KIM ALLEN VS. CAPE MAY COUNTY (L-0131-15, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-4521-16T3
KIM ALLEN,
Plaintiff-Appellant,
v.
CAPE MAY COUNTY
and GERALD THORNTON,
Defendants-Respondents.
___________________________
Submitted October 31, 2018 – Decided July 17, 2019
Before Judges Fuentes, Accurso and Moynihan
(Judge Accurso dissenting).
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0131-15.
Ionno & Higbee, LLC, attorneys for appellant
(Sebastian B. Ionno, on the briefs).
Cooper Levenson, PA, attorneys for respondents
(Russell L. Lichtenstein, of counsel and on the brief;
Jennifer B. Swift, on the brief).
PER CURIAM
Plaintiff Kim Allen appeals from the trial court's order granting summary
judgment to defendants Cape May County and County Freeholder Director
Gerald Thornton and dismissing her complaint filed under the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. CEPA prohibits an
employer from taking "any retaliatory action against an employee because the
employee . . . [d]isclose[d] . . . to a supervisor an activity, policy or practice of
the employer . . . that the employee reasonably believe[d] . . . [was] in violation
of a law, rule or regulation promulgated pursuant to law," N.J.S.A. 34:19-
3(a)(1), "or object[ed] to or refuse[d] to participate in any activity, policy or
practice which the employee reasonably believe[d] [was] in violation of a law,
or a rule or regulation promulgated pursuant to law," N.J.S.A. 34:19-3(c)(1).
Plaintiff alleged Thornton did not reappoint her as the County's purchasing agent
after the expiration of her term in retaliation for her engagement in three CEPA -
protected, whistleblowing activities.
To establish a prima facie claim under CEPA, 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;
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(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)).]
Under the burden-shifting analysis applied to CEPA claims, "once [the]
plaintiff establishes a prima facie case of retaliatory discharge, the defendant
must then come forward and advance a legitimate reason for discharging
plaintiff." Zappasodi v. State, Dept. of Corr., Riverfront State Prison, 335 N.J.
Super. 83, 89 (2000). If a legitimate reason is proffered, the "plaintiff must raise
a genuine issue of material fact regarding whether the employer's proffered
explanation is pretextual or whether, the 'retaliatory discrimination was more
likely than not a determinative factor in the decision.'" Kolb v. Burns, 320 N.J.
Super. 467, 479 (App. Div. 1999) (quoting Bowles v. City of Camden, 993 F.
Supp. 255, 262 (D.N.J. 1998)).
The trial court, after finding that plaintiff established a prima facie case
and that defendants thereafter articulated legitimate, non-retaliatory reasons for
not reappointing plaintiff, concluded plaintiff "failed to present evidence . . .
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other than her subjective belief, that the County's proffered reasoning is
pretextual. Accordingly, summary judgment is appropriate." Notwithstanding
that the court found plaintiff established a prima facie case, which required it to
find a causal connection existed between the whistle-blowing activity and the
County's decision not to reappoint plaintiff, the court confusingly added,
"Plaintiff has not shown a causal connection between [her] engagement in
alleged CEPA-protected activity and the adverse employment action. Therefore,
[d]efendants are entitled to summary judgment dismissing [p]laintiff's claims."
Plaintiff argues the trial court erred because there is "ample circumstantial
evidence" to causally link plaintiff's protected activity and defendants'
retaliatory action, and by crediting defendants' legitimate reasons which were
disputed. We perceive genuine issues of material fact existed as to both the
causal connection and defendants' proffered reasons and reverse. See R. 4:46-
2(c).
Our Supreme Court has recognized, "as remedial legislation, CEPA
should be liberally construed." Lippman, 222 N.J. at 381. Through that lens,
we review de novo the evidence presented to the trial court in a light most
favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-
37 (1995).
A-4521-16T3
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From the record, we glean these facts: plaintiff was provisionally named
the County purchasing agent in 2006. After obtaining a certification as a
qualified purchasing agent, she was appointed as the County purchasing agent
in 2008, a position to which she was reappointed three years later. She was not
reappointed in 2014.
Plaintiff alleges she engaged in three instances of protected conduct prior
to her non-reappointment. After the County sent out a request for proposal
(RFP) for workers' compensation legal services, Jeffrey Lindsay, the director of
the County human resources department that prepared the RFP, saw that one
firm – which he "liked" – submitted a bid that contained an hourly quote instead
of a the preferred "per[-]case quote inclusive of all services up to and including
the first day of trial with an hourly rate for all trial time beyond the initial day,"
as set forth in the RFP. Lindsay approached plaintiff, in the presence of County
Counsel Barbara Bakely-Marino, and asked if "there was any way that [the firm]
could submit a supplemental proposal or that [the County] could negotiate wi th
them to get a per[-]case quote"; plaintiff told Lindsay the firm could not.
Lindsay then asked if the firm could fax a new proposal page to him. Plaintiff
told him that would be illegal.
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In the second instance, plaintiff allegedly discussed Lindsay's actions with
an investigator from a law firm that was conducting an investigation regarding,
in part, an RFP to supply pharmaceutical supplies to a County nursing home
facility after the administrator, Linda Thornton, and an assistant administrator
decided to switch vendors because of negative experience with its current
vendor. The law firm's June 4, 2014 report included accounts by plaintiff,
Lindsay and Bakely-Marino about the exchange between plaintiff and Lindsay
regarding the workers' compensation legal services RFP. 1
The third alleged CEPA-protected incident involved plaintiff's three
objections to the County's engagement of the same law firm that conducted the
pharmaceutical RFP investigation. On April 16, 2014, plaintiff complained that
the County failed to properly utilize the RFP process in accordance with local
public bidding laws when it engaged the law firm. On June 10, 2014, plaintiff
told Assistant County Counsel James Arsenault the agenda title, regarding a
resolution to engage the law firm, that was being presented to the Cape May
County Board of Chosen Freeholders, as well as the related resolution and
1
The copy of the report prepared by the law firm, submitted to us in plaintiff's
appendix, is largely redacted. We do not know if the trial court was presented
with the same redacted version. The redactions make it difficult to know the
scope of the investigation.
A-4521-16T3
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proposed agreement with the firm, were not lawful because they did not contain
"non[-]fair," "non[-]open" and "not[-]to[-]exceed" language. She also told
Arsenault, after he mentioned it was an emergency contract, that the proper
process for such contracts was not followed. And on July 16, 2014, plaintiff
emailed Thornton, Clerk of the Board of Chosen Freeholders Beth Bozzelli,
Director of Operations Michael Laffey and Arsenault, voicing concern that the
law firm was being engaged without its completion, ten days prior to the award
of the contract, of a political contribution disclosure required under pay-to-play
laws. N.J.S.A. 19:44A-20.13 to -22.
The trial court concluded plaintiff established that she reasonably believed
the County's conduct violated laws in connection with her exchange with
Lindsay regarding the worker's compensation legal services RFP, her disclosure
of that exchange to the law-firm investigator, and her objection to the
engagement of that firm, thus satisfying the first two prongs needed to establish
a prima facie CEPA case. Although defendants now argue in their merits brief
that plaintiff did not establish those prongs, they did not cross-appeal; they
cannot now challenge the judge's findings and we will not address their
contentions. See R. 2:4-2 (requiring submission of a notice of appeal to cross-
appeal); see also In re Broderson, 112 N.J. Eq. 532, 533 (1933) ("Unless
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specially permitted by statute or rule, an answer to a petition of appeal cannot
take the place of a cross appeal."). Moreover, we determine those prongs were
met for the same reasons expressed by the trial court. We note only that the trial
court found that it was
undisputed between the parties that modifying a bid
after it has been submitted violates the [Local Public
Contracts Law]. See, e.g., N.J.S.A. []40A:11-23.2
(failing to submit a mandatory component of a bid
"shall be deemed a fatal defect that shall render the bid
proposal unresponsive and that cannot be cured by a
governing body").
