FILIZ BERMEK VS. THE CITY OF PASSAIC (L-1450-14, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4525-15T3
FILIZ BERMEK,
Plaintiff-Appellant,
v.
THE CITY OF PASSAIC, a body
politic, and RONALD VAN
RENSALIER,
Defendants-Respondents.
__________________________________
Argued March 13, 2018 – Decided July 25, 2018
Before Judges Carroll, Mawla, and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No.
L-1450-14.
Pauline M.K. Young argued the cause for
appellant (McLaughlin & Nardi, LLC, attorneys;
Pauline M.K. Young and Maurice W. McLaughlin,
on the briefs).
Peter P. Perla, Jr. argued the cause for
respondents (Jasinski, PC, attorneys; Peter P.
Perla, of counsel and on the brief; Erin L.
Henderson, on the brief).
PER CURIAM
Plaintiff Filiz Bermek appeals from a May 27, 2016 order
granting summary judgment to defendants on her claims under the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to
-14, and for punitive damages. Plaintiff also appeals three
discovery-related orders. We affirm.
I.
The following facts are taken from the record. Defendant
City of Passaic (the City) hired plaintiff as the City Engineer
on August 31, 2012. She was interviewed for the position by
Ricardo Fernandez, the City's Business Administrator, who also
made the decision to hire plaintiff. Fernandez approved the salary
plaintiff requested during her interview, a raise after two and a
half months of employment, a waiver of plaintiff's monetary
contributions for health care benefits, and her request to revise
her job title so that she would enjoy civil service benefits.
Plaintiff had a short tenure with the City. Fernandez
terminated plaintiff on March 13, 2014, approximately eighteen
months after she was hired. According to the City, plaintiff's
termination was based on a number of poor performance issues,
addressed in greater detail below. Plaintiff alleges, however,
that the grounds on which she was terminated were a pretext to
mask the fact that the City fired her as retaliation for
whistleblower activity protected by CEPA.
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Plaintiff alleges several acts of whistleblowing. The first
arose on June 26, 2013. The prior day, Passaic City Councilman
Gary Schaer requested that a stop sign be erected on a street
corner in the City. It was plaintiff's responsibility to review
and approve such requests. Plaintiff determined that it would be
illegal to erect a stop sign at the location identified by Schaer,
and that a temporary stop sign already in place there was illegal
and had to be removed. The City complied with plaintiff's opinion,
removed the temporary sign, and did not erect a permanent sign.
Plaintiff conveyed her decision on Schaer's request in an
email sent directly to Schaer and other members of the City
Council. This violated the City's established chain of command.
Plaintiff, as the City Engineer, was the head of a City department.
The chain of command requires department heads to report to a
director. In plaintiff's case, she was to report to defendant
Ronald Van Rensalier, the Director of Community Development.
Directors report to Fernandez.
On June 28, 2013, Van Rensalier sent plaintiff a Notice of
Disciplinary Action for Insubordination based on her failure "to
follow the proper chain of command by making a direct communication
to members of the City's governing body via email without the
expressed written consent, authorization or knowledge of [her]
superiors . . . ." The notice stated that plaintiff had previously
3 A-4525-15T3
and repeatedly been directed to follow the proper chain of command.
For example, plaintiff was advised to comply with the chain of
command on a number of occasions when she reported to Fernandez,
rather than to Van Rensalier, whom plaintiff considered to be an
equal, and not her supervisor. In lieu of suspension, plaintiff
agreed to surrender one personal day and two vacation days.
Plaintiff also alleges that she engaged in protected
whistleblowing when she refused to sign architectural drawings
because she is not a licensed architect. Despite this allegation,
at her deposition plaintiff could not identify any projects on
which she was asked to sign architectural drawings. The record
contains no evidence of any such drawings being presented to
plaintiff for her signature.
Plaintiff also alleges that she engaged in whistleblowing
activity when she refused to sign a number of certifications
relating to city litigation. Executing such certifications, which
were required by the City's insurance carrier, was included in
plaintiff's job description. Plaintiff's refusal was based on her
disagreement with the wording of the attestation clause in the
certifications. The clause stated that plaintiff had personal
knowledge of the facts in the certifications, and that she was
subject to punishment if the statements were false. Plaintiff
believed that the certifications did not accurately reflect the
4 A-4525-15T3
state of her knowledge, and she was uncomfortable with the mention
of punishment for false swearing. She expressed her preference
for the language in the form certifications used by the City's
former insurance carrier.
