WAYNE MCCAW VS. VERNON TOWNSHIP BOARD OF EDUCATIONÂ (L-0113-13, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-0875-15T4
WAYNE MCCAW,
Plaintiff-Appellant,
v.
VERNON TOWNSHIP BOARD OF EDUCATION,
VERNON TOWNSHIP SCHOOL DISTRICT,
BARBARA LINKENHEIMER, Individually,
and as Superintendent of Schools
for the Vernon Township School
District, PAULINE ANDERSON,
Individually and as Principal in the
Vernon Township School District,
Defendants-Respondents.
________________________________________
Argued February 14, 2017 – Decided July 25, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Sussex County, Docket
No. L-0113-13.
Christine Carey Lilore argued the cause for
appellant.
Eric L. Harrison argued the cause for
respondents (Methfessel & Werbel, attorneys;
Mr. Harrison and Raina Marie Pitts, on the
brief).
PER CURIAM
Plaintiff, a former custodian employed by defendant Vernon
Township Board of Education (Board), appeals from the trial
court's order granting summary judgment to defendants and
dismissing his complaint alleging violations of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:6A-255
to -50, his civil rights, and the New Jersey Law Against
Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42. Based on our
review of the record under the applicable law, we affirm in
part, vacate in part, and remand for further proceedings.
I.
In our review of the record before the trial court, we view
the facts and all reasonable inferences therefrom in the light
most favorable to plaintiff because he is the party against whom
summary judgment was entered. Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995). Applying that standard, the
record before the trial court established the following facts.
A. Plaintiff's Employment at Walnut Ridge Primary School
Plaintiff commenced his employment as a custodian with the
Board in 2002, and was assigned to the Walnut Ridge Primary
School (Walnut Ridge). For the 2002 through 2005 school years,
plaintiff received favorable annual performance reviews from the
school's former principal, A. Aramando.
2 A-0875-15T4
Defendant Pauline Anderson became the school's principal
for the 2005-2006 school year. She selected plaintiff as the
evening shift custodial foreman for which he received an
additional stipend. Anderson gave plaintiff a favorable annual
performance evaluation, and recommended that he be reappointed
and receive a salary increase. A year later, near the conclusion
of the 2006-2007 school year, Anderson gave plaintiff another
favorable performance evaluation, again recommended his
reappointment and a salary increase, but noted that "[a]ccepting
suggestions and/or criticism from the administration is
difficult for [plaintiff]; this causes problems with keeping the
'lines of communication' open."
In July 2007, plaintiff observed school contractors dry
cutting concrete for a construction project, causing a cloud of
silica dust in the school. Plaintiff asked the head custodian,
Laura Stigler, and Anderson to direct that the contractor stop
the dry cutting. When they failed to do so, plaintiff filed a
complaint with the New Jersey Department of Labor (DOL) alleging
a violation of the Public Employees Occupational Safety and
Health Act (PEOSHA), N.J.S.A. 34:6A-25 to -50. Plaintiff and
fellow custodians Terri McDonald and Dawn Maffetone jointly
filed a grievance under a collective negotiations agreement
between the Board and the custodians' collective negotiations
3 A-0875-15T4
representative, the Vernon Township Education Association
(VTEA). The grievance alleged the silica dust created a
hazardous work environment.
The DOL investigated plaintiff's complaint and in August
2007, imposed a fine on the contractor for violating N.J.A.C.
12:100-13.5(a), by failing to use "protective devices" to
prevent "diffusion of dust, stone, and other small particles."
The DOL did not fine or sanction the Board.
Assistant Superintendent Fred Podorf denied the custodians'
grievance, finding there was no violation of the collective
negotiations agreement because the Board's environmental health
and safety consultant conducted air quality tests and determined
the school was safe. A copy of Podorf's denial of the grievance
was sent to defendant Barbara Linkenheimer who, at that time,
was employed by the Board as the Director of Special Services.