Lindsay's alleged conduct involving the alteration of the submitted bid did not
violate that statute because the omitted per[-]case quote is not one of the
mandatory requirements set forth in N.J.S.A. 40A:11-23.2. Late submission of
the preferred quote would, however, violate our longstanding jurisprudence on
the issue. See George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 37
(1994) ("Settled principles of public bidding dictate that no material element of
a bid may be provided after bids are opened."); see also CFG Health Sys., LLC
v. Cty. of Hudson, 413 N.J. Super. 306, 315 (App. Div. 2010) ("These [no-
alteration] principles [of public contract law] apply to the initial award of a
contract.").
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Inasmuch as it is not contested that plaintiff's non-reappointment was an
adverse employment action, we focus on whether the evidence shows a genuine
issue of material fact as to a causal connection between the protected activity
and the non-reappointment. Our analysis compels an assessment of the totality
of the circumstances that preceded defendants' decision not to reappoint plaintiff
and a discrete review of each of plaintiff's protected activities. Regan v. City of
New Brunswick, 305 N.J. Super. 342, 345 (App. Div. 1997).
The trial court accepted defendants' argument that Thornton did not know
about plaintiff's protected activities when he made the decision not to reappoint
her which "was set in motion at the latest on July 14, 2014," when an email was
sent by defendants "indicating that a [Rice] [n]otice would be issued to
[p]laintiff." 2 Even if the Rice notice predated plaintiff's July 16 email about the
failure to require a political contribution disclosure required under pay-to-play
2
In Rice v. Union County Regional High School Board of Education, 155 N.J.
Super. 64, 70 (App. Div. 1977), we recognized that N.J.S.A. 10:4-12(b)(8)
authorized public bodies to discuss personnel matters in executive session
"unless all the individual employees or appointees whose rights could be
adversely affected request in writing that the matter or matters be discussed at a
public meeting[.]" To give effect to the right to have personnel matters
discussed in an open forum, we held that the affected employees must be given
advance notice, id. at 74, now commonly known as a Rice notice.
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laws, other evidence supported plaintiff's contention that Thornton knew of her
protected activity. As the trial court noted:
Although the chronology shows that the July 14, 2014
[Rice] notice email predates [p]laintiff's July 16, 2014
e[]mail – thus showing it was not a factor in
[d]efendant's determination decision – the chronology
also shows that the July [14 Rice] [n]otice could have
factored in the other objections made by [p]laintiff on
April 16, 2014 and June 10, 2014.
Thornton admitted he saw the June 4, 2014 law-firm report which
evidenced both plaintiff's exchange with Lindsay and her report of that exchange
to the law firm's investigators. That report predated the Rice notice email and,
when taken in the light most favorable to plaintiff, provided Thornton with
information about those protected activities. Thornton returned from a medical
leave at the end of April or beginning of May 2014. The timing of Thornton's
review of the report, and what it revealed to him, is a disputed fact. If he
diligently reviewed the report after it was authored, he would have known of the
activities related to the worker's compensation legal services RFP prior to the
issuance of the Rice notice.
The resolution of that timing question will also inform whether the
temporal proximity of that revelation to the decision not to reappoint plaintiff is
a circumstance that supports an inference of causal connection. See Maimone
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v. City of Atl. City, 188 N.J. 221, 237 (2006) (holding the causal connection
element "can be satisfied by inferences that the trier of fact may reasonably draw
based on circumstances surrounding the employment action. The temporal
proximity of employee conduct protected by CEPA and an adverse employment
action is one circumstance that may support an inference of a causal connection"
(citation omitted)). "Only where the facts of the particular case are so 'unusually
suggestive of retaliatory motive' may temporal proximity, on its own, support
an inference of causation. Where the timing alone is not 'unusually suggestive,'
the plaintiff must set forth other evidence to establish the causal link." Young
v. Hobart W. Group, 385 N.J. Super. 448, 467 (App. Div. 2005) (citation
omitted) (first quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997); and then quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-
81 (3d Cir. 2000)).
Lastly, evidence of the familial and work-related connections between
Thornton and Lindsay cannot be ignored. Lindsay was Thornton's stepson.
Lindsay's mother, the administrator of the County facility involved in the
pharmaceutical RFP investigation, was married to Thornton. In this case,
besides the related emails, defendants' evidential support for their contentions
that there was no causal connection consisted only of Thornton's testimony that
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he: was "going back and forth for probably a five or six month period" before
deciding to send plaintiff a Rice notice; was unaware of plaintiff's involvement
with the worker's compensation legal services RFP; had no memory of reading
that portion of the June 4 report regarding plaintiff's exchange with Lindsay; and
became aware of plaintiff's objection only after receiving plaintiff's July 16
email. The trial court erred in crediting Thornton's testimony that he did not
know about plaintiff's objections to the engagement of the law firm, and that he
was informed of the objection only through plaintiff's July 14 email, and failing
to consider evidence in a favorable light to plaintiff, especially where credibility
is a key issue. Disputed facts should be decided by a jury; they should not form
the basis for the grant of summary judgment. Brill, 142 N.J. at 540. The trier
of fact should decide if Thornton's claims are believable; his relationship with
his stepson and wife may impact that determination.
Direct evidence is not required to support a finding of causal connection.
"[A] finding of the required causal connection may be based solely on
circumstantial evidence that the person ultimately responsible for an adverse
employment action was aware of an employee's whistle-blowing activity."
Maimone, 188 N.J. at 238-39. Viewing, as we should, the totality of the
circumstances that preceded the adverse employment action, we determine the
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evidence and all legitimate inferences that can be drawn therefrom favoring
plaintiff, present genuine issues of fact and credibility determinations that
should be decided by a trier of fact. R. 4:46-2; Brill, 142 N.J. at 540; see
D'Amato v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997) ("A case may
present credibility issues requiring resolution by a trier of fact even though a
party's allegations are uncontradicted.").
Likewise, in a CEPA pretext case, a plaintiff may defend a summary
judgment motion by presenting "some evidence, direct or circumstantial, from
which a reasonable factfinder could conclude that defendants' proffered reasons
[for its adverse employment action] were 'either a post hoc fabrication or
otherwise did not actually motivate the employment action (that is, the proffered
reason is a pretext).'" Kolb, 320 N.J. Super. at 480 (quoting Romano v. Brown
& Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995)).
We recognized, in the context of Title VII 3 and New Jersey Law Against
Discrimination (LAD)4 cases, once a defendant proffers legitimate, non-
discriminatory reasons for its adverse employment action,
plaintiff need not provide direct evidence that her
employer acted for discriminatory reasons in order to
3
42 U.S.C. §§ 2000e to -17.
4
N.J.S.A. 10:5-1 to -49.
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survive summary judgment. "She need only point to
sufficient evidence to support an inference that the
employer did not act for its proffered non-
discriminatory reasons." Kelly v. Bally's Grand, Inc.,
285 N.J. Super. 422, 432 (App. Div. 1995). In other
words, the plaintiff, as the nonmoving party, "must
demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them
'unworthy of credence,' and hence infer 'that the
employer did not act for [the asserted] non-
discriminatory reasons.'" Fuentes v. Perskie, 32 F.3d
759, 765 (3rd Cir. 1994).
[Kolb, 320 N.J. Super. at 478 (alteration in original).]
see also Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290 (App. Div.
2001) (recognizing "[i]t is beyond dispute that the framework for proving a
CEPA claim follows that of a LAD claim. It is also plain that the methods of
proof and the applicable burdens in LAD and CEPA cases generally follow Title
VII law, and we therefore frequently look to federal as well as state
discrimination and retaliation cases as precedent" (citation omitted)).
Consistent with the burden-shifting process applied in Title VII and LAD cases,
we held, once a defendant proffers legitimate, non-retaliatory reasons for an
adverse employment action, "plaintiff must raise a genuine issue of material fact
regarding whether the employer's proffered explanation is pretextual or whether,
the 'retaliatory discrimination was more likely than not a determinative factor in
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the decision.'" Kolb, 320 N.J. Super. at 479 (quoting Bowles, 993 F. Supp. at
262).
