TAMMY A. RUSSELL VS. RUTGERS (L-2607-15, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-4230-16T2
TAMMY A. RUSSELL,
Plaintiff-Appellant,
v.
RUTGERS, THE STATE
UNIVERSITY and JULIE L.
AMON, Associate Chancellor,
Defendants-Respondents,
and
WENDELL E. PRITCHETT,
Chancellor,
Defendant.
Argued September 20, 2018 – Decided November 29, 2018
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-2607-15.
Nancy M. Mahony argued the cause for appellant.
Ellis I. Medoway argued the cause for respondents
(Archer & Greiner, PC, attorneys; Ellis I. Medoway and
Tracy Asper Wolak, on the brief).
PER CURIAM
Plaintiff Tammy A. Russell appeals the April 28, 2017 grant of summary
judgment to defendants Rutgers University and Julie L. Amon. 1 Russell sued
the named defendants, alleging violations of the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. For the reasons that follow,
we affirm.
Amon, the Associate Chancellor, hired Russell in May 2012 to serve as
the Director of the Rutgers Camden Educational Opportunity Fund (EOF)
Program. She supervised Russell's job performance.
The EOF was established to support access to higher education for
economically or educationally disadvantaged students. The New Jersey
Commission on Higher Education has adopted regulations regarding the
administration of the program, through which the State provides funding for
campus programs and student grants. This includes funding not only for
scholarships, but for academic year and summer institute programming.
1
Summary judgment was also granted to the third defendant, Wendell E.
Pritchett, however, that dismissal is not being appealed.
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Among the EOF Director's responsibilities is oversight of the program
budget, which must be submitted each year to the State. Separate budgets for
the academic and the summer terms are required, and the Rutgers EOF office in
New Brunswick submits one report to the State on behalf of both campuses. The
Director is also required to work with state representatives, supervise staff,
oversee the delivery of student services, and plan the summer institute.
Upon assuming her job duties, Russell discovered EOF funds may have
been used to pay salaries for non-EOF Rutgers staff. After she raised the issue,
the problem was remedied. Russell alleges that challenging this practice early
on, changed the way she was perceived in the workplace.
Russell claimed Amon took budgeting responsibilities away from her once
she expressed concern over budgeting practices. She also claimed Amon told
her that she would not have access to the budget, was no longer responsible for
completing state mandated EOF reports, and her responsibilities were otherwise
drastically reduced after she challenged Amon about EOF expenses being out of
compliance with State regulations.
Russell acknowledged, however, that she was still responsible for
reviewing expenditures and approving items in the budget even though she did
not physically complete it. She was required to sign off on the budget before it
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went to New Brunswick. Russell said that State EOF employees complained to
her about the EOF reports being untimely and completed incorrectly.
Russell also said in deposition that she "perceived" that Amon intended to
make the job more difficult if she did not approve the budget. But she admitted
that Amon never forced her to approve it or threatened her about it in any
fashion. She and Amon disagreed on Russell's interpretation of EOF
regulations, and when there was a dispute, Amon would send Russell to other
members of the staff for assistance or perform the task herself. At deposition,
Russell testified she was told by a State EOF employee that Amon blamed her
for EOF report issues.
On November 6, 2012, Russell sent an email to the Rutgers Camden Vice
Chancellor for Finance and Administration, Larry Gaines, raising concerns
regarding the budget and budgeting process, and highlighting problem areas the
State had identified with the EOF reports. In the email, she also indicated she
did not currently have access to some of the information noted in specific budget
items, and that the staff that had assumed her EOF duties had never performed
the work before, and thus had limited ability to correctly complete the reports.
Gaines emailed Amon and the relevant staff asking for an in-person meeting.
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Amon responded that no meeting was necessary, and that she would meet with
Russell personally to discuss the issue.
On November 27, 2013, Russell wrote to Pritchett as follows:
I apologize for contacting you directly but find it very
important that I meet with you at your earliest
convenience to discuss my concerns with [Amon],
including the continued financial misdirection she
provides which is negatively affecting EOF and this
University. Understand the New Brunswick
compliance office and others in New Brunswick are
now involved and prior to me moving forward with an
official grievance procedure I wanted you to be well
aware of all details in order for you to provide insight
and have the opportunity to be informed and part of this
process. . . . Please let me know how you wish for me
to schedule an appointment with you or how you wish
for me to proceed.
Pritchett thanked Russell for the communication, but directed her to others to
address the issues.
As a result of Russell's allegations, Rutgers performed an internal
investigation of Rutgers Camden's EOF program. The report concluded that
although there was no need for further investigation, a full review of the program
should be made in a subsequent fiscal year, noting that EOF was currently on
the internal audit department's annual plan for fiscal year 2016. The main
concerns identified during this internal audit included the allocation of
administrative assistant salary and failure to timely sign off on the budget, which
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had been resolved. Governance and fund sources were identified as requiring a
full review of the EOF program for all of Rutgers, not just the Camden campus,
on its fiscal year 2016 annual audit plan.