Plaintiff alleges that immediately following the resolution
of the 2007 PEOSHA complaint and related grievance, Anderson's
attitude toward him changed. On August 30, 2007, Anderson sent
plaintiff a memorandum reminding him that "any and all concerns
dealing with Walnut Ridge need[ed] to be brought to [Anderson's]
attention first and foremost." On the same day, Anderson sent a
separate memorandum directing that plaintiff work "in tandem"
4 A-0875-15T4
with a disabled custodian, Rich Duffy, to ensure that classrooms
were thoroughly cleaned on a daily basis.
In a September 13, 2007 memorandum, Anderson documented a
verbal warning issued to plaintiff for failing to work in tandem
with Duffy, and for insubordination because he raised his voice
to Anderson when she advised him of his failure. The memorandum
directed plaintiff "for the third time" to work with Duffy.
In his opposition to defendants' summary judgment motion,
plaintiff denied refusing to work with Duffy and raising his
voice to Anderson. Instead, plaintiff asserted that Anderson
assigned him to work with Duffy in retaliation for his filing of
the PEOSHA complaint and related grievance.1
Seven months later, in March 2008, Anderson gave plaintiff
another favorable performance evaluation, and recommended
plaintiff's reappointment and a salary increase.
In May 2008, during plaintiff's work shift, he attended a
meeting in the school with McDonald, Maffetone, and a
representative from the VTEA. The meeting was scheduled without
Anderson's knowledge or approval. Linkenheimer, who succeeded
1
Plaintiff also relied on Maffetone's deposition testimony
stating that Anderson retaliated against her for her joint
filing of the grievance by assigning her to perform outside
duties knowing she suffered from asthma, and against McDonald
for filing the grievance by changing her work hours.
5 A-0875-15T4
Podorf as Assistant Superintendent during the 2007-2008 school
year,2 met with plaintiff the next day and advised him to not
conduct union meetings during work hours. Linkenheimer's
instructions were memorialized in a May 13, 2008 memorandum,
along with a directive to take breaks at designated times.
In his affidavit in opposition to defendants' summary
judgment motion, plaintiff states the meeting occurred during
one of his permitted breaks. He also states that prior to his
receipt of the memorandum, there was no requirement that
custodians' breaks be taken at scheduled times. Board
Superintendent John Alfieri also testified there was no policy
requiring that custodians take their breaks at scheduled times.
Upon receipt of Linkenheimer's memorandum, plaintiff felt
ill and was taken from the school in an ambulance. He was out of
work from May until October 2008. Plaintiff filed a workers'
compensation claim, which was handled by the Board's insurance
adjuster. The claim was denied.
In December 2008, a building aide reported that plaintiff
used foul language in front of her and students. The allegations
were discussed at a meeting between plaintiff, Anderson,
2
The record does not reflect the date Linkenheimer became the
Assistant Superintendent.
6 A-0875-15T4
Linkenheimer, and a VTEA representative. No action was taken
against plaintiff based on the report.3
In March 2009, Anderson provided her fourth favorable
performance evaluation of plaintiff, "commended [him] for
working to develop more open and effective communication with
the administration," and recommended his reappointment and a
salary increase.
A year later, Anderson completed her fifth and final
favorable performance evaluation of plaintiff. She again
recommended plaintiff for reappointment and a salary increase.
On March 17, 2010, Anderson sent plaintiff a memorandum
stating it had been brought to her attention that two windows
were left open and an exterior door was left unlocked at the
conclusion of plaintiff's work shift the previous night.
Anderson noted that Duffy, who was absent during the shift,
usually did the security detail, but that it was imperative for
plaintiff, as night foreman, to ensure the building was locked
3
Plaintiff asserts in his brief that Anderson tried to
discipline him based on the employee's report. The undisputed
facts show only that the employee made the report and Anderson
and Linkenheimer responded to it. In support of his argument,
plaintiff relies on unsworn allegations contained in a complaint
in a civil action filed by another former Board employee, Cecil
Diaz.
