
I.
Plaintiff worked as a maintenance worker and technician with the New
Jersey Department of Transportation (DOT) from May 2005 until his
termination in May 2013 for insubordination, conduct unbecoming an employee,
and incompetence. During his eight-year tenure, he served as a shop steward
1
Although count one was inadvertently omitted from the January 9, 2015 order,
plaintiff conceded that count one should have been dismissed as a matter of law.
The January 9, 2015 order also partially dismissed count three.
2 A-0190-16T3
for the Local 195 union, and was disciplined on numerous occasions for
improper behavior, all of which were upheld following administrative appeals,
or agreed to pursuant to the terms of a settlement agreement.
From April 1, 2007, to March 31, 2009, plaintiff was supervised by
Thomas Noel and was suspended five times. Specifically, in October 2007,
plaintiff was involved in a verbal altercation with a co-worker and received a
one-day suspension without pay for "[c]onduct [u]nbecoming a [p]ublic
[e]mployee." In April 2008, plaintiff left the work site without authorization
and received another one-day suspension. Additionally, in April 2008, plaintiff,
who is Caucasian, made racially offensive remarks to an African-American co-
worker, in violation of the New Jersey State Policy Prohibiting Discrimination,
and received another one-day suspension for harassment and discrimination. In
June 2008, plaintiff disobeyed a supervisor's direct order to end a personal phone
call and received another one-day suspension for insubordination. In December
2008, plaintiff again left his assigned work area without authorization and
received a two-day suspension.
From April 1, 2009, to March 31, 2010, plaintiff was supervised by Todd
Zulin and was suspended twice. His threats of bodily harm to a co-worker in
the latter part of 2009 resulted in a three-day suspension for conduct unbecoming
a public employee, and his February 2010 use of profanity toward his supervisor
3 A-0190-16T3
prompted a five-day suspension for insubordination. Plaintiff was next
supervised by James Hodges, Assistant Yard Supervisor, from April 1, 2010
through March 31, 2011, during which time plaintiff was suspended for fifteen
days for insubordination.
On November 5, 2011, plaintiff was provisionally promoted to
Construction and Maintenance Technician in the Underground Electrical
Construction Unit. During his provisional promotion, plaintiff was supervised
by Daniel Black from November 2011 to March 31, 2012, and John R. Miller
from April 1, 2012, to March 31, 2013. In December 2011, plaintiff failed to
properly inspect a contractor's work and received a twenty-five-day suspension
without pay for neglect of duty.
On March 19, 2012, plaintiff was formally charged with insubordination,
incompetency, inefficiency, failure to perform duties, and conduct unbecoming
a public employee. The charges were based on plaintiff's ongoing accrual of toll
violations in his state-issued vehicle in December 2011 and January 2012,
despite repeated warnings from a director, improper behavior towards co-
workers and private contractor employees during the installation of a steel pole
foundation on April 19, 2012, and incorrect direction to a contractor regarding
the location for the construction of a foundation on April 27, 2012. Following
a plenary hearing, Hearing Officer (HO) Francis Soltis upheld the charges and
4 A-0190-16T3
supported removal in an April 26, 2013 report. Plaintiff was terminated from
his position, effective May 3, 2013, in connection with those charges.2
The following year, plaintiff filed a five-count complaint. Named as
defendants in their individual capacity and as officers and employees of State
government were James Simpson, Commissioner of DOT; DOT supervisors Dan
Black, John Andrews, James Hodges, and Thomas Noel; Edel McQuaid, DOT's
Employee Relations Coordinator; Michael Moran, DOT's Manager of
Construction and Maintenance Engineering; David Alvin, DOT's Equal
Employment Opportunity Office Liaison Officer; and Hearing Officers Gary
Mittnaul and Francis Soltis. The State of New Jersey was also named as a
defendant.
Pertinent to this appeal, in counts two and three, respectively, plaintiff
alleged that his termination, as well as the process leading up to it, violated his
substantive due process and freedom of speech rights under the NJCRA.