Russell's first performance review, made in April 2013, indicated she met
performance standards overall but did not meet expectations when evaluated
with regard to her collaboration skills. Under this category, Amon noted that
Russell had difficulty communicating with other staff, who had complained her
tone was "abrasive, harsh, and combative." Throughout 2013, Amon expressed
concerns to Russell in writing regarding her timeliness, communications
problems, and failure to follow instructions regarding the completion of cer tain
tasks.
From January 2013 to July 2013, Russell's colleagues also expressed
concerns about her performance in writing to Amon. On August 1, 2013, Amon
forwarded a memo to Russell outlining problems with Russell's job
performance, including Russell's "poor communication and program
management." She commented that the issues had resulted in "serious damage
to both your credibility and that of your office."
Nonetheless, in April 2014, Russell's performance was rated again as
meeting standards overall. However, Amon continued to inform Russell, from
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June to July 2014, about problems with her job performance, including the
submission of work containing errors, decision-making beyond Russell's scope
of authority, timeliness, significantly poor event planning, and failure to convey
important information to Amon.
Between April 2014 and July 2014, Amon received additional complaints
from Russell's colleagues along the same line as earlier problems: poor event
planning, untimeliness, and tone. On July 24, 2014, Amon forwarded a pre-
termination letter and scheduled a conference for the following day. The next
day, Amon terminated Russell, referring back to the August 1, 2013 memo.
On July 24, 2014, Russell advised the Associate Vice President of Rutgers
Labor Relations Department that she was "fully prepared to have legal counsel
represent me and am very prepared to go outside of Rutgers University regarding
this case." The email was forwarded to the Director of the Office of
Employment Equity, who assigned it to staff for investigation. Russell was then
suspended with pay, pending the outcome of the investigation. Rutgers Office
of Employment Equity issued an August 18, 2014 report concluding that no
violation of Rutgers employee policies had occurred, as there did not appear to
be a "causal nexus between [Russell's] complaint in November 2013 and the
issuance by [Amon] of the July 24, 2014 letter scheduling a conference with her
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to discuss the termination of her employment, and/or the issuance of the dr aft
letter of termination on July 25, 2014." The final termination letter was similar
to the earlier version, specifying in some detail errors and inaccuracies in budget
submissions and serious problems with the summer institute planning program.
Turning to the genesis of this appeal, the Law Division judge decided the
summary judgment motion from the bench. After disposing of the claim against
Pritchett, who had left the university weeks before Russell's termination, the
judge said it was clear based on his review of the submissions that Russell "was
having issues on the job." Despite the fact she was informed about the problems,
she did not change course. He opined that the legions of complaints against her,
as well as her difficulties in planning the most important events for which she
was responsible as the EOF Director, were what resulted in her termination. He
concluded that the reasons defendants proffered for the termination were "real"
and "existed both before and after the November 2013 purported whistleblowing
email was sent[.]"
On appeal, Russell raises the following points:
POINT I
THE TRIAL COURT'S GRANT OF SUMMARY
JUDGMENT IN FAVOR OF DEFENDANTS
SHOULD BE REVERSED BECAUSE IT DOES NOT
COMPORT WITH R. 4:46-2.
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A. The Trial Court Erred When It Rejected
Plaintiff's Evidence Which Demonstrates That
Plaintiff's Whistleblowing And Defendant Amon's
Retaliation Began Soon After Plaintiff's Hire in May
2012.
1. The Record Is Replete With Evidence Of
Plaintiff's Whistleblowing in 2012.
2. The Trial Court Erred When It Concluded
That Plaintiff's Sole Negative Job Action Was
Her August 2014 Termination.
B. Defendant Amon's Animosity Towards Plaintiff
is Unmistakeable; Moreover, It Creates Factual Issues
That Can Only Be Resolved By A Trial.
We review grants of summary judgment employing the same standard as
the motion judge. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Therefore, we
"review the competent evidential materials submitted by the parties to identify
whether there are genuine issues of material fact and, if not, whether the moving
party is entitled to summary judgment as a matter of law." Ibid.; Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). In order
to prevail under a CEPA claim, a plaintiff 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(c);
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(3) an adverse employment action was taken against
him or her; and
(4) a causal connection exists between the whistle-
blowing activity and the adverse employment action.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015)
(quoting Dzwonar v. McDevitt, 177 N.J. 451, 462
(2003)).]
Where a plaintiff establishes these elements, a defendant "must come forward
and advance a legitimate nondiscriminatory reason for the adverse conduct
against the employee." Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J.
Super. 28, 38 (App. Div. 2005) (citation omitted). A plaintiff must then raise
genuine issues of material fact establishing that the employer's proffered
explanation is pretextual. Id. at 39.
Russell contends that the trial court overlooked or ignored incidents
before the November 2013 email she sent Pritchett, incidents which Russell
claims were protected under CEPA. The record does not support the argument,
however, that even if her complaints were protected by CEPA, any retaliatory
action was taken against her.