7 A-0875-15T4
and secure. Anderson advised plaintiff that she expected the
situation would not be repeated.
In a March 25, 2010 memorandum to Anderson, plaintiff
denied it was his responsibility to ensure the windows and doors
were secure at the end of his work shift, and faulted a
substitute custodian. Plaintiff noted the "nice" review he
received from Anderson a few weeks earlier, and stated that he
"thought" he and Anderson "were in good standing[]."
Prior to receiving plaintiff's memorandum, Anderson took
plaintiff on a walk-through inspection of the building. She
showed plaintiff areas that required dusting, cleaning, and the
replacement of light bulbs. Following the inspection, plaintiff
reported to the VTEA representative that he felt ill, and left
the school. On the next workday, plaintiff's wife advised the
school that plaintiff was ill and would not report to work.
Anderson prepared a March 26, 2010 memorandum to plaintiff
confirming the inspection results, detailing her observations,
and noting that she expected plaintiff's work performance in
cleaning and maintaining the areas to "improve immediately."
On March 31, 2010, Anderson prepared another memorandum to
plaintiff confirming her receipt of plaintiff's March 25, 2010,
memorandum in which he disputed he was responsible for the open
windows and unlocked door. Anderson also referenced the March
8 A-0875-15T4
26, 2010 inspection results, issued a "written warning" to
plaintiff to improve the quality of his work, and directed that
he secure the building at the end of his shift.
Plaintiff responded to Anderson's memorandum in an April
21, 2010 letter. Plaintiff stated a willingness to address the
issues raised in Anderson's memorandum and did not dispute the
existence of the cleaning deficiencies. Plaintiff explained the
deficiencies were the result of his being assigned tasks outside
of his job description, and that he thereafter would perform
only the custodial duties listed in his job description. He also
asserted that Anderson's approach to him had changed since he
filed the PEOSHA complaint, and that he was aware of his rights
under CEPA.
B. Plaintiff's Employment at Lounsberry Hollow School
Effective March 29, 2010, the Board's newly hired director
of facilities, Matt DeLaRosa, became responsible for the direct
supervision of custodians. Plaintiff was transferred from Walnut
Ridge to the Lounsberry Hollow School (Lounsberry),4 where he
worked during the 2010-2011 school year and until his employment
was terminated in March 2012. While at Lounsberry, plaintiff was
supervised by DeLaRosa, school principal Stewart Stumper, and
4
The precise date of the transfer is not clear from the record.
9 A-0875-15T4
coordinating custodian Thomas Palmisano. DeLaRosa prepared a
favorable performance evaluation of plaintiff in February 2011,
and recommended plaintiff for reappointment and a salary
increase for the 2011-2012 school year.
In a November 2, 2011 memorandum, DeLaRosa advised
plaintiff he would be transferred to the high school and
assigned the overnight shift. Upon his receipt of the
memorandum, plaintiff reported suffering from an anxiety attack,
and left work to seek medical care.
The next day, plaintiff advised he would not be at work due
to a planned doctor's appointment, but did so later than
required under the Board's attendance policy. DeLaRosa issued a
November 9, 2010 memorandum suspending plaintiff for ten
workdays due to plaintiff's failure to report his absence in
accordance with the policy. The VTEA filed a grievance
challenging the suspension. An arbitrator sustained plaintiff's
violation of the attendance policy but reduced the suspension
from ten to two days. A court confirmed the arbitrator's award.
Plaintiff's doctor wrote a letter to DeLaRosa advising that
the planned transfer to the high school and change of hours
would adversely affect plaintiff's health. Another doctor
examined plaintiff at the Board's request and concurred.
10 A-0875-15T4
Plaintiff was not transferred to the high school and continued
working at Lounsberry during the same shift.
In February 2012, DeLaRosa conducted an annual performance
evaluation of plaintiff, and graded plaintiff's performance as
"very good" or "good" in all areas. DeLaRosa recommended
plaintiff's reappointment and a salary increase for the
following school year.