In a meeting secretly recorded by plaintiff in violation of
workplace policy, Christopher Harriott, the City Attorney,
explained to plaintiff that she would be subject to punishment if
she were to lie in any certification, regardless of the language
in the attestation clause. He also assured plaintiff that he
would not ask her to sign a document that was not true. Despite
these assurances, plaintiff refused to sign the certifications.
Harriott informed plaintiff that she would not be compelled to
sign any certification with which she was uncomfortable, and that
another employee would sign the certifications.
Finally, plaintiff alleges that she engaged in whistleblowing
activity when she complained to Fernandez that Van Rensalier
frequently was angry, and yelled at plaintiff. During her
deposition, plaintiff admitted that Van Rensalier's anger was not
related to plaintiff's work, or any protected personal
characteristics, but appeared to be random. She also conceded
that Van Rensalier often yelled at other employees.
Fernandez decided to terminate plaintiff on March 13, 2014.
Van Rensalier delivered the decision to plaintiff, who secretly
5 A-4525-15T3
recorded their conversation, another violation of workplace
policy. Van Rensalier repeatedly told plaintiff that she was
being terminated because her performance as City Engineer was not
satisfactory.
A month later, on April 16, 2014, plaintiff filed a complaint
in the Law Division alleging eight causes of action arising from
her termination. Pertinent to this appeal is plaintiff's claim
that defendants terminated her for whistleblowing activity in
violation of CEPA.1
On April 24 2014, plaintiff served a document request and 160
interrogatories on defendants. Nearly a year later, defendants
provided responses, including 540 pages of documents, and over
1000 emails. Defendants also made documents in their possession
available for review and copying by plaintiff. Her counsel never
reviewed or copied those documents.
On April 29, 2015, plaintiff moved to compel more complete
answers to her discovery requests or, in the alternative, to
suppress defendants' answer without prejudice pursuant to Rule
1
Plaintiff also alleged that defendants violated the Law Against
Discrimination, N.J.S.A. 10:5-1 to -49, by terminating her on the
basis of her gender, age, race, ethnicity, and/or religion. In
addition, she alleged that defendants violated public policy,
subjected her to a hostile work environment, denied her equal
protection, and violated her civil, procedural and substantive due
process rights, and free speech. Plaintiff does not appeal the
entry of summary judgment in favor of defendants on those claims.
6 A-4525-15T3
4:23-5(a)(1) for failure to make discovery. Defendants cross-
moved for a protective order.
On July 20, 2015, after giving the parties an opportunity to
resolve their discovery disputes, the trial court denied
plaintiff's motion, except to the extent that defendants were
ordered to supplement their response to a single interrogatory.
Also on April 29, 2015, plaintiff served deposition notices
for Harriott, Schaer, Fernandez, and Van Rensalier. The
depositions were scheduled for June 2015. However, on June 16,
2015, defendants notified plaintiff that the witnesses were not
available on the agreed upon dates, and requested alternate dates
for August 2015.
On September 1, 2015, defendants filed a notice of motion to
quash the deposition notice of Schaer, and for a protective order.
A certification signed by Schaer supported the motion. He
certified that he had no first-hand knowledge of the facts or
allegations in plaintiff's complaint, nor had he engaged in any
discussions with Fernandez or Van Rensalier about any disciplinary
matters involving plaintiff. Schaer certified that he first heard
that plaintiff had been terminated after the termination had taken
place. Defendants argued that Schaer's deposition would not lead
to the discovery of relevant or admissible evidence.
7 A-4525-15T3
On September 18, 2015, the court granted defendants' motion.
The court ordered, however, that after the depositions of
Fernandez, Harriott, and Van Rensalier, plaintiff could seek to
depose Schaer if the other depositions revealed facts that would
justify taking his deposition. Plaintiff never renewed her request
to depose Schaer.
On October 3, 2015, defendants moved to extend the discovery
deadline and submitted a proposed discovery scheduling order. In
early October 2015, the parties agreed that all outstanding
depositions would be taken on various dates in December 2015. On
November 5, 2015, the trial court granted the motion to extend the
discovery deadline, and entered an order setting a discovery end
date of February 5, 2016, and directing that any motions for
summary judgment be filed by that date.