That is exactly what plaintiff did in opposition to the summary judgment
motion. Contrary to the trial court's conclusion, plaintiff provided more than
her "subjective belief[] that the County's proffered reasoning is pretextual." See
Young, 385 N.J. Super. at 467 (holding plaintiff must provide more than "her
own unsubstantiated conclusory allegations" to survive summary judgment).
Defendants' proffered reason for plaintiff's non-reappointment included
Thornton's statement that he went "back and forth" for five to six months before
deciding to send plaintiff a Rice letter. He also contended plaintiff was a
"mediocre employee" and was mistaken in her interpretation of public contracts
law; and several department heads had complained about her performance.
These proffered reasons were belied by other evidence. Despite
Thornton's contention that he started mulling plaintiff's non-reappointment
months before, he admitted he authorized a $1500 expenditure to send plaintiff
to a national conference in May 2014 – only two months prior to the date on
which the email was sent by defendants "indicating that a [Rice] [n]otice would
be issued to [p]laintiff." He also admitted that, although he had the ability to do
so, he never disciplined plaintiff or documented any problems or concerns
A-4521-16T3
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regarding her performance. Plaintiff denied that any performance issues were
brought to her attention during the eight years she was employed. Thornton also
deposed that he never documented or memorialized any of the complaints made
by other County employees; nor did he specify what the complaints were about
except to indicate Bozzelli "said she had difficulties with purchasing as far as
writing specs and the RFP proposals." Bakely-Marino testified that for the eight
years she served as director of human resources, ending in October 2013, the
quality of plaintiff's performance was "excellent." Despite having a
disagreement with plaintiff about the handling of the pharmaceutical RFP for
the County nursing home, Bakely-Marino testified plaintiff had a better grasp of
public contracts law than did she. Arsenault found plaintiff knowledgeable
about pay-to-play compliances and, in fact, agreed with her opinion that the law
firm was required to submit a contribution disclosure form; he said, "there was
nothing incorrect in what she had analyzed for the director." He also testified
plaintiff "knew her job. She knew the substance of the statutes that she was
interpreting."
We observe that the evidence of defendants' non-retaliatory reasons for
not reappointing plaintiff is, like the evidence relating to causal connection,
largely testimonial. As such, the witness's motive, bias or prejudice should be
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considered in determining if those reasons were credibly advanced. The trier of
fact should determine whether Thornton's decision not to recommend plaintiff
for reappointment was influenced by: plaintiff's stance on the exchange she had
with his stepson; plaintiff's position with regard to the action his wife wanted to
take in connection with the pharmaceutical RFP; Bozzelli's complaint – the only
specific one made – about plaintiff, considering that Bozzelli was part of his
"great staff" and "handled all of [Thornton's] phone calls and all of [his] work"
while he was on medical leave to the extent that he "was not bothered at all."
Another factor that must be considered is whether the County employees'
complaints about plaintiff were legitimate commentary on her work
performance or carping about plaintiff's compliance with public contracting law.
This issue was explored during Bakely-Marino's deposition:
Q. Was [plaintiff] someone who gave off the
appearance that she took the rules of compliance
seriously?
A. Yes, there was no doubt. Yes. She would follow the
absolute letter of the law, even if it killed everybody
else, but yes.
Q. Were there times where that bothered or annoyed
other people that you became aware of?
A. Yes.
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After recounting that plaintiff required the County to stop awarding contracts
without competitive bidding, the colloquy continued:
Q. Did you ever hear or learn of any hostility which
was directed towards [plaintiff] because of her
insistence on compliance with the statutory
obligations?
A. Hostility or what was the other word you used?
Q. I don't know that I did.
A. I'm sorry.
Q. Is there some other word which you would be more
comfortable with –
A. Yes.
Q. – to describe a relationship or response?
A. Yes, griping, whining, griping, yes.
The trial court, in granting summary judgment, did not consider this evidence.
In that Thornton gave no details about the complaints lodged by other employees
– except Bozzelli's which, in a light most favorable to plaintiff, could be
characterized as griping and whining – the nature of plaintiff's job called into
question the legitimacy of the complaints as a reason for plaintiff's non -
reappointment.
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We look askance at the trial court's reliance on evidence that the County
"largely abided by [p]laintiff's objections" as support for its conclusion that
plaintiff failed to establish that defendants' proffered reasons were pretextual.
The fact that the County, once told of a violation, followed the law does not
negate that they engaged in retaliatory conduct. Even if they obeyed the law –
action that could be attributed to plaintiff's CEPA-protected activity – its intent
could still be found to be retaliatory. Often those who act as the conscience of
the community are disfavored: there was a reason Pinocchio bludgeoned Jiminy
Cricket with a hammer.5
So too, the end of plaintiff's finite term as purchasing agent – a factor also
relied upon by the trial court – does not leave her unprotected from retaliatory
action. Employees are entitled to CEPA protection throughout their tenure. The
question of timing should be left to the trier of fact.
Viewing the evidence in the light most favorable to plaintiff, we determine
a material factual dispute exists as to whether there was a causal connection
between defendants' decision not to reappoint plaintiff and her CEPA-related
5
Carlo Collodi, The Adventures of Pinocchio, 24 (Carol Della Chiesa trans.,
The Floating Press 2009) (1883).
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activities, and whether defendants' adverse employment action was motivated,
even in part, by her CEPA-protected activities.
Reversed and remanded for further proceedings.
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____________________________
ACCURSO, J.A.D., dissenting.
The majority reverses summary judgment to Cape May County and its
Freeholder Director Gerald Thornton on Kim Allen's claim that she was not
reappointed to a third three-year term as the Qualified County Purchasing Agent
in retaliation for conduct protected under the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. It concludes the Law Division
judge erred by resolving disputed issues of material fact in defendants' favor. I
disagree. Because I harbor doubts as to whether plaintiff established a prima
facie case under CEPA and conclude her claim of pretext relies on speculation
and not any evidence she adduced on the motion, I respectfully dissent.
Facts
Defendants made their summary judgment motion after the end of
extended discovery, and thus had the benefit of the deposition testimony of all
the witnesses likely to be called at trial. Defendants' Rule 4:46-2 statement of
undisputed material facts consisted of 122 separately numbered paragraphs,
complete with citations to the deposition transcripts, almost all of which plaintiff
agreed were not in dispute. The deposition transcripts were also submitted on
the motion in their entirety. Because "[a]s is frequently true in employment
discrimination claims, our evaluation of the issues can only be understood in
the context of the specific facts in dispute," Tartaglia v. UBS PaineWebber, Inc.,
197 N.J. 81, 90 (2008), I discuss them in detail. Here are the extensive facts
adduced on the motion viewed most favorably to plaintiff. All are un disputed
unless otherwise noted.
Background
Plaintiff is a political appointee. She was first appointed to a three-year
term as the County's Qualified Purchasing Agent in 2008, succeeding Gene
Sicilia, who retired after many years in the position. She was reappointed in
August 2011. Thus if plaintiff were to be appointed to a third term, she would
need to have been reappointed in August 2014.
In 2012, during plaintiff's second term, defendant Thornton became
Freeholder Director, succeeding the director who hired plaintiff in 2006 as his
confidential assistant and later appointed her to the purchasing position when
she obtained her qualified purchasing agent certificate. See N.J.S.A. 40A:11-9.
Jeff Lindsay, Thornton's stepson and an attorney, joined the County in October
2013 as Director of Human Resources.
The Workers' Comp RFP
Within months of coming aboard, Lindsay was tasked with reviewing the
bids of law firms submitted in response to a request for proposals (RFPs) for
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new counsel to represent the County in workers' compensation matters as a
member of a three-person evaluation committee. Although an attorney, Lindsay
did not have any experience in the area of public contract law. Plaintiff was
familiar with the RFP for the workers' comp contract, having been involved in
its preparation.