In his affidavit in opposition to defendants' motion for
summary judgment, plaintiff stated that on February 28, 2012, he
wrote a note in the custodians' logbook stating: "why are we
signing the logbook by the people who are training. Please
explain . . . in writing." Plaintiff explained in his affidavit
that he wrote the note to question why DeLaRosa "wanted [him] to
sign off on the training having been done by employees for their
boiler license when [plaintiff] did not give them that
training." Plaintiff stated he made the inquiry after being
directed by a co-worker5 to sign the book, and because he
believed it was illegal to sign the logbook falsely attesting
that other custodians attended training. Palmisano responded
5
The plaintiff identified the co-worker as "George Leone." We
note that the George Leone to whom plaintiff makes reference is
no relation to Judge George Leone, J.A.D., who has participated
in the decision in this matter.
11 A-0875-15T4
that plaintiff did "not have to sign anything in the logbook nor
does anyone else. Just keep doing what you have been doing."
Six days later, Palmisano wrote plaintiff a note in the
logbook stating that plaintiff "did not lock the front main
entrance door last night." Palmisano reminded plaintiff "to
check [the front door] each night." Plaintiff responded in a
note to Palmisano: "Where does it say it is my front door[?]"
Plaintiff further wrote: "I believe it is everybod[y's] to
check! Please show me something in writing. Thank you."
In plaintiff's affidavit in opposition to the summary
judgment motion, he asserted that all of the custodians were
responsible for securing the doors. Plaintiff stated that he
worked in the area of the front doors with another custodian,
Brian DiNapoli, and that DiNapoli was not advised that he failed
to ensure the doors were locked.
In a March 8, 2012 memorandum, Linkenheimer advised
plaintiff that his note to Palmisano was inappropriate and
bordered on insubordination. Linkenheimer provided a copy of the
custodians' job description, which included the duty to secure
the school's doors and windows. Linkenheimer also attached a
color-coded map that she explained depicted the areas and doors
for which plaintiff was responsible. The memorandum also states
that plaintiff is to respond appropriately to requests made by
12 A-0875-15T4
his supervisors, and that his attitude had to improve
immediately or disciplinary action might be taken.
Plaintiff's affidavit explained that prior to the
Linkenheimer memorandum there had never been a color-coded map
delineating the areas and doors for which he was responsible. He
also states the map shows that he and DiNapoli were responsible
for the front doors, but DiNapoli was never advised he failed to
lock the doors or disciplined for the alleged unlocked doors.
Four days later, Palmisano reported the front doors of
Lounsberry had again been left unlocked, and also that the flag
had been left outside. Plaintiff met with Stumper and other
school administrators, and signed a written statement explaining
that he did not know what happened with the doors but
acknowledged leaving the flag outside. In his affidavit in
opposition to defendants' summary judgment motion, plaintiff
stated that he followed a checklist each evening to ensure the
doors were locked and checked the doors from the outside to make
sure they did not open. He also attributed the issues concerning
unlocked doors to mechanical problems with the door locks.
C. Plaintiff's Termination
Following a Board meeting concerning plaintiff's employment
status, Linkenheimer sent plaintiff correspondence dated March
16, 2012, terminating his employment and stating:
13 A-0875-15T4
On March 12, 2012, you once again did not
lock the front doors of [Lounsberry] as you
were directed to do in my memo of March 8.
In addition on March 12, you did not lower
the flag and bring it indoors.
As a result of your repeated failure to
follow administrative directives and your
repeated failures to perform the
requirements of your job, you are being
terminated from your position as a full-time
custodian effective March 16, 2012[,] in
accordance with Step 5 of the disciplinary
action of the VTEA contract.
On March 12 and 16, 2012, plaintiff's counsel sent letters
to the Board requesting that it retain school video recordings
from the evenings of March 5 and 12, when it was alleged
plaintiff failed to lock the school's front doors.