On November 25, 2015, defendants informed plaintiff that
several of the December 2015 deposition dates of defense witnesses
had to be rescheduled. On December 2 and 15, 2015, plaintiff was
deposed. On December 9, 2015, defendants sent plaintiff an email
proposing four possible deposition dates for Van Rensalier.
Plaintiff did not respond, and did not offer other possible dates
to take the deposition. Defendants also continued to make efforts
to schedule the deposition of Fernandez.
8 A-4525-15T3
On December 10, 2015, plaintiff canceled the deposition of
Harriott. She argued that the deposition could not take place
until the certifications on which plaintiff based her CEPA claims
were produced. Defendants countered that, despite repeated
requests, plaintiff could not identify the certifications on which
her claims were based. The deposition was never rescheduled.
On January 20, 2016, shortly before the discovery deadline,
plaintiff moved to extend the discovery period. Defendants did
not oppose the motion.
On February 10, 2016, the court denied plaintiff's motion,
noting "good cause not demonstrated why after 612 days of discovery
have elapsed so much discovery remains to be done . . . ."2
On February 23, 2016, plaintiff filed a notice of motion for
reconsideration of the February 10, 2016 order. The motion was
accompanied by a certification that provided greater detail
regarding the parties' discovery efforts, but made no new legal
argument.
On March 30, 2016, the trial court denied plaintiff's motion,
finding that she "had ample opportunity during the 612 days of
2
Plaintiff filed a motion for leave to appeal to this court from
the February 10, 2016 order, as well as an application for
permission to file an emergent motion. We denied both.
9 A-4525-15T3
discovery on this Track III case to move to compel defendants to
provide the necessary discovery but inexplicably failed to do so."
On February 5, 2016, defendants moved for summary judgment.
They argued that plaintiff failed to establish that she engaged
in protected whistleblowing activity, or that the reasons
proffered for her termination were pretextual. Defendants argued
that plaintiff was terminated for numerous performance issues.
For example, on June 20, 2013, plaintiff was summoned to Van
Rensalier's office to be reprimanded for holding a meeting without
Fernandez present, even though she had invited Fernandez to attend.
Plaintiff later approved a $99,000 change order on a project for
work that was included in the original specification costs.
Further, plaintiff was investigated by the Civil Service
Commission, Division of Selection Services, for falsely stating
that she lived in Passaic to receive priority for civil service
positions with the City. Plaintiff admitted this falsehood.
Plaintiff was also reprimanded repeatedly for failing to obey the
City's chain of command, and once for taking an unapproved early
departure from work without notifying her supervisor.
On May 27, 2016, the trial court granted defendants' summary
judgment motion. The court concluded that plaintiff had not raised
a material issue of disputed fact regarding whether she engaged
in whistleblowing activities, and offered only self-serving
10 A-4525-15T3
statements and speculation that she was terminated in retaliation
for protected activities.
In support of its conclusion, the trial court noted that
during her deposition plaintiff could not identify any
certification or architectural drawing she was asked to sign.
Although plaintiff argued that her refusal to sign documents
ultimately resulted in her termination, the court concluded that
plaintiff produced no evidence supporting this allegation.
Moreover, the court noted plaintiff's admission that her refusal
to sign documents did not stem from a perceived violation of any
law, rule, regulation, or matter of public policy, but was based
on her discomfort with the language in the certifications, and
because she was not authorized to sign architectural drawings.
Moreover, the court found that plaintiff did not establish
that her report of Van Rensalier's behavior was whistleblowing,
given her concession that he shouted at many employees, and became
angry for reasons unrelated to her personal characteristics. Thus,
the court concluded, plaintiff produced no evidence that she
complained of a perceived violation of a law, rule, regulation,
or public policy. The court found plaintiff effectively complained
that Van Rensalier did not comport with workplace civility,
something not protected by CEPA.
11 A-4525-15T3
Additionally, the court concluded that plaintiff produced no
evidence rebutting defendants' proffered legitimate reasons for
her termination. The court described plaintiff's arguments as "a
bleak attempt to dispute her numerous performance issues,
documented in the brief time she was employed by the City."
Finally, the court held that plaintiff produced no evidence
supporting an award of punitive damages. Given that plaintiff had
not established a CEPA claim, the court concluded that she also
had not established that defendants acted with actual malice, or
with wanton and willful disregard of plaintiff's rights. This
appeal followed.
II.