Certainly, stripping an employee of job responsibilities has long been
recognized in New Jersey as retaliatory action. See Mancini v. Twp. of Teaneck,
349 N.J. Super. 527, 564 (App. Div. 2002).
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The trial court rejected Russell's allegation that, for retaliatory reasons,
she had been stripped of job responsibilities. We see no error in that finding.
Although Russell testified in deposition that the dispute regarding the use of
EOF funds to pay non-EOF salaries arose shortly after her appointment, the
problem was remedied and the salaries properly removed from the EOF budget.
After that conflict, Russell continued to be actively involved with the budget,
and with state mandated EOF reports. She was required to review expenditures
and approve certain processes, even if she no longer prepared the EOF budget
report. She signed off on it before it was forwarded to New Brunswick for
approval. Russell said she "perceived" that if she did not approve a budget,
Amon would make her job much more difficult, but she was unable to identify
anything that Amon did or said to that effect. The absence of specifics, even
viewing the allegations in a light most favorable to plaintiff, does not support
the claim of retaliatory diminution of the job responsibilities.
In support of her position, Russell relies on Nardello v. Twp. of Voorhees,
377 N.J. Super. 428 (App. Div. 2005). There, however, the employee, a police
officer, identified concrete action by his employer that appeared retaliatory: the
denial of permission to obtain firearms instructor training, coercion to resign as
a leader and a member of a S.W.A.T. team, the denial of the ability to work on
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crime prevention programs, removal from the detective bureau, removal of th e
authority to supervise others, and the assignment to demeaning tasks for
someone of his rank. Id. at 435-36. Those steps constituted a prima facie case,
which a jury could conclude demonstrated a pattern of retaliatory conduct. Id.
at 436. Although there was a shift in responsibility, ultimately Russell still had
final approval and decision-making authority over the EOF budget. At no time
was she explicitly told, or had objective cause to believe, that she was being
punished or retaliated.
Not every action that makes an employee unhappy constitutes an
actionable retaliatory action under CEPA. Id. at 434. That Russell's duties
shifted, although she bore the same responsibility as the ultimate signatory on
the budget submission, may have been the product of the ongoing shortcomings
her employer conveyed to her, including problems with communication, an
inability to work well with colleagues, complete tasks in a timely basis, and
submit materials without error.
Defendants also argue that even if Russell has made a prima facie case,
they have presented a legitimate, non-retaliatory reason for Russell's
termination: her poor work performance. An employer's burden of proof in
demonstrating a legitimate, non-retaliatory reason for the termination "has been
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described as so light as to be 'little more than a mechanical formality; a
defendant, unless silent, will almost always prevail.'" Mogull v. CB Commer.
Real Estate Grp., 162 N.J. 449, 469 (2000) (quoting Developments in the Law -
- Employment Discrimination: Shifting Burdens of Proof in Employment
Discrimination Litigation, 109 Harv. L. Rev. 1579, 1590 (1996)). Amon's
concerns over Russell's performance, particularly her communication skills,
were extensively and consistently documented throughout Russell's time at
Rutgers and were often echoed by Russell's colleagues. Therefore, defendants
have met their burden.
After the employer has met its burden, "the plaintiff has an opportunity to
establish that the proffered reason was pretextual, thereby enabling the
employee to 'prove an employer's [unlawful] intent through circumstantial
evidence.'" DePalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195,
214 (App. Div. 2002) (quoting Bergen Commer. Bank v. Sisler, 157 N.J. 188,
209 (1999)) (alteration in original). "If a plaintiff who has established a prima
facie case can raise enough suspicions that the employer's proffered reasons for
termination were pretextual, the motion for summary judgment should thus be
denied." Greenberg v. Camden Cty. Vocational and Tech. Schs., 310 N.J. Super.
189, 200 (App. Div. 1998).
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An example of circumstantial evidence of pretext includes an indication
in a termination letter that the plaintiff's testimony against the employer in a
lawsuit brought by a former employee caused substantial economic damages to
the employer. See Romano v. Brown & Williamson Tobacco Corp., 284 N.J.
Super. 543, 552 (App. Div. 1995). Another is the retention of employees who
participated in illegal activity but who did not report the employer's violations,
unlike the plaintiff. See Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276,
293 (App. Div. 2001).
Russell's characterization of the reduction of her duties as circumstantial
evidence of a retaliatory intent simply fails. Amon's communications expressing
concern with her performance were more than, as Russell would have it, just a
paper trail justifying her termination. Defendants' proffered reasons for
terminating Russell were supported by the record—such as her performance
reviews and emails from Amon and others. The documentation defendants
produced supporting Russell's termination were not inherently flawed, and
established that the termination was not pretexted. Thus, we are satisfied there
are no genuine issues of material fact, and that defendants are entitled to
judgment as a matter of law. See R. 4:46-2(c); Brill, 142 N.J. at 540.
Affirmed.
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