By letter dated April 25, 2012, Linkenheimer sent
plaintiff's counsel video recordings of portions of the evenings
of March 5, 8, 12 and 15. Linkenheimer explained the Board could
not provide the balance of the requested recordings because
recordings were generally retained for only thirty days and
counsel's requests had not been received within that timeframe.
In plaintiff's affidavit opposing defendants' summary judgment
motion, he states that Linkenheimer admitted during her
deposition that she received plaintiff's counsel's requests to
preserve the video recordings before the expiration of the
Board's thirty-day retention period.
14 A-0875-15T4
Plaintiff sought unemployment benefits before the DOL,
which the Board opposed. The DOL determined the Board failed to
establish plaintiff's termination was the result of severe
misconduct and awarded plaintiff benefits. It also determined
plaintiff was disqualified from receiving benefits for a short
period following his termination because he failed to actively
search for new employment as required by N.J.S.A. 43:21-4(c).
D. The Litigation
Plaintiff filed a four-count complaint against defendants.
In the first count, plaintiff alleged that following his 2007
PEOSHA complaint, defendants violated CEPA by subjecting him to
numerous adverse retaliatory employment actions, an ongoing
hostile work environment, and the termination of his employment.
Plaintiff also alleged the termination of his employment
violated CEPA because it was in retaliation for his refusal to
sign the custodians' logbook attesting to training that other
custodians had not received.
In the second count, plaintiff alleged a separate violation
of CEPA, claiming defendants retaliated against him because he
asserted his rights as a whistleblower under CEPA. Plaintiff
claimed defendants retaliated by making false allegations about
his work performance in order to deny him unemployment benefits
to which he was otherwise entitled, and otherwise maliciously
15 A-0875-15T4
interfered with his grievance rights under the VTEA collective
negotiations agreement.
Count three alleged defendants' actions violated
plaintiff's due process and equal protection rights under the
New Jersey Constitution. In count four, plaintiff alleged
defendants violated the NJLAD by purposely engaging in a course
of conduct to aggravate plaintiff's medical conditions and
contesting plaintiff's entitlement to workers' compensation
benefits.
Following the close of discovery, defendants moved for
summary judgment. The court heard oral argument and granted
defendants' motion. The court later issued a written decision
detailing its reasoning.
The trial court found the undisputed facts showed plaintiff
filed the PEOSHA complaint in 2007 while working at Walnut
Ridge. The court also found that during plaintiff's tenure at
Walnut Ridge, he received "only two" disciplinary memoranda and
in the three years following plaintiff's 2007 PEOSHA complaint,
he received "overall satisfactory evaluations" and was
reappointed each year. The court found that in 2010, plaintiff
was transferred from Walnut Ridge to Lounsberry, and ultimately
terminated in 2012 "due to his failure to adhere to an
16 A-0875-15T4
administrative directive and secure the front main entrance
doors at Lounsberry."
The court dismissed plaintiff's CEPA claim, concluding it
was based upon "speculation that there is a substantial nexus
between [plaintiff's PEOSHA] complaint in July 2007 and his
eventual termination approximately five years later." The court
noted plaintiff was terminated while working in a different
school "with a different principal under a completely different
set of supervisors," all of whom were not involved with
plaintiff's July 2007 PEOSHA complaint. The court did not
address any of plaintiff's remaining claims but issued an order
granting defendants' motion and dismissing the complaint. This
appeal followed.
II.
We begin by observing that plaintiff's CEPA claims were
premised on multiple theories, only one of which was addressed
by the trial court. The trial court considered only plaintiff's
count one claim that defendants violated CEPA by terminating his
employment in retaliation for his filing of the 2007 PEOSHA
complaint. We first consider the trial court's decision
dismissing that claim and then address plaintiff's remaining
claims.