The RFP permitted bidders to submit either an hourly rate at which they
would perform the work or a per case quote. Although the bid solicitation
permitted either, the County indicated a preference for a per case quote. One of
the firms Lindsay liked after reviewing the bids had only bid the contract with
an hourly rate. Lindsay telephoned plaintiff and sent her an email, indicating he
had a question about the workers' comp RFP. 1 Before plaintiff could return his
call, the two saw one another that afternoon, February 25, 2014, at a Freeholders'
1
This was not the only question Lindsay put to plaintiff about the RFP. On an
unspecified date after the bids were opened, Lindsay sent plaintiff an email one
morning at 2:48 a.m., stating:
Can't sleep, so I'm reviewing the submissions from
workers' comp counsel. Barb [Marino] mentioned
interviewing the attorneys, which I think is a great idea.
Is there a restriction on me interviewing the attorneys
who submitted a proposal? When do we need to decide
what attorneys we are selecting? Thanks.
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3
meeting. Plaintiff claims Lindsay asked whether he could "switch out a page by
having [the firm] fax to me a proposal page." 2 She responded that to do so would
be illegal. She did not recall at her deposition if Lindsay asked whether it was
a problem if a firm bid the contract with only an hourly rate, but remembered
telling him she would review the RFP to see what advice she could give him.
Plaintiff testified at her deposition that County Counsel Barbara Bakely Marino
overheard the conversation between herself and Lindsay, remarking "our new
attorney does not know Local Public Contracts Law."
Later that afternoon, plaintiff emailed Lindsay with the following
message:
OK, I highlighted the two areas…….I recognize our
proposal page has the case load 3 but in the evaluation
criteria, page 10, we didn't make it a MUST. We prefer
case load as we stated, but what do we know? ;) 4
2
Lindsay claims he asked whether there was any way the firm could submit a
supplemental proposal or if the County could negotiate with the firm to get a per
case quote. Because I view "the competent evidential materials presented . . .
in the light most favorable to the non-moving party," see Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995), I accept plaintiff's version of the
conversation.
3
Plaintiff testified at deposition she used case load here to refer to a per case
fee.
4
Plaintiff testified at deposition the semicolon and closed parenthesis was
"supposed to be a smiley face."
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4
I say we reviewed the RFP and selected a firm that
offers an hourly rate and justify strongly. Also, of
importance, is knowing if they are assuming they are
picking up existing case loads.
Comments?
A few weeks later, plaintiff sent her evaluation report of the responses
received to the RFP to Beth Bozzelli, Clerk of the Board of Freeholders,
recommending the firm she and Lindsay had discussed based on its
"qualifications, experience, references and cost." Specifically, plaintiff wrote
the firm's bid
contained all the requested and required documents.
Their proposal was thorough and they have over 40
years' workers' compensation defense services. Cost at
$140/Hr. and their main office is in Mount Laurel, NJ.
References contacted; outstanding, very responsive, the
best workers' comp attorneys in NJ; fine reputation with
aggressive claims handling.
Plaintiff concluded the firm's proposal "demonstrates a clear understand[ing] of
meeting the needs of workers' compensation counsel services for the County of
Cape May" and recommended it be awarded the contract.
Plaintiff admits Lindsay did not instruct her to swap out a page in a bid
after opening, asking only whether he could do so. She further admits she is not
aware of what Lindsay did with the information she provided him. When asked
by her counsel at deposition whether she understood Lindsay's inquiry "to be a
A-4521-16T3
5
generalized question about whether a page could be switched out or a course of
conduct that he wanted to engage in," plaintiff responded: "A course of
conduct." She admits Lindsay raised the issue with her only once, and she is
not aware of any similar conduct on his part at any other time.
Nevertheless, the incident concerned her and she discussed it with Gene
Sicilia, the former purchasing agent. Plaintiff initially claimed Lindsay
approached Sicilia,5 who had returned to the County as a purchasing assistant
after his retirement on a part-time seasonal basis, and asked him whether the
page could be switched out. She claimed after that conversation Sicilia told her
to "[w]atch that guy. . . . [b]ecause what he was asking was illegal."
Sicilia, for his part, testified at deposition he only spoke to Lindsay at
plaintiff's behest. Sicilia claimed plaintiff "told [him] that there was a problem
with a bid, and that [Lindsay] wanted to switch a paper or something." Sicilia
responded, saying: "You can't do that." He recalled plaintiff was upset, and he
asked if she wanted him to talk with Lindsay. Plaintiff asked if he would, so he
did. Sicilia claimed he told Lindsay he could not switch out a page after the bids
were received, and Lindsay asked whether the County had any other options.
5
In her appellate brief, plaintiff concedes "Sicilia went to Lindsay's office to
speak to him" about Lindsay's conversation with plaintiff regarding the workers'
comp bid.
A-4521-16T3
6
Sicilia told him the options were that the County "award it on the merits of the
bids that came in" or, if the bid specifications failed to accurately describe what
the County needed, that Purchasing could ask the Freeholders to reject all bids
and rebid it.
Sicilia testified Lindsay "was fine with that." Sicilia went on to explain
that in his view, Lindsay was "simply exploring what could we or what could
we not do[.] He's not the purchasing agent, he has never had a purchasing class.
He doesn't know the law." He testified he reported back to plaintiff "that I talked
with Mr. Lindsay, I explained to him what we were allowed to do and not do,
legally. And he was okay with it. And that was it. I moved on to another
project." Sicilia denied telling plaintiff to "watch out" for Lindsay, saying he
"didn't know him well enough to say anything like that."
Plaintiff admits Lindsay testified he thought the issue was over after he
talked to plaintiff at the Freeholder meeting. Lindsay confirmed Sicilia came to
his office afterwards, reiterating the advice he got from plaintiff. Plaintiff
admits Lindsay testified he did not speak to anyone else about it. She further
admits she never raised the issue with Thornton. When asked at her deposition
whether she was aware of any facts or evidence to support her claim that telling
Lindsay it would be illegal to allow a bidder to switch out a page after bid
A-4521-16T3
7
opening "played a role in the decision not to reappoint [her]," plaintiff
responded, "Only that. Only that one instance of the swapping out the page."
The Pharmacy Contract
Shortly after her encounter with Lindsay over the workers' comp RFP,
plaintiff got involved in a disagreement over the law governing the award of a
pharmacy contract for the County nursing home with County Counsel Marino,
herself the daughter of a former Cape May County Freeholder. 6 Linda Thornton,
administrator of the nursing home, is married to defendant Freeholder Director
Gerald Thornton; Human Resources Director Jeff Lindsay is her son.
After reviewing the proposals from bidders, the nursing home's bid
evaluation committee (of which Linda Thornton was not a member) determined
to award the contract to a new pharmacy, in part based on the nursing home's
negative experience with its existing pharmacy provider, which also bid the
contract. When plaintiff reviewed the evaluation reports in preparation for
awarding the contract, she noticed the committee had taken the nursing home's
prior experience into account in downgrading the incumbent's proposal.
Plaintiff advised the evaluators they could not consider past performance in
6
Marino was appointed as assistant county counsel and later county counsel
while her father was a Freeholder. Numerous witnesses, including plaintiff,
testified the County does not have any type of anti-nepotism policy.
A-4521-16T3
8
determining not to award the contract to an incumbent. Accordingly, the
evaluators revised their scoring and recommended an award to the incumbent
provider with which they were dissatisfied.
On the day the contract award was scheduled to be voted on by the
Freeholders, Linda Thornton telephoned County Counsel Marino expressing
concern over the award because the nursing home had not been permitted to
consider its experience with its incumbent pharmacy provider in awarding the
new contract. Shortly before the meeting started, Marino spoke with Freeholder
Kristine Gabor, whose portfolio included the nursing home, and Director
Thornton and recommended tabling the contract award until Marino could find
out why the nursing home had been advised it could not consider prior
experience with a bidder in evaluating that bidder's proposal.
The incumbent provider, however, had already been advised by a member
of plaintiff's staff that the Freeholders would vote on the recommendation to
award it the contract at that meeting. Plaintiff and the incumbent bidder's
representative arrived at the meeting at the same time, taking seats near one
another as it began. Plaintiff's appearance with the incumbent provider she
recommended be awarded the contract, instead of the bidder the nursing home
preferred, raised additional concern with the Freeholders about the contract
A-4521-16T3
9
award. When plaintiff rose to present the contract award, the Freeholders tabled
it without prior notice to her.