Plaintiff asserted the disciplinary process that resulted in seven disciplinary
sanctions prior to his ultimate removal was inherently unfair, filled with
improprieties, and did not afford him "true due process." Plaintiff alleged that
2
Following HO Soltis' substantiation of the disciplinary charges, plaintiff
entered into a settlement agreement to resolve some of the charges, and appealed
others to the Office of Administrative Law (OAL). However, plaintiff later
withdrew his OAL appeal.
5 A-0190-16T3
the disciplinary charges were "unjustified, and unsupported by the record," and
pointed to other disciplinary charges that were dismissed as unfounded to
support his allegations. Plaintiff also alleged he was disciplined in retaliation
for acting in his role as shop steward and advocating for union members' rights.
In count four, plaintiff asserted that as a result of his whistleblowing
activities, management and labor conspired to retaliate against him in violation
of CEPA. Plaintiff's alleged whistleblowing activities included both intra- and
inter-agency complaints about favoritism in work assignments; bribery for
promotions; mismanagement; misconduct, incompetence, and racial animus by
DOT employees; unsafe work conditions; theft of DOT supplies and materials;
and intentional damage to DOT equipment. According to plaintiff, in addition
to the disciplinary sanctions and ultimate termination, the retaliation included
transfers to job sites that posed a hardship for plaintiff, denial of promotional
opportunities despite his preferred status as a veteran and high ranking on the
civil service list, and the filing of fabricated disciplinary charges against him.
Regarding his whistleblowing activities, in his deposition testimony,
plaintiff claimed that during the course of his employment, he made ongoing
"whistleblower" reports on various issues of public concern, including theft or
disappearance of materials and intentional damage to equipment, together with
reports of unsafe working conditions and his suspicions that corruption was
6 A-0190-16T3
involved in some promotions. For example, according to plaintiff, on June 19,
2009, he filed an Occupational Safety and Health Administration (OSHA)
complaint regarding unsanitary conditions at his work site, in which he detailed
his complaint to his then supervisor about removing "[b]ird droppings from
under [an] over pass" without any protective equipment. On July 27, 2011, he
also complained to Area Supervisor Andrews about unsanitary conditions in the
break room, restroom, and locker room of one of the buildings. Plaintiff also
reported to Andrews the theft or disappearance of various materials, including
road salt, bug spray, cleaning supplies, and tick repellant, as well as his
suspicion that employees were intentionally damaging equipment by removing
wires to avoid work.
Additionally, plaintiff claimed he reported the unfairness of the overtime
assignment policy as well as his suspicion that supervisor Black was altering the
bid process. Plaintiff also made allegations of racial preference by supervisor
Hodges, who was African-American, and alleged misconduct by fellow
employees, including one co-worker brandishing a large knife, another
defecating in his clothing, and another driving off the road. Plaintiff sent emails
directly to Commissioner Simpson detailing his concerns.
Regarding retaliatory conduct, plaintiff recited a litany of retaliatory acts
he claimed resulted from his whistleblowing activities, including being
7 A-0190-16T3
transferred from his preferred work site and being the target of a widespread
conspiracy to terminate his employment. As to individual defendants, plaintiff
contended that Commissioner Simpson retaliated against him for sending emails
"by just giving it out [to other people] . . . instead of calling [into his office] the
individuals . . . responsible." Plaintiff alleged that Employee Relations
Coordinator McQuaid retaliated against him because "she would[] [not] listen"
or "even talk to [him,]" and improperly destroyed her appointment book
following her retirement.
Further, according to plaintiff, supervisor Black retaliated against him by
telling others that plaintiff had performed a job incorrectly, and manager Moran
retaliated against him, along with supervisors Noel and Andrews, for reporting
the theft of supplies. Plaintiff also asserted that Andrews retaliated against him
by telling Moran about his complaints. Additionally, plaintiff alleged that
liaison officer Alvin, an African-American, retaliated against him by
discriminating against him, and "attempt[ing] to bully and intimidate [p]laintiff
into agreeing to false and fabricated charges." Plaintiff contended further that
HO Mittnaul retaliated against him by finding against him in all five disciplinary
hearings Mittnaul adjudicated. However, plaintiff admitted that HO Soltis did
not retaliate against him, but was rather a "hired gun."