17 A-0875-15T4
A. Dismissal Of Plaintiff's Claim He Was Terminated For
Filing The PEOSHA Complaint
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016). "The trial court's conclusions of law and application of
the law to the facts warrant no deference from a reviewing
court." W.J.A. v. D.A., 210 N.J. 229, 238 (2012). Summary
judgment must 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 of
material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law." R. 4:46-2(c).
We must "consider 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, supra, 142 N.J. at 540. We "must
accept as true all evidence which supports the position of the
party defending against the motion and must accord [that party]
the benefit of all legitimate inferences which can be deduced
therefrom." Id. at 535 (quoting Pressler, Current N.J. Court
Rules, comment on R. 4:40-2 (1991)).
18 A-0875-15T4
"CEPA prohibits an employer from taking adverse employment
action against any 'employee' who exposes an employer's
criminal, fraudulent, or corrupt activities." D'Annunzio v.
Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007) (citing
N.J.S.A. 34:19-3). To establish a prima facie case of a CEPA
violation, 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);
(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)).]
Here, it is undisputed plaintiff made a prima facie showing
of the first three elements of his CEPA claim that he was
terminated in retaliation for filing the PEOSHA complaint. It is
undisputed plaintiff reasonably believed the dry cutting at the
school violated the law, and that he performed a whistle-blowing
activity under N.J.S.A. 34:19-3(c) by filing his 2007 PEOSHA
19 A-0875-15T4
complaint. Plaintiff also suffered an adverse employment action,
the termination of his employment.
The court therefore focused on whether defendant made a
prima facie showing of a causal connection between his whistle-
blowing activity in 2007 and his termination in 2012, sufficient
to survive defendants' motion for summary judgment. See Hitesman
v. Bridgeway, Inc., 218 N.J. 8, 29 (2014) (noting a CEPA
"plaintiff [has] the burden to demonstrate a causal connection
between [the] whistle-blowing activity and [the] termination").
Thus, "[a]s in most CEPA cases . . . th[is] appeal turn[s] on
the fourth element: evidence of a causal connection." Donofry v
Autotore Systems, Inc., 350 N.J. Super. 276, 291 (App. Div.
2001). Causation may be proven by direct or circumstantial
evidence that permits an inference of retaliation based on all
of the circumstances. Battaglia v. United Parcel Service, Inc.,
214 N.J. 518, 558-59 (2013); Romano v. Brown & Williamson
Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995). "[T]he
plaintiff must show that the 'retaliatory discrimination was
more likely than not a determinative factor in the decision.'"
Donofry, supra, 350 N.J. Super. at 293.
In determining whether plaintiff has produced prima facie
evidence of causation, courts typically focus on the
"circumstances surrounding the employment action," including
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temporal proximity between the protected conduct and the adverse
employment action. Maimone v. City of Atl. City, 188 N.J. 221,
237 (2006). However, temporal proximity is not dispositive.
Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App.
Div. 2002), app. dismissed, 177 N.J. 217 (2003). "Where the
timing alone is not 'unusually suggestive,' the plaintiff must
set forth other evidence to establish the causal link." Young v.
Hobart West Grp., 385 N.J. Super. 448, 467 (App. Div. 2005).
Here, the trial court determined plaintiff failed to
demonstrate a causal connection between the filing of the 2007
PEOSHA complaint and the termination of his employment five
years later because the termination decision was made by a
"completely different set of supervisors" at Lounsberry than
those who supervised plaintiff at Walnut Ridge. The court also
determined there was no causal connection because plaintiff left
the doors to Lounsberry open on two occasions and was terminated
for that reason.
Based on our review of the record, we are convinced the
court correctly determined plaintiff failed to present
sufficient evidence upon which a jury could reasonably conclude
defendants terminated plaintiff's employment in retaliation for
plaintiff's filing of the 2007 PEOSHA complaint. Hitesman,
21 A-0875-15T4
supra, 218 N.J. at 29. However, our conclusion is based on
reasons different than those of the trial court.