Marino subsequently determined the advice plaintiff had provided the
evaluation committee about not being able to consider their experience with the
current pharmacy provider in evaluating its proposal was wrong. Plaintiff
disagreed with Marino and the two had a loud discussion about it in the office.
Based on Marino's advice, the nursing home revised its evaluation of the
pharmacy proposals in accordance with its initial review, and the contract was
ultimately awarded to the new vendor the evaluators had first recommended.
Plaintiff, however, despite the legal opinion provided by county counsel,
continued to insist her advice to the County nursing home had not been
inaccurate. In a March 25 email to Marino, which she copied to Freeholder
Director Thornton, Freeholder Gabor, Clerk of the Board Bozzelli and Mike
Laffey, Director of Operations, plaintiff continued to voice her disagreement
stating: "For the record, . . . I respectfully beg to differ, you cannot use past
experiences, unless there is documentation to demonstrate prior negative
experiences." Bozzelli responded by asking why prior experience could not be
used in this instance when the County had done so for years in other RFPs,
prompting plaintiff to offer to copy and circulate the statute on which she based
A-4521-16T3
10
her opinion. That brought an angry response from Freeholder Director Thornton
later that day: "That is not an answer!!!! County Counsel interprets the law and
statute. Barb M[arino] has confirmed that past experience can be considered.
What a waste of time!! You're wrong, I'm right, over and over!!!!!! Barb
M[arino] has given a legal opinion accept it."
At her deposition, plaintiff admitted Marino advised her she was
"absolutely wrong" that the bidding statute on which plaintiff relied barred the
County nursing home from considering "negative prior experience" in the award
of the pharmacy contract. Plaintiff, nevertheless, on the summary judgment
motion "[d]enied as stated" defendants' assertion that Marino "determined that
plaintiff was referring to a statutory provision that had no application to the
process of evaluating a vendor, and that the nursing home could indeed utilize
prior negative experience in their evaluation of a bidding vendor," adding:
"Bakely-Marino testified that if it had been a bid situation that plaintiff, a non -
attorney, would have been right." 7 Plaintiff admitted at her deposition there was
7
Marino, asked at her deposition whether she had formed "any opinion as to
the correctness of [plaintiff's] position," responded: "If it was a bid situation as
opposed to a competitive contract, she would have been right. But because it
was a competitive contract, I was right." Marino explained the statute plaintiff
thought applied was limited to disqualification of a bidder and did not address
evaluation of a responsive bid.
A-4521-16T3
11
nothing illegal in the County nursing home having awarded the pharmacy
contract to a new vendor based on negative experience with its existing provider,
notwithstanding her initial advice to the contrary.
Following the meeting at which the Freeholders tabled the contract award,
Director Thornton asked Lindsay to investigate whether plaintiff had any ties to
the incumbent pharmacy provider. Lindsay tasked Al Barnett, the County's risk
management investigator, to look into the matter. He interviewed plaintiff, who
stated she had no ties to the vendor. After the interview, Barnett submitted a
two-and-a-half-page report to Lindsay. Barnett undertook no other investigation
into the matter. Although Barnett testified at his deposition he did not state a
conclusion in that report, as was his practice, he found no impropriety or
appearance of impropriety in plaintiff's involvement in the bid.
At her deposition, plaintiff testified there was nothing wrong with
Lindsay, "based on the context of what happened involving this pharmacy RFP,
to have directed Mr. Barnett to interview [her]." She acknowledged it would
have been Lindsay's responsibility to recommend an investigation were there a
concern about an inappropriate relationship between the purchasing agent and a
vendor. Plaintiff also conceded Barnett was the appropriate person to have
conducted the inquiry, and his questions were focused and in no way
A-4521-16T3
12
inappropriate. Asked at her deposition whether she had any "any facts or
evidence that would suggest that anything concerning the pharmacy RFP played
a role in the decision not to reappoint you," plaintiff answered "no." Plaintiff
likewise testified she had no facts or evidence to suggest the County's
investigation of her or the results of the investigation of the pharmacy RFP
played a role in the decision not to reappoint her.
The Ballard Spahr Investigation and Contract
By Spring 2014, the relationship between County Counsel Marino and the
Freeholders had broken down over Marino's allegations of nepotism involving
Lindsay, Director Thornton's stepson. Marino, who had understood Lindsay was
being hired as an assistant county counsel reporting to her as opposed to Director
of Human Resources, expressed concern about "Lindsay's ability to be
unsupervised as a department head." Marino further alleged she was
compensated less well than male counterparts had been, and specifically that
Lindsay was being paid more than what she was paid when she headed human
resources. Finally, Marino asserted she had grown to distrust the members of
the Freeholder Board, her client. Marino shared some of her concerns, at least
as they related to Thornton and Lindsay, with plaintiff.
A-4521-16T3
13
In March, Assistant County Counsel Jim Arsenault stepped into the
rapidly deteriorating relations between Marino and the Freeholders and advised
Director Thornton and the Freeholder Board it needed to immediately hire
outside counsel with no connection to the County to investigate Marino's
allegations.8 Arsenault researched several firms, ultimately recommending two
to the Board. The Board determined to retain Ballard Spahr, in part because the
partner who would oversee the investigation indicated she could be immediately
available to begin work, which Arsenault had advised was critically important.
When Marino told plaintiff, with whom she had a "both social and
professional" relationship, that the County had hired a firm to investigate
Marino's complaints, plaintiff asked Marino to tell the investigators she also had
concerns and wanted to be interviewed. Plaintiff advised the investigators from
Ballard Spahr she was upset about having been "investigated" in connection with
the pharmacy RFP at Lindsay's behest. She also answered their questions about
Marino's "concerns regarding Mr. Lindsay's handling of the RFP for workers'
compensation claims." Plaintiff told the investigators Lindsay "questioned
whether he could ask a vendor to fax a new proposal after the bid process had
8
Marino testified at her deposition that she went out on medical leave in t he
middle of May 2014 and never returned to work.
A-4521-16T3
14
closed." The report notes "[plaintiff] said absolutely not," and further, that "Ms.
Marino said that Mr. Lindsay clearly does not know local public contract law,
which scared [plaintiff]."
In their statement of undisputed material facts, defendants asserted the
lawyers from Ballard Spahr "were unable to conclude, based on the evidence
presented to them by plaintiff, Ms. Marino and Mr. Lindsay, that Mr. Lindsay
did anything inappropriate in his handling of the Workers Comp RFP." Instead,
they concluded it was "appropriate for Mr. Lindsay to seek counsel regarding
processes with which he was unfamiliar." In her responsive fact statement,
plaintiff "[a]dmitted that the counsel bought and paid for by the County outside
the appropriate protocols found that the County had not engaged in inappropriate
actions."9
9
As the majority notes, the June 4, 2014 report Ballard Spahr issued to the
County of its investigation is very heavily redacted. Only a few lines of the
thirty-seven page report, however, appear devoted to the workers' comp RFP,
and the complaint about the RFP is attributed to Marino. The report notes
Marino's "concerns regarding Mr. Lindsay's handling of the RFP," the
investigators' inability "to substantiate the allegations that Mr. Lindsay
improperly handled the RFP relating to obtaining new outside counsel for
workers' compensation claims," and their conclusion that it was "appropriate for
Mr. Lindsay to seek counsel regarding processes with which he is unfamiliar."
The most extensive reference to plaintiff appears in a footnote on page nine
relating the information plaintiff offered the investigators about her upset over
being "investigated" in connection with the nursing home RFP, a subject Ballard
A-4521-16T3
15
Ballard Spahr's contract with the County was not processed through the
Purchasing department but instead was handled by Assistant County Counsel
Arsenault. At a bi-weekly meeting of the County's senior staff sometime in
April or May,10 after the first Ballard bills had been submitted, plaintiff asked
why the Ballard Spahr contract was not put out to bid if the bills were over
$17,500.11 Shortly before June 10, when the resolution approving the contract
was scheduled to be voted on by the Freeholders, plaintiff spoke to Arsenault as
the resolution was being drafted to advise it needed to "have non-fair, non-open
appears not to have explored, presumably because of Lindsay's slight
involvement and that it was not among the issues Marino raised.