We address first the three orders relating to discovery: (1)
the September 18, 2015 order quashing the deposition of Schaer;
(2) the February 10, 2016 order denying plaintiff's motion to
extend the discovery end date; and (3) the March 30, 2016 order
denying reconsideration of the February 10, 2016 order.
We "'normally defer to a trial court's disposition of
discovery matters . . . unless the court has abused its discretion
. . . .'" Connolly v. Burger King Corp., 306 N.J. Super. 344, 349
(App. Div. 1997) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524,
559 (1997)). Abuse of discretion occurs when a decision is "made
without a rational explanation, inexplicably departed from
12 A-4525-15T3
established policies, or rested on an impermissible basis." Flagg
v. Essex Cty Prosecutor, 171 N.J. 561, 571 (2002) (quotations
omitted). "Under this standard, 'an appellate court should not
substitute its own judgment for that of the trial court, unless
the trial court's ruling was so wide of the mark that a manifest
denial of justice resulted.'" Hanisko v. Billy Casper Golf Mgmt.,
Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting State v.
Brown, 170 N.J. 138, 147 (2001)).
1. September 18, 2015 Order Quashing Schaer Deposition.
It is a "well-established principle that requests for
discovery are to be liberally construed and accorded the broadest
possible latitude to ensure that the ultimate outcome of litigation
will depend on the merits in light of the available facts."
Piniero v. N.J. Div. of State Police, 404 N.J. Super. 194, 204
(App. Div. 2008). However, Rule 4:10-3 "allows a party from whom
discovery is sought to obtain relief from the court to limit that
discovery in appropriate situations." Serrano v. Underground
Utils. Corp., 407 N.J. Super. 253, 267 (App. Div. 2009). The rule
authorizes trial courts to "make any order that justice requires
to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . ." R. 4:10-3. A
protective order specifically may direct, that "discovery may not
be had." See R. 4:10-3(a). "[T]o overcome the presumption in
13 A-4525-15T3
favor of discoverability, a party must show 'good cause' for
withholding relevant discovery . . . ." Capital Health Sys. v.
Horizon Healthcare Servs., 230 N.J. 73, 80 (2017).
Having carefully reviewed the motion record in light of the
applicable legal standards, we conclude that the trial court did
not abuse its discretion when granting defendants' motion to quash
Schaer's deposition. Schaer, a member of the Passaic governing
body, submitted a certification in which he attested to a lack of
knowledge of any facts relating to plaintiff's claims. Plaintiff
does not allege that Schaer was involved in her termination, or
that he had decision-making authority with respect to her
employment. In fact, pursuant to N.J.S.A. 40:69A-43(c), with the
exception of appeals from the removal of a department head or
director, the City's governing body has no authority over routine
personnel decisions, including hiring, discipline, and
termination. Consistent with this statute, Schaer certified that
he had no involvement in plaintiff's termination, having been
informed of it, along with the other members of the governing
body, after it occurred.3 The record amply supports the trial
3
Passaic operates under the Mayor-Council form of government
authorized by the Faulkner Act. See N.J.S.A. 40:69A-32. The
Mayor is responsible for the administrative and executive function
of the City, and the City Council is the legislative body with
specific enumerated authority. See N.J.S.A. 40:69A-36.
14 A-4525-15T3
court's conclusion that Schaer's deposition was unlikely to lead
to relevant or admissible evidence.
Moreover, the trial court did not entirely preclude plaintiff
from taking Schaer's deposition. The court, instead, ordered that
if the depositions of Harriott, Fernandez, and Van Rensalier
uncovered facts suggesting that Schaer's deposition would be
appropriate, plaintiff could move to take Schaer's deposition.
Having not taken any depositions, plaintiff did not uncover a
factual basis for renewing her request to depose Schaer.
2. February 10, 2016 Order Denying Extension
of Discovery Deadline.
Discovery extensions are governed by Rule 4:24-1, which
allows a party to request an extension by motion returnable before
the conclusion of the applicable discovery period. Where no trial
date has been set, an extension may be granted on good cause shown.
Ibid. "The term 'good cause shown' is flexible and its meaning
is not fixed and definite." Tholander v. Tholander, 34 N.J. Super.
150, 152 (Ch. Div. 1955) (citation omitted).