Although the record supports the court's finding plaintiff
worked under different direct supervisors when he made the
PEOSHA complaint in 2007 and at the time of his 2012
termination, there was no evidence showing plaintiff's 2012
supervisors at Lounsberry made the decision to terminate his
employment. Rather, the termination decision was made by the
Board, and was "driven" - according to Superintendent Alfieri -
by the Assistant Superintendent Linkenheimer. Linkenheimer
authored the letter terminating plaintiff's employment, and the
evidence shows Linkenheimer was aware plaintiff made the 2007
PEOSHA complaint.6 Linkenheimer was also aware of all of
Anderson's actions affecting plaintiff following his filing of
the 2007 PEOSHA complaint and through his transfer from Walnut
Ridge to Lounsberry.7 Thus, the fact that plaintiff had different
6
Linkenheimer testified at her deposition that she became aware
plaintiff filed the PEOSHA complaint at some point but could not
remember when. Linkenheimer was copied on Podorf's July 2007
written denial of plaintiff's grievance, which asserted the dry
cutting created a hazardous condition in Walnut Ridge.
7
Linkenheimer was copied on every memorandum sent by Anderson to
plaintiff following plaintiff's filing of the PEOSHA complaint.
The first memorandum was sent on August 30, 2007, and required
that plaintiff bring any and all concerns dealing with Walnut
Ridge to Anderson "first and foremost." Given that the
(continued)
22 A-0875-15T4
direct supervisors in 2012 than he did when he made his 2007
PEOSHA complaint did not, as suggested by the trial court,
require a finding there was no causal connection between the
complaint and his termination.
The motion judge also erred by determining there was no
causal connection because plaintiff left the school doors
unlocked on the two occasions in May 2012. In his affidavit in
opposition to the summary judgment motion, plaintiff disputed he
was solely responsible for locking the doors and asserted that
as a matter of fact the doors were locked. The court therefore
erred by relying on material facts that were disputed.
Nevertheless, we are satisfied that defendants' motion for
summary judgment was properly granted because the record is
devoid of any evidence demonstrating that, to the extent
Linkenheimer was involved in the termination of plaintiff's
employment, the decision was in any way causally connected to
plaintiff's filing of the 2007 PEOSHA complaint. See Cortez v.
Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (explaining
(continued)
memorandum was sent immediately after the resolution of
plaintiff's PEOSHA complaint, it can be reasonably inferred
Anderson directed that plaintiff forego any future reports to
outside agencies in favor of reporting issues directly to
Anderson. In his affidavit in opposition to defendants' summary
judgment, plaintiff stated that he first reported the dry
cutting issue to Anderson but that she did nothing.
23 A-0875-15T4
that although on a motion for summary judgment, a court must
view the evidence in the light most favorable to the non-movant,
"it is evidence that must be relied upon to establish a genuine
issue of fact"), certif. denied, 220 N.J. 269 (2015). There is
no direct evidence Linkenheimer or the Board considered
plaintiff's five-year old PEOSHA complaint in making the
decision to terminate his employment. Nor could any causal link
between the PEOSHA complaint and plaintiff's termination be
reasonably inferred. During the five years following the PEOSHA
complaint, plaintiff received annual salary increases, was
reappointed annually, and suffered from only occasional
criticisms of his job performance and conduct. Based on the
evidence presented, we discern no reasoned basis supporting a
conclusion that plaintiff's termination was causally connected
to his filing of the PEOSHA complaint five years earlier.
Instead, the evidence shows the termination was based on
Palmisano's reports to Linkenheimer that plaintiff failed to
secure Lounsberry's front doors on two occasions. Although
plaintiff disputes he was responsible for securing the doors and
that the doors were left unlocked, the evidence shows Palmisano
reported to Linkenheimer that plaintiff failed to secure the
doors on two occasions, and that the failures were the reason
for plaintiff's termination. There is no evidence Palmisano was
24 A-0875-15T4
aware plaintiff filed the 2007 PEOSHA complaint, and thus, there
is no evidence Palmisano reported plaintiff's failure to secure
the building in retaliation for plaintiff's PEOSHA complaint.