8 A-0190-16T3
Notably, plaintiff alleged that Moran, Andrews, Hodges, and other
individuals conspired to retaliate against him during an audio recorded meeting
in October 2011, during which they discussed ways to avoid working with him.
The meeting was recorded by maintenance worker Justin Postelle, who gave a
copy of the recording to plaintiff. The transcript of the meeting revealed that an
unknown participant suggested that employees lie regarding plaintiff's conduct
in an attempt to have him disciplined, in hopes that he would be terminated.
Plaintiff also cited another meeting in early 2012, during which supervisors,
including Black, discussed his possible termination. A participant in that
meeting, Ian Maza, a foreman with one of DOT's contractors, provided a
certification indicating that these supervisors "pressured" [him] to promise" he
would report "any missteps" by plaintiff.
In 2011, plaintiff relayed a number of his complaints to Jeanne Victor, the
Human Resources Director. Ultimately, DOT's Human Resources directed HO
Edward Sarin to assist with an investigation of plaintiff's disciplinary history
and claims of unfair treatment. The investigation resulted in the issuance of a
report, which concluded that while "some of the circumstances and procedures
employed by members of the [DOT] for disciplinary actions in relation to
[plaintiff were] suspect[,] [t]here were times . . . that the credibility of [plaintiff
came] into question." Further, according to the report, plaintiff "need[ed] to
9 A-0190-16T3
understand his position as an employee within the [DOT], and understand that
there [was] a chain of command," and that he was "not in the position to tell his
co-workers what to do." The report also concluded, however, that the October
2011 recorded meeting where supervisors encouraged "co-workers to lie if
necessary for the purpose of having a co-worker terminated, by any means, [was]
unacceptable."
On September 12, 2014, defendants filed a motion to dismiss the
complaint, or, in the alternative, for partial summary judgment. During oral
argument, the parties agreed to dismiss counts one, two, and three as to the State
and all individual defendants acting in their official capacity. On January 9,
2015, in a written opinion, Judge Anthony M. Massi dismissed counts one, two,
and five with prejudice after "drawing all inferences in favor of the [p]laintiff."
The judge also partially dismissed count three as it related to organized labor.
After the close of discovery, defendants moved for summary judgment, seeking
dismissal of the remaining counts. Following oral argument, on August 16,
2016, in an oral opinion, Judge Douglas H. Hurd dismissed counts three and four
with prejudice after determining that "there were [no] genuine issues of material
fact in dispute" and "giving all [favorable] inferences" to plaintiff . The judge
entered a memorializing order and this appeal followed.
10 A-0190-16T3
II.
On appeal, plaintiff challenges Judge Massi's dismissal of count two,
pursuant to Rule 4:6-2(e), arguing the judge erred in dismissing his claim
because, as a civil service employee, he had a property right in his employment
that was protected by substantive due process under the NJCRA. We disagree.
Our review of a dismissal for failure to state a claim pursuant to Rule 4:6-
2(e) "is plenary and we owe no deference to the trial judge's conclusions." State
v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App. Div. 2015). "The
inquiry is limited to 'examining the legal sufficiency of the facts alleged on the
face of the complaint.'" Ibid. (quoting Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989)). Such motions "require the complaint be
searched in depth and with liberality to determine if there is any 'cause of action
. . . "suggested" by the facts[,]'" ibid. (quoting Printing Mart-Morristown, 116
N.J. at 746), and "to ascertain whether the fundament of a cause of action may
be gleaned even from an obscure statement of claim[.]" Di Cristofaro v. Laurel
Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957). At this
preliminary stage of the litigation, the court is not concerned with the ability of
the plaintiff to prove the allegation in the complaint. Printing Mart-Morristown,
116 N.J. at 746.
11 A-0190-16T3
Plaintiff's substantive due process claim in count two arises under the
NJCRA, N.J.S.A. 10:6-2(c), which provides:
Any person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges or
immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with, by
threats, intimidation or coercion by a person acting
under color of law, may bring a civil action for damages
and for injunctive or other appropriate relief.