In deciding whether good cause has been shown
for an extension of discovery in the absence
of a fixed arbitration or trial date, there
are a number of factors which a trial court
should consider. They include, but are not
limited to, the following:
(1) the movant's reasons for the requested
extension of discovery;
15 A-4525-15T3
(2) the movant's diligence in earlier
pursuing discovery;
(3) the type and nature of the case,
including any unique factual issues which may
give rise to discovery problems;
(4) any prejudice which would inure to the
individual movant if an extension is denied;
(5) whether granting the application would be
consistent with the goals and aims of "Best
Practices";
(6) the age of the case and whether an
arbitration date or trial date has been
established;
(7) the type and extent of discovery that
remains to be completed;
(8) any prejudice which may inure to the non-
moving party if an extension is granted; and
(9) what motions have been heard and decided
by the court to date.
[Leitner v. Toms River Reg'l Schs., 392 N.J.
Super. 80, 87-88 (App. Div. 2007).]
Plaintiff's stated reason for seeking the discovery extension
was her inability to depose the witnesses under defendants'
control. However, plaintiff waited a year after filing the
complaint to serve her deposition notices. In addition, she
canceled one deposition, rejected numerous proposed deposition
dates because of the demands of her counsel's other cases, never
filed a motion to compel any depositions, and had already been
granted two discovery extensions. At the time of the trial court's
16 A-4525-15T3
decision, plaintiff already had 612 days to complete discovery on
a Track III case ordinarily given a discovery period of 450 days.
See R. 4:24-1(a). Although plaintiff argues otherwise, the record
shows that the delay in taking depositions was not caused solely
by defendants. Plaintiff was insufficiently diligent in pursuing
discovery. In light of these facts, the trial court's denial of
plaintiff's motion to extend the discovery period for a third time
was not a mistaken exercise of its discretion.
3. March 30, 2016 Order Denying Reconsideration
of the February 10, 2016 Order.
The February 10, 2016 order denying plaintiff's motion to
extend the discovery deadline is interlocutory. As the Supreme
Court explained, "[b]y definition, an order that 'does not finally
determine a cause of action but only decides some intervening
matter pertaining to the cause[,] and which requires further steps
. . . to enable the court to adjudicate the cause on the merits[,]'
is interlocutory." Moon v. Warren Haven Nursing Home, 182 N.J.
507, 512 (2005) (quoting Black’s Law Dictionary 815 (6th ed. 1990));
see also Wein v. Morris, 194 N.J. 364 (2008).
A trial court "has the inherent power, to be exercised in its
sound discretion, to review, revise, reconsider and modify its
interlocutory orders at any time prior to the entry of final
judgment." Johnson v. Cyklop Strapping Corp., 220 N.J. Super.
17 A-4525-15T3
250, 257 (App. Div. 1987). As Judge Pressler explained, "the
strict and exacting standards of R. 4:50” do “not apply to
interlocutory orders entered prior to final disposition." Ibid.Nor do the limitations of R. 4:49-2 apply to requests for relief
from interlocutory orders. Sullivan v. Coverings & Installation,
Inc., 403 N.J. Super. 86, 96-97 (App. Div. 2008). See also Del
Vecchio v. Hemberger, 388 N.J. Super. 179, 188-89 (App. Div. 2006);
Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996); D'Atria
v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990). We review the
denial of a motion for reconsideration of an interlocutory order
for an abuse of discretion. Johnson, 220 N.J. Super. at 263-64.
Plaintiff's motion for reconsideration was essentially a
reiteration of her original motion to extend the discovery
deadline. Although the moving papers set forth the parties'
discovery efforts in greater detail, plaintiff presented no new
legal argument and offered no new facts warranting
reconsideration. The trial court did not abuse its discretion in
denying the motion.
III.
We review the trial court's decision granting summary
judgment de novo, using "the same standard that governs trial
courts in reviewing summary judgment orders." Prudential Prop. &
Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
18 A-4525-15T3
Rule 4:46-2 provides that a court should grant summary judgment
when "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." "Thus, the movant must show that there does not
exist a 'genuine issue' as to a material fact and not simply one
'of an insubstantial nature'; a non-movant will be unsuccessful
'merely by pointing to any fact in dispute.'" Prudential, 307
N.J. Super. at 167.