10
Although plaintiff in her complaint alleges this meeting occurred on or about
April 16, 2014, in her answers to interrogatories submitted on the motion, she
refers to the same meeting as occurring "[i]n or around May 2014." At her
deposition, she testified the meeting was "[i]n the April time period."
11
N.J.S.A. 40A:11-3(a) permits a local government to award a contract not
exceeding $17,500 without public advertising for bids. Professional services
contracts for services, such as legal counsel, are, however, exempt from the
statute's requirements for public advertising and bid. See N.J.S.A. 40A:11-
5(1)(a)(i).
A-4521-16T3
16
on it"12 and a "not to exceed figure." 13 Arsenault inserted both into the resolution
and the contract. Plaintiff, however, maintains the agenda, which had already
been posted, was not amended to note the change. 14
12
Arsenault explained at his deposition that "non-fair, non-open" is not a
statutory term under the Local Public Contracts Law but "a disjunctive that
arises because the statute says there is an expectation that public contracts will
be awarded in a fair and open process." He testified he believed Cape Ma y
County had "designated any contract that deviates from the RFP process as non-
fair and non-open." Arsenault further testified the County had adopted the State
Comptroller's 2010 "Best Practices for Awarding Service Contracts" designed
to "guide governing bodies in their efforts to competitively contract for services"
not "awarded solely on the basis of the lowest responsible bid." See
http://www.njgov/comptroller/news/docs/service contracts report.pdf.
13
Plaintiff testified at deposition that Arsenault's administrative assistant "was
actually preparing the contract and resolution on her terminal" when plaintiff
"walked down" to inquire about the Ballard contract after noticing it on the
Freeholders' posted agenda. Plaintiff saw the agreement on the terminal screen
and advised Arsenault "[t]he agenda title must have non fair, non open on it, and
it must have a not to exceed figure on it." She watched as Arsenault "inserted
non fair and non open in the agreement. He didn't have a figure on it, so he
inserted a figure of, I believe it was $405 an hour, not to exceed $205,000 if I
have that correctly."
14
Plaintiff asserted at her deposition that the County's failure to amend the
agenda item to include the non-fair, non-open language and a not to exceed
figure was "illegal," but did not identify any statute or regulation imposing that
requirement. Although she referred to a resolution putting "an RFP policy in
place," no such resolution is included in the record on appeal. She has also not
identified any provision in the State Comptroller's Best Practices she alleges the
County violated.
A-4521-16T3
17
Subsequently, plaintiff sent Director Thornton an email on July 16, which
she copied to Director of Operations Mike Laffey, Clerk of the Board Bozzelli
and Arsenault about her concerns with the June 10 resolution approving the
professional services agreement with Ballard Spahr. Arsenault, although
acknowledging plaintiff's earlier advice about the wording of the resolution
approving the Ballard contract, testified plaintiff's email to Thornton was his
first notice that she objected to the process by which Ballard was retained.
In her email to Thornton, plaintiff stated she was concerned that Ballard
had not completed "the political contribution disclosure form that was supposed
to be completed 10 days prior to the award of the contract." Although plaintiff
stated she "underst[ood] the form is being worked on now and will be sent out
to [Ballard Spahr] to be completed," she asserted that "[w]hen a contra ct with a
professional services firm exceeds $17,500.00 that [is] not awarded pursuant to
a fair and open process, there is a process to be followed for political
contribution disclosures." Stating she was "just trying to avoid an audit
exposure of future contracts," plaintiff closed by noting the Ballard Spahr
contract "did not flow through the Purchasing Dept."
A-4521-16T3
18
Director Thornton responded to plaintiff's email a few hours later by
asking Arsenault to "[p]lease comment on Ballard Spahr." Arsenault sent
plaintiff the following twenty minutes later.
Kim:
In a perfect [world] I agree wholeheartedly with
your statements and appreciate the work you've done to
ensure pay to play compliance. All I can say with
regard to Ballard is that these were exceptional
circumstances and we required the services of a law
firm with impeccable credentials and no prior
connection to the County in order to address very
serious concerns. I am confident that Ballard will be
able to demonstrate pay to play compliance with the
submission of their certifications. While this will come
beyond the timetable of the Act I also believe the ends
justified the means in this circumstance.
Certainly when time allows for a more deliberate
approach to retaining outside counsel, the wisdom of
the policies you've highlighted can't be questioned.
Asked about the email at his deposition, Arsenault explained his
confidence stemmed from his inquiries with the firm when he vetted them for
the retention. He deliberately sought firms out of the area and confirmed those
he recommended to the Freeholders had no prior contact with the County.
Arsenault also explained he counseled against using one of the firms the County
had open contracts with because they would invariably have had contact with
A-4521-16T3
19
County Counsel Marino and likely with Thornton and others in the County as
well. Arsenault testified he was also concerned "that there would be suggestions
of a political influence in the process" and thus wanted to ensure a thorough
investigation "done by an outfit that had no connection . . . to any fact witness,
to any member of the county administration and/or had a current contractual
relationship." Arsenault considered the "very serious" allegations Marino
leveled against the Freeholders "to be as legitimate a threat to the orderly process
of county government as any threat could be" and readily justified an emergency
procurement for professional services.
Plaintiff testified at deposition she did not agree with Arsenault that the
circumstances justified an emergency procurement. She replied to his email
asserting that exceptional circumstances justified Ballard's retention by saying:
"I could interpret on any given day situations deemed exceptional but when we
are spending taxpayers' dollars to the amount of a quarter of a million that does
not justify the fact we didn't RFP the private sector." Arsenault responded to
plaintiff, stating: "I understand, but when your house is on fire you don't always
have the luxury to comparison shop the price of hoses or check whether the
fireman has his licenses in order. Beyond that, like I said, I agree with
everything you've done to ensure contract compliance."
A-4521-16T3
20
Plaintiff testified at her deposition that the County had an RFP in place
with two law firms and because the contract would be over $17,500, she "had
the responsibility as a purchasing agent and the authority to retain an attorney,
knowing that [the County] already had an RFP in place." As part of the record
on summary judgment, however, plaintiff admitted she was not aware employers
had a legal obligation to promptly investigate complaints implicating the
employment laws; she did not know the substance of Marino's complaints, who
they involved or "how high up in the [County] the complaints targeted peo ple."
She also admitted there are exceptions to the RFP rules, and the decision as to
whether something did or did not justify an exception requiring retention of
counsel outside the RFP process rested with Arsenault and not Purchasing.
Asked "what facts or evidence do you have that would suggest that
anything to do with the Ballard Spahr agreement played a role in the decision
not to reappoint you," plaintiff responded: "I pointed out to Gerry Thornton, my
manager, that the Pay-to-Play document still had not been completed, and that
was in July." Asked "other than having complained, according to your
testimony, about issues relating to that contract, what evidence do you have that
those complaints played any role in the decision not to reappoint you," p laintiff
replied:
A-4521-16T3
21
It was in that July time period, and I received my Rice
Notice. And next thing I know, I'm not being
reappointed. . . . And I had no performance issues ever
documented, no one spoke to me for the months during
the pharmaceutical and the Ballard Spahr. Gerry
Thornton used to come in my office once a month and
talk to me. I hadn't seen him in months.
Thornton's decision to not reappoint plaintiff
Freeholder Director Thornton made the decision not to reappoint plaintiff.
He testified at deposition he "had been going back and forth for probably a five
or sixth month period" as to whether to reappoint her and had reservations about
her performance for an even longer period. Thornton claimed a number of
department heads complained to him about working with plaintiff. He, however,
never documented any complaints or performance problems. He claimed he did
not document the problems because none rose to the point "of taking
discipline." 15 Plaintiff testified at her deposition there were no evaluations of
employees at the County.