The NJCRA was adopted in 2004 "for the broad purpose of assuring a
state law cause of action for violations of state and federal constitutional
rights[,] and to fill any gaps in state statutory anti-discrimination protection."
Ramos v. Flowers, 429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v.
Feigin, 194 N.J. 607, 611 (2008)). The elements of a substantive due process
claim under the NJCRA are the same as under 42 U.S.C. §1983, which, at issue
here, require a claimant to "identify a 'right, privilege or immunity' secured to
the claimant by the Constitution or other federal laws of the United States."
Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (1996) (quoting 42
U.S.C. §1983). "To establish a substantive due process claim, a plaintiff must
prove the particular interest at issue is protected by the substantive due process
12 A-0190-16T3
clause and the government's deprivation of that protected interest shocks the
conscience." Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).
In dismissing count two, Judge Massi relied on Nicholas v. Pa. State
Univ., 227 F.3d 133, 144 (3d Cir. 2000), and Filgueiras v. Newark Pub. Sch.,
426 N.J. Super. 449, 470 (App. Div. 2012), and concluded that, "even when
drawing all inferences in favor of the [p]laintiff, [he] is not entitled to
substantive due process protections stemming from his employment as a matter
of law." The judge reasoned
continued employment is not a fundamental right
created by the Constitution which falls within the ambit
of substantive due process. Therefore, [p]laintiff's
claim must fail, as a matter of law, on the first prong of
a substantive due process claim which requires the
[p]laintiff to prove a protected property interest.
Like Judge Massi, we reject plaintiff's argument that his termination
deprived him, without substantive due process, of a protected property interest
in the form of his continued civil service employment. In Filgueiras, we rejected
a similar contention. There, the plaintiff, a non-tenured public school teacher,
brought claims of federal and state due process violations under the NJCRA
when he was terminated without a public hearing. Filgueiras, 426 N.J. Super.
at 455-54. We held plaintiff had "no property right to continued employment."
Id. at 470. Likewise, the Third Circuit held in Nicholas, that a plaintiff's
13 A-0190-16T3
"tenured public employment [was not] a fundamental property interest entitled
to substantive due process protection." 227 F.3d at 142. Similarly, in Morgan
v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 355 (App. Div.
1993), we clearly stated "an employee hired at will has no protected interest in
his employment and may not prevail on a claim that his or her discharge
constituted a violation of property rights."
Here, we agree with Judge Massi that, as a provisional civil service
employee, plaintiff does not have a property interest in his continued
employment, and thus was not entitled to substantive due process protections.
Indeed, plaintiff acknowledged in his complaint that he was in a "working test
period" at the time of his termination. See N.J.S.A. 11A:4-15(d). Even if we
were to consider plaintiff a permanent career civil service employee, as he
claims in his reply brief, such employees may be terminated for cause. See ibid;
Melani v. Cty. of Passaic, 345 N.J. Super. 579, 586 (App. Div. 2001) (noting
that while "permanent employees can be discharged or demoted only for cause,
and . . . have pre-termination appeal and hearing rights[,] . . . provisional
employees can be terminated at any time at the discretion of the employer").
Accordingly, count two of plaintiff's complaint alleging a substantive due
process violation was properly dismissed.
14 A-0190-16T3
Next, plaintiff argues that Judge Hurd erred in dismissing the remaining
NJCRA and CEPA counts on summary judgment. We disagree.
We review a ruling on a motion for summary judgment de novo, applying
the same standard governing the trial court. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Thus, we
consider, as the motion judge did, "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995). 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) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
(App. Div. 2007)). 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).