Self-serving assertions that are unsupported by evidence are
insufficient to create a genuine issue of material fact. Miller
v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 551
(App. Div. 2015). "Competent opposition requires 'competent
evidential material' beyond mere 'speculation' and 'fanciful
arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (citations omitted). We review the
record "based on our consideration of the evidence in the light
most favorable to the parties opposing summary judgment." Brill
v. Guardian Life Ins. Co., 142 N.J. 520, 523-24 (1995).
In pertinent part, CEPA provides:
[a]n employer shall not take any retaliatory
action against an employee because the
employee does any of the following:
19 A-4525-15T3
. . . .
c. Objects to, or refuses to participate in
any activity, policy or practice which the
employee reasonably believes:
(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 of any governmental
entity . . . .; or
(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 . . . .
[N.J.S.A. 34:19-3(c)(1) to (2).]
Prohibited retaliatory action includes suspending or terminating
an employee from his or her employment. N.J.S.A. 34:19-2(e);
Donelson v. DuPont Chambers Works, 412 N.J. Super. 17, 29 (App.
Div. 2010), rev'd on other grounds, 206 N.J. 243 (2011).
To establish a CEPA violation, a plaintiff must demonstrate
that:
(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;
20 A-4525-15T3
(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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380
(2015) (citations omitted).]
A plaintiff who brings a CEPA claim is not required to show
that his or her employer's conduct was actually fraudulent or
illegal. See Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).
Rather, "the plaintiff simply must show that he or she 'reasonably
believes that to be the case.'" Ibid. (quoting Estate of Roach
v. TRW, Inc., 164 N.J. 598, 613 (2000) (internal quotation
omitted)). However, "as a threshold matter" the court "must 'first
find and enunciate the specific terms of a statute or regulation,
or the clear expression of public policy, which would be violated
if the facts as alleged are true.'" Dzwonar, 177 N.J. at 463(quoting Fineman v. N.J. Dep't of Human Servs., 272 N.J. Super.
606, 620 (App. Div. 1994)). A mere disagreement with an employer's
practice, policy, or activity is insufficient to defeat summary
judgment. Young v. Schering Corp., 275 N.J. Super. 221, 236-37
(App. Div. 1995).
21 A-4525-15T3
If a plaintiff establishes the statutory elements, the burden
shifts back to the defendant to "advance a legitimate,
nondiscriminatory reason for the adverse" employment action.
Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28,
38 (App. Div. 2005). "If such reasons are proffered, [the]
plaintiff must then raise a genuine issue of material fact that
the employer's proffered explanation is pretextual." Id. at 39.
After reviewing the motion record, in light of applicable
legal standards, we conclude that the trial court's order granting
summary judgment to defendants was sound.
Plaintiff failed to raise a genuine issue of material fact
with respect to whether she engaged in any protected whistleblowing
activity. She identified no law, rule, regulation, or public
policy she believed was violated by defendants. Although plaintiff
alleged that she was asked to sign drawings and certifications
that she was uncomfortable signing, she did not explain why she
believed that her employer's requests violated any law, rule,
regulation, or public policy.
In addition, the trial court correctly concluded that
plaintiff's complaint that Van Rensalier acted angry and yelled
at her did not amount to whistleblowing under CEPA. Plaintiff
conceded that Van Rensalier's actions were not caused by
plaintiff's gender, race, religion, or other protected
22 A-4525-15T3
characteristic. She acknowledged that Van Rensalier was often
angry for unidentified reasons, and that he shouted at many
employees in addition to plaintiff. In effect, plaintiff
complained about Van Rensalier's unprofessional behavior, not
about a violation of a law, rule, regulation, or public policy.
Moreover, even if plaintiff can be viewed as having engaged
in whistleblowing, defendants produced significant evidence that
plaintiff's termination was based on a history of poor performance,
and insubordination. The record demonstrates that plaintiff
bristled at the City's chain of command. She considered Van
Rensalier, her immediate supervisor, to be an equal, and frequently
reported directly to Fernandez, circumventing proper supervision.
In addition, plaintiff directly emailed the members of the
governing body after Schaer's stop sign inquiry, another violation
of the chain of command. Defendants also produced proof that
plaintiff had a least one unexplained and unapproved early
departure from work, and made a costly error with a work order.
Plaintiff did not raise a genuine dispute of material fact
contesting the validity of defendants' proffered reasons for her
termination.
In light of our decision affirming the order granting summary
judgment to defendants, we conclude that plaintiff's argument with
23 A-4525-15T3
respect to punitive damages is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
24 A-4525-15T3