We therefore affirm the court's order granting defendants
summary judgment on plaintiff's count one CEPA claim alleging he
was terminated in retaliation for filing the 2007 PEOSHA
complaint.8
B. Plaintiff's Remaining Claims
We find, however, the court erred by narrowly construing
the complaint to assert only the count one claim that
defendants violated CEPA by terminating plaintiff in retaliation
for the PEOSHA complaint. The complaint also included a count
one claim that defendants violated CEPA by terminating plaintiff
in retaliation for reporting water contamination, engaging in
union activity, and objecting to a request that he falsely
attest to other custodians' training; a count one hostile work
8
Because we conclude plaintiff failed to establish a prima facie
violation of CEPA based on his claim he was terminated in
retaliation for filing the 2007 PEOSHA complaint, we need not
proceed to the McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), burden-shifting
framework. See Victor v. State, 203 N.J. 383, 408 (2010)
(explaining that "[a]lthough most employment discrimination
claims proceed in accordance with the McDonnell Douglas burden-
shifting paradigm," the plaintiff bears the initial burden of
demonstrating a prima facie case).
25 A-0875-15T4
environment claim; and the causes of action in counts two,
three, and four. The court's order granted defendants summary
judgment on the claims, but the court's opinion did not address
or consider them.
We are mindful that we conduct a de novo review of summary
judgment orders, Templo Fuente De Vida Corp., supra, 224 N.J. at
199, and determine the validity of a trial court's order and not
its reasoning, Janiec v. McCorkle, 52 N.J. Super. 1, 21 (App.
Div. 1958). But Rule 4:46-2(c) requires that when deciding a
motion for summary judgment, "[t]he court shall find the facts
and state its conclusions in accordance with R. 1:7-4." "Failure
to make explicit findings and clear statements of reasoning
[impedes meaningful appellate review and] 'constitutes a
disservice to the litigants, the attorneys and the appellate
court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting
Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).
Our de novo standard of review of summary judgment orders
does not render the rationale underlying the requirements of
Rule 1:7-4 a nullity, and does not require that this court
consider and decide motions which were unaddressed by the trial
court. To conclude otherwise would require this court to decide
in the first instance motions that were presented to the trial
court but, for whatever reason, were overlooked.
26 A-0875-15T4
We are therefore constrained to vacate that portion of the
court's order granting defendants summary judgment on
plaintiff's count one claim he was terminated in retaliation for
complaining about water contamination, participating in union
activity, and refusing to falsely attest to other custodians'
training; the count one hostile work environment claim; and the
causes of action in counts two, three, and four of the
complaint. See Rutgers Univ. Student Assembly v. Middlesex Cty.
Bd. of Elections, 438 N.J. Super. 93, 107 (App. Div. 2014)
(finding a court's failure to make findings of fact and
conclusions of law on motion cross-motions for summary judgment
as required by Rule 1:7-4(a) required remand to motion court).
Defendants' motion for summary judgment on those claims was not
considered or decided by the court, and we are convinced it is
inappropriate that we decide the motion on those claims for the
first time on appeal.
We do not express any opinion on the merits of the claims,
defendants' summary judgment motion as to the claims, or
plaintiff's opposition. We remand for consideration of
defendants' motion for summary judgment and plaintiff's
27 A-0875-15T4
opposition as to those claims,9 and the issuance of a decision
with the requisite findings of fact and conclusions of law. R.
4:46-2(c); R. 1:7-4.
Affirmed in part, vacated and remanded in part. We do not
retain jurisdiction.
9
We do not limit the remand court's discretion to request or
permit supplemental briefs or pleadings by the parties in
support of defendants' summary judgment motion and plaintiff's
opposition.
28 A-0875-15T4