Asked at his deposition whether he "consider[ed] [plaintiff]
knowledgeable about public contract laws," Thornton responded, "[n]ot
15
Although not sure of the date, Thornton testified he once, perhaps in 2013,
briefly discussed with plaintiff the need to forge better working relations with
the department heads. Plaintiff denies she was ever approached by Director
Thornton or any other Freeholder about an issue with her performance.
A-4521-16T3
22
always." Asked to elaborate, Thornton related the mistake plaintiff made with
the pharmaceutical RFP. He recalled the incident involved plaintiff "arguing
with county counsel" over interpretation of the law governing public contracts,
requiring him to step in and say "that county counsel was the one that interprets
the law."
Thornton testified he was not aware plaintiff "had voiced any objection
that the County was violating its obligations under the public contracting law"
before determining not to reappoint her. He explained he was out on medical
leave from the end of March to the beginning of May in 2014. He testified he
was not aware she worked on a workers' comp RFP in 2014 and was not aware
she alleged his stepson "had asked her if he could change out a page in a workers'
compensation bid." He did not recall Lindsay ever mentioning anything about
it. Thornton testified he was on medical leave when Ballard Spahr was retained
and was not involved. Thornton did recall plaintiff sending him an email
objecting to Ballard being retained without an RFP, which he sent to county
counsel for response.
Thornton admitted seeing the investigation report Ballard issued at the
conclusion of its investigation but did not recall the report containing a summary
of the firm's interview with plaintiff. He testified he arranged for a Rice notice
A-4521-16T3
23
to plaintiff because he intended to speak with the Board of Freeholders about
not reappointing her in closed session. Bozzelli sent an email directing
Arsenault to prepare the notice on July 14. The notice was delivered to plaintiff
on July 16, the same day she sent Thornton her email about the Ballard Spahr
contract.
Plaintiff admits the July 16 email was the first time she voiced her
concerns over the contract to Thornton. Although Thornton testified he had
gone back and forth about reappointing plaintiff, he testified he "probably knew
. . . for some months" before he returned from leave in May that he "was not
going to recommend her reappointment." He testified he did not remember
approving her attendance at "a national conference at a cost of $1,500 to the
county."
Testimony of the other directors
During the course of discovery, plaintiff deposed Beth Bozzelli, Clerk of
the Freeholder Board; Mike Laffey, Director of Operations; and Gene Sicilia,
the County's former Purchasing Agent. Plaintiff admitted on the motion for
summary judgment that all three testified to complaints about the Purchasing
Department when she was the Director.
A-4521-16T3
24
Bozzelli had been Director of the Department of Aging both before and
after plaintiff became the Purchasing Agent. She testified she and other
department heads did not get adequate support for their purchasing needs when
plaintiff ran the purchasing department. Before plaintiff became the director,
the purchasing department was responsible for putting the RFP packets together
for the other departments because Purchasing knew what was required. After
plaintiff became director, tasks formerly handled by Purchasing, including
assembling packets for RFPs, calling around for quotes and processing
paperwork, were left to the departments.
Mike Laffey testified to his frustration with Purchasing after plaintiff
became the director. Laffey was frustrated with plaintiff when he was Parks
Director because she left preparations of an RFP for concessions at the County
zoo to him. Laffey felt responsibility for the RFP belonged to plaintiff because
her predecessor had always handled the RFP for the Parks Department. He
testified the departments were not equipped to prepare their own purchasing
documents, leading to delays in important contracts. Laffey also disliked that
plaintiff micromanaged some of his expenditures, even when they were "well
below the quoted threshold." Laffey testified plaintiff was the least helpful of
the three purchasing agents he worked with at the County.
A-4521-16T3
25
Laffey also testified that as Director of Operations, his approval was
required for any seminar an employee wanted to attend requiring a County
expenditure. Asked about whether he approved plaintiff attending the New
Jersey Association of Counties conference in May 2014 or a $1500 expenditure
for her to attend a seminar by the National Institute of Government Purchasing,
Laffey replied that he approved "30 a week" and did not recall either one.
Gene Sicilia, who preceded plaintiff as Qualified Purchasing Agent and
continued to work as a purchasing assistant on a part-time seasonal basis
throughout her tenure, was asked by Director Thornton to temporarily assume
plaintiff's duties after her departure. When asked at his deposition if Thornton
told him why he had decided not to reappoint plaintiff, Sicilia responded: "Mr.
Thornton told me that he was getting complaints from most all of departments
that they didn't want to deal with Purchasing or with [plaintiff]."
Sicilia testified that after plaintiff left, he "had to do a lot of fence
mending" with the departments. He claimed he visited almost all of the
departments and that "each of the department heads with whom [he] [spoke]
. . . said that they had had difficulties dealing with purchasing." Asked whether
"any of them explain[ed] what those difficulties were," Sicilia replied, "Yeah,
A-4521-16T3
26
they had a hard time dealing with [plaintiff]. They found her to be kind of my
way or the highway."
Marino, who testified plaintiff was "excellent" at her job, conceded she
heard other department heads "griping [and] whining" over dealing with plaintiff
on purchasing issues. Asked at her deposition whether plaintiff was "someone
who gave off the appearance that she took the rules of compliance rather
seriously," Marino replied: "Yes, there was no doubt. Yes. She would follow
the absolute letter of the law, even if it killed everybody else."
The trial judge's decision
After reviewing those facts against what plaintiff must prove to succeed
on a CEPA claim under N.J.S.A. 34:19-3(c)(1)16 and Dzwonar v. McDevitt, 177
N.J. 451, 462 (2003), in accordance with the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), the trial judge
concluded plaintiff had established her prima facie case but no rational
factfinder could determine Thornton's "motivations for not reappointing
16
The trial judge also analyzed plaintiff's report of Lindsay's question about
swapping out a page in the workers' comp RFP to the Ballard Spahr investigators
under N.J.S.A. 34:19-3(a)(1), the subsection prohibiting retaliation based on
disclosing or threatening to disclose to a supervisor or public body activity by
the employer the employee reasonably believes a violation of a law, rule or
public policy.
A-4521-16T3
27
plaintiff resulted from plaintiff's engagement in CEPA-protected activity" or
that the reason Thornton claimed for not reappointing plaintiff was simply a
pretext for retaliation. See Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso,
P.A., 189 N.J. 436, 445-46 (2007) (noting "[t]he inquiry is 'whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law'" (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995))). Although I am not
convinced plaintiff established a prima facie case of retaliation, I agree with the
trial court judge that plaintiff's evidence of pretext is simply too thin to survive
summary judgment.
Analysis
Although plaintiff clearly sets forth the three17 acts she contends
constituted CEPA-protected conduct — her objection to Lindsay's "desire to
17
Although it appears as if plaintiff asserted only three instances of CEPA-
protected conduct on the motion, she asserts a fourth in her appellate brief —
that she "voiced her upset to Ballard Spahr at having been falsely accused of
having a personal relationship with a vendor seeking the contract to provide
pharmacy services to the County nursing home." Besides not identifying any
law, rule or public policy she reasonably believed defendants' violated by such
conduct, plaintiff admitted on the motion it would have been Lindsay's
responsibility to recommend an investigation; that Barnett was the appropriate
person to have conducted the inquiry; and that his questions were not
A-4521-16T3
28
switch a page in . . . his favored law firm's response" to the workers' comp RFP
after bid opening, which she advised was illegal; her report of that incident to
the Ballard Spahr investigators; and her "objection to the retention of Ballard
Spahr because it had been done outside of the competitive bidding process,
without the proper language and conditions in the resolution appointing said
firm, and without the proper pay to play documentation having been completed,"
— she nowhere advises us of the subsection of CEPA under which she
prosecuted those claims. It is not identified in her complaint or in her appellate
brief. That information is essential to evaluating whether plaintiff could prove
her cause of action under CEPA. Plaintiff's failure to identify the subsection of
CEPA under which she proceeded in the trial court makes a definitive answer
on her prima facie case not possible for two of her three claims.