This 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
15 A-0190-16T3
matter of law." 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. 2012)). "[C]onclusory and self-serving assertions by one of the
parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J.
428, 440-41 (2005). Applying the above standards, we discern no reason to
reverse Judge Hurd's grant of summary judgment.
As to count three alleging a violation of plaintiff's free speech rights under
the NJCRA, the judge determined that the claim was barred by "sovereign
immunity," as well as "the CEPA waiver provision," given the "substantial
relationship between count [three] and the CEPA claim" contained in count four.
As to the CEPA count, initially, Judge Hurd determined that the "pre-
termination" "suspensions [were] discrete acts" that "[fell] outside the one -year
statute of limitations," and were therefore legally barred. The judge determined
further that "no continuing violation" applied in the case. Turning to the
termination claim and the facts leading up to it, after recounting the elements of
a prima facie CEPA claim, the judge concluded there was "nothing in the case
to show any type of causal connection between the whistleblowing activity" and
the termination, no specifics "as to what specific whistleblowing activity was
16 A-0190-16T3
related to this specific adverse employment action," and "nothing to show . . .
that [plaintiff's] supervisors at the time of the termination were aware of any of
these whistleblowing activities." The judge explained that, as a result, "a jury
would be left to completely speculate as to any type of causal connection."
"The affirmative defense of qualified immunity protects government
officials from personal liability for discretionary actions taken in the course of
their public responsibilities," and "extends to suits brought under . . . the
[NJCRA.]" Brown v. State, 230 N.J. 84, 97-98 (2017) (quoting Morillo v.
Torres, 222 N.J. 104, 107-08 (2015)). Qualified immunity "is an immunity from
suit rather than a mere defense to liability. . . ." Wildoner v. Borough of Ramsey,
162 N.J. 375, 387 (2000) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). Thus, under Brown, all public officials and employees are shielded
from liability for claims arising under the NJCRA, "except those who are 'plainly
incompetent or those who knowingly violate the law.'" 230 N.J. at 98 (quoting
Morillo, 222 N.J. at 118).
Because the doctrine is intended to balance the need to hold public
officials accountable and avoid excessive disruption of government arising from
insubstantial claims, "[u]nless the plaintiff's allegations state a claim of violation
of clearly established law, a defendant pleading qualified immunity is entitled
to dismissal before the commencement of discovery." Mitchell, 472 U.S. at 526.
17 A-0190-16T3
Here, although plaintiff filed suit against these defendants in their individual
capacities, the record is clear that the allegations occurred while defendants were
acting in their official capacities. Because defendants acted on behalf of the
State, and the record does not support a violation of clearly established law,
Judge Hurd correctly determined they were entitled to qualified immunity from
plaintiff's freedom of speech claim in count three.
Additionally, plaintiff's CEPA claim in count four precludes a freedom of
speech claim because "institution of an action in accordance with [CEPA] shall
be deemed a waiver of the rights and remedies available under any other
contract, collective bargaining agreement, State law, rule or regulation under the
common law." N.J.S.A. 34:19-8. "A claim must have a basis independent of
the CEPA claim in order to be exempt from the waiver provision." Falco v.
Cmty. Med. Ctr., 296 N.J. Super. 298, 318 (App. Div. 1996). Plaintiff's
allegations in count three are essentially the same as those in count four. Thus,
Judge Hurd correctly determined that the two claims were related and subject to
the CEPA waiver provision.
Nonetheless, plaintiff argues that dismissal of the freedom of speech claim
was improper because his case was not yet ripe for a CEPA election. He cites
Ballinger v. Del. River Port Auth., 172 N.J. 586, 601-02 (2002), for the
proposition that he should be able to make an election to proceed with the
18 A-0190-16T3
freedom of speech claim despite dismissal of the CEPA claim. In Ballinger, the
Court addressed "whether the statutory waiver is applicable if the CEPA claim
is withdrawn or otherwise concluded prior to judgment on the merits." Id. at
601-02 (quoting Young v. Schering Corp., 141 N.J. 16, 25-26 (1995)). The
Court held that in that circumstance, the waiver did not apply. Id. at 602.
Because the Ballinger holding is limited to circumstances in which the CEPA
claim is unavailable or dismissed for reasons such as the expiration of a statute
of limitations, it is inapplicable here, where the claim was dismissed on the
merits.
We now turn to Judge Hurd's dismissal of the CEPA count. CEPA was
enacted to "protect and encourage employees to report illegal or unethical
workplace activities and to discourage public and private sector employers from
engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138
N.J. 405, 431 (1994). The statute provides, in pertinent part:
An employer shall not take any retaliatory action
against an employee because the employee does any of
the following:
....
c. Objects to, or refuses to participate in any activity,
policy or practice which the employee reasonably
believes:
19 A-0190-16T3
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law,
including any violation involving
deception of, or misrepresentation to, any
shareholder, investor, client, patient,
customer, employee, former employee,
retiree or pensioner of the employer or any
governmental entity. . . ;
(2) is fraudulent or criminal, including any
activity, policy or practice of deception or
misrepresentation which the employee
reasonably believes may defraud any
shareholder, investor, client, patient,
customer, employee, former employee,
retiree or pensioner of the employer or any
governmental entity; 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).]
"Upon a violation of any of the provisions of this act, an aggrieved
employee or former employee may, within one year, institute a civil action in a
court of competent jurisdiction." N.J.S.A. 34:19-5. Notably, "[a]n employee's
CEPA claim accrues on the date of his actual demotion, suspension or
termination from employment." Villalobos v. Fava, 342 N.J. Super. 38, 50
(App. Div. 2001).
20 A-0190-16T3
Plaintiff contends Judge Hurd erred in finding that the one-year statute of
limitations related to when the whistleblowing actually occurred, rather than the
retaliatory act, and failed to consider his previous disciplinary sanctions as a
continuing violation of CEPA. We reject plaintiff's contention.
In Roa v. Roa, 200 N.J. 555 (2010), our Supreme Court made clear that
some discrete acts, "such as termination, failure to
promote, denial of transfer, or refusal to hire are easy
to identify[]" . . . [and] "[e]ach . . . constitutes a separate
actionable 'unlawful employment practice.'"
Accordingly, for limitations purposes, a "discrete
retaliatory or discriminatory act occur[s] on the day that
it 'happen[s].'"
[Id. at 566-67 (third, fourth and fifth alterations in
original) (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002)).]
Thus, Judge Hurd correctly determined that each prior disciplinary sanction,
which arose between 2005 and 2012, was a discrete act, and the statute of
limitations had expired as to those acts. Accordingly, the judge correctly limited
his review to plaintiff's May 3, 2013 termination, finding that only the
termination fell within the one-year statute of limitations period, given the filing
of the complaint on March 21, 2014.
To state a claim under N.J.S.A. 34:19-3(c), and establish the elements of
a prima facie case, a plaintiff must introduce evidence sufficient to show that:
21 A-0190-16T3
(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.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
If the defendant advances a legitimate, non-retaliatory reason for the alleged
retaliatory conduct, to survive summary judgment, the plaintiff must raise a
genuine issue of material fact that the employer's explanation is pretextual.
Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290-93 (App. Div. 2001);
Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38-39 (App. Div.
2005).
Regarding the alleged whistleblowing activity, a CEPA plaintiff is not
obligated to prove that defendants actually violated a law, regulation, or clea r
mandate of public policy. Rather, the plaintiff need only prove that he or she
reasonably believed that to be the case. Dzwonar, 177 N.J. at 462.
[T]he objecting employee must have an objectively
reasonable belief, at the time of objection or refusal to
participate in the employer's offensive activity, that
such activity is either illegal, fraudulent or harmful to
the public health, safety or welfare, and that there is a
substantial likelihood that the questioned activity is
incompatible with a constitutional, statutory or
22 A-0190-16T3
regulatory provision, code of ethics, or other
recognized source of public policy. Specific
knowledge of the precise source of public policy is not
required.
[Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193
(1998).]
However, a causal connection between the whistleblowing activity and
the retaliation is required. This "can be satisfied by inferences that the trier of
fact may reasonably draw based on circumstances surrounding the employment
action," including temporal proximity between the protected conduct and the
adverse employment action. Maimone v. City of Atlantic City, 188 N.J. 221,
237 (2006); Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000); see also
Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 612-13 (D.N.J. 2003)
(explaining that when determining whether plaintiff has produced prima facie
evidence of causation, the focus is generally "timing and evidence of ongoing
antagonism," but all circumstances should be considered). However,
"[t]emporal proximity, standing alone, is insufficient to establish causation."
Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002).
Further, a plaintiff's whistleblowing must reflect conduct that he
reasonably believed posed a "threat of public harm." Maw v. Advanced Clinical
Commc'ns, Inc., 179 N.J. 439, 445 (2004) (quoting Mehlman, 153 N.J. at 188).
In Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 529-31 (2013), a CEPA
23 A-0190-16T3
plaintiff complained about minor violations of the corporate lunch and credit
card policy. The Court made clear that "[v]ague and conclusory complaints,
complaints about trivial or minor matters, or generalized workplace unhappiness
are not the sort of things that the Legislature intended to be protected by CEPA."
Id. at 559. Similarly, "[t]he offensive activity must pose a threat of public harm,
not merely a private harm or harm only to the aggrieved employee." Maw, 179
N.J. at 445 (quoting Mehlman, 153 N.J. at 188). Moreover, "[a]dverse
employment actions do not qualify as retaliation under CEPA 'merely because
they result in a bruised ego or injured pride on the part of the employee. '"
Beasley v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div. 2005) (quoting
Klein, 377 N.J. Super. at 46). "CEPA's purpose is to prevent retaliatory action
against whistle-blowers, it is not to 'assuage egos or settle internal disputes at
the workplace.'" Ibid. (quoting Klein, 377 N.J. Super. at 45).
Here, plaintiff's purported whistleblowing concerned allegations of
cronyism, missing supplies, unsanitary working conditions, and racial animosity
among employees. These allegations do not expressly violate a specific law or
public policy. Instead, they fall under Battaglia's prohibition against vague and
conclusory complaints, and Maw's preclusion of private harms. Further, as
Judge Hurd found, the record does not support a causal connection between the
alleged whistleblowing and plaintiff's termination. Indeed, plaintiff
24 A-0190-16T3
acknowledges that he has no evidence to suggest that his final supervisor was
even aware of the whistleblowing acts, many of which occurred several years
before plaintiff's termination.
Even assuming plaintiff established the elements of a prima facie CEPA
claim, defendant has shown a legitimate, non-retaliatory reason for plaintiff's
termination, namely his numerous accrued disciplinary violations over the
course of his employment. Under Donofry, 350 N.J. Super. at 290-93, plaintiff
is obligated to show that these disciplinary violations were a pretextual basis for
plaintiff's termination in order to survive summary judgment. Plaintiff's mere
conjecture as to a broad conspiracy is insufficient to show the requisite pretext.
Under New Jersey law, a plaintiff cannot claim that his substantiated
disciplinary charges are retaliatory when he was afforded a hearing, during
which he was represented by either a union representative or counsel, as plaintiff
was here. See Beasley, 377 N.J. Super. at 607. "It would require a strong
showing to 'transmute [a] defense to the disciplinary charges into an affirmative
CEPA claim.'" Ibid. (alteration in original) (quoting McLelland v. Moore, 343
N.J. Super. 589, 608 (App. Div. 2001)).
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we deem them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
25 A-0190-16T3
Affirmed.
26 A-0190-16T3