N.J.S.A. 34:19-3, which defines the three types of employee conduct
protected by CEPA, provides that
[a]n employer shall not take any retaliatory action
against an employee because the employee does any of
the following:
inappropriate. She further testified at her deposition that she had no facts or
evidence to suggest the County's investigation of her or the results of the
investigation of the pharmacy RFP played a role in the decision not to reappoint
her. As plaintiff has, by these admissions, effectively conceded her statements
to Ballard on this topic would not support a CEPA claim, I do not consider it
further.
A-4521-16T3
29
a. Discloses, or threatens to disclose to a supervisor or
to a public body an activity, policy or practice of the
employer, or another employer, with whom there is a
business relationship, that the employee reasonably
believes: (1) is in violation of a law, or a rule or
regulation promulgated pursuant to law, . . .;
b. Provides information to, or testifies before, any
public body conducting an investigation, hearing or
inquiry into any violation of law, or a rule or regulation
promulgated pursuant to law by the employer, or
another employer, with whom there is a business
relationship, . . .;
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 . . .;
(2) is fraudulent or criminal . . . ; or
(3) is incompatible with a clear mandate of public
policy concerning the public health, safety or welfare
or protection of the environment.
[See also Estate of Roach v. TRW, Inc., 164 N.J. 598,
610 (2000) (explaining "[t]he Legislature has . . .
design[ed] a statutory scheme that protects employees
who complain about activities that fall into three basic
categories: activities that the employee reasonably
believes are in violation of some specific statute or
regulation (sections 3a. and 3c.(1)), are fraudulent or
criminal (section 3c.(2)), or are incompatible with
policies concerning the public health, safety or welfare
or the protection of the environment (section 3c.(3)).]
A-4521-16T3
30
In her brief on appeal, plaintiff repeatedly characterizes her "acts of
protected conduct" as "consist[ing] of her objections" to Lindsay's desire to
switch out the bid proposal in the workers' comp RFP, her subsequent report of
that incident to the Ballard Spahr investigators and her objections to Ballard's
retention without public bidding. Having reviewed the record, I think only the
first, plaintiff's advice to Lindsay on the workers' comp RFP, is likely actionable
on this record, and only if plaintiff brought her complaint under subsec tion
(c)(3).
Plaintiff's subsequent disclosure of Lindsay's conduct to the Ballard
investigators does not appear to me independently actionable on the facts,
unless, again, plaintiff characterized it as a further "objection" to Lindsay's
conduct under subsection (c)(3). Plaintiff's complaints about the manner of
Ballard's retention would not, in my view, support a CEPA claim regardless of
how she styled her complaint. Further, even if plaintiff could establish a prima
facie case of retaliation under CEPA based on one of these three alleged acts of
protected conduct, she failed to adduce sufficient proof of pretext to put the
County's legitimate, non-retaliatory reason for her non-reappointment in issue,
thus making summary judgment dismissing her complaint entirely appropriate.
A-4521-16T3
31
Taking the three incidents in turn, if plaintiff proceeded under subsection
(c)(1) or (3) which protect an employee who "objects to, or refuses to
participate" in an activity, she had to have demonstrated as part of her prima
facie case that she had an objectively reasonable belief that Lindsay's "desire to
switch a page in . . . his favored law firm's response" to the workers' comp RFP
after bid opening was "in violation of a law" or "incompatible with a clear
mandate of public policy." N.J.S.A. 34:19-3(c); see Maimone v. City of Atl.
City, 188 N.J. 221, 231 (2006).
If plaintiff proceeded under subsection (c)(1), her prima facie case would
consist of demonstrating (1) she reasonably believed that Lindsay asking her
whether he could have the vendor fax a new proposal page to him was a violation
of a law, rule, or public policy; (2) her telling Lindsay that what he "desired" to
do was illegal constituted a whistleblowing activity; (3) she was not reappointed
as the Purchasing Agent; and (4) there existed a causal relationship between her
advice to Lindsay and Thornton's decision not to reappoint her. See Dzwonar,
177 N.J. at 462.
Defendants contend plaintiff failed to establish a prima facie case of
retaliation in connection with the workers' comp RFP because plaintiff cannot
establish she objected to an activity by Lindsay which she reasonably believed
A-4521-16T3
32
was in violation of the public bidding laws, as he did not engage in any activity
beyond asking her a question, which she concedes was not illegal. Defendants
further contend plaintiff cannot establish a causal connection between her
response to Lindsay's question and Thornton's decision not to reappoint her to a
third term.
As the majority notes, "bidders and the public entities that solicit bids are
bound by the express terms of the bid proposal. 'Settled principles of public
bidding dictate that no material element of a bid may be provided after bids are
opened.'" Suburban Disposal, Inc. v. Twp. of Fairfield, 383 N.J. Super. 484,
492 (App. Div. 2006) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth.,
137 N.J. 8, 37 (1994)). Thus plaintiff clearly identified settled law that would
prevent the County from awarding a contract based on Lindsay having a bidder
fax a new proposal page to him after bid opening. It is less clear to me she set
forth facts to support an objectively reasonable belief Lindsay violated that law.
See Dzwonar, 177 N.J. at 464.
The trial court judge correctly noted that whether Lindsay actually
violated the bidding laws, which he clearly did not, is irrelevant to the analysis
under Maimone, because all that is required is that plaintiff "reasonably
A-4521-16T3
33
believed" Lindsay's activity "violat[ed]" the public bidding laws. 188 N.J. at
231. But Maimone also makes clear
it is easier for an employee who proceeds under c(3) to
prove that he or she reasonably believed the employer's
conduct was "incompatible" with a clear mandate of
public policy expressed in a law, rule or regulation than
to show, as required by c(1), a reasonable belief that the
employer's conduct "violated" a law, rule or regulation.
[Ibid.]
Plaintiff, as earlier noted, has not advised us of the subsection of CEPA
under which she proceeds. If plaintiff has proceeded exclusively under (c)(1),
as it appears from the record before us, I do not believe she could show Lindsay's
question to her — could he have a bidder fax a new proposal page to him after
bid opening — would support an objectively reasonable belief he had violated
the public bidding laws.
Plaintiff admits Lindsay did not ask or instruct her to switch out the page,
nor did he do so himself. Plaintiff's proofs do not meet the Dzwonar standard
of "facts that would support an objectively reasonable belief that a violation has
occurred." 177 N.J. at 464. There is simply nothing in this record from which
a factfinder could reasonably infer from Lindsay's question that a violation of
the public bidding laws had occurred. Not only did Lindsay not violate our
bidding laws, plaintiff could not reasonably believe by his question that he had.
A-4521-16T3
34
Thus I would conclude, as a matter of law, that plaintiff's belief that Lindsay's
conduct violated the public bidding laws under subsection (c)(1) was not
objectively reasonable. See Maimone, 188 N.J. at 231.
The trial court, and the majority, conclude plaintiff established the first
element of her prima facie case as to the workers' comp RFP because "genuine
issues of material fact exist as to whether Lindsay's question was one of mere
inquiry or a proposed course of conduct that violates New Jersey's Local Public
Contracting Law." Neither the trial court nor the majority, however, cite any
case explaining how Lindsay's alleged "proposed course of conduct" could
anchor a reasonable belief on plaintiff's part that her co-worker's question
constituted a violation of the Local Public Contracts Law under subsection
(c)(1).18
18
There are cases in which we have held a proposed course of conduct by the
employer provided the plaintiff with an objectively reasonable belief that a
violation of law was in progress or had already occurred. See Parker v. M & T
Chems., Inc., 236 N.J. Super. 451, 452, 455 (App. Div. 1989) (finding CEPA
cause of action for in-house lawyer alleging retaliation after objecting to being
tasked with overseeing copying and use of misappropriated confidential trade
secrets of competitors in employer's possession but not yet examined); Kalman
v. Grand Union Co., 183 N.J. Super. 153, 158-59 (App. Div. 1982) (pre-CEPA
case reversing summary judgment for employer that terminated pharmacist who
objected to, and reported to the Pharmacy Board, supervisor's illegal plan to
close pharmacy area of a grocery on July 4, while the rest of the store remained
open). But a review of those cases makes clear the plaintiffs based their beliefs
A-4521-16T3
35
Plaintiff would have an easier time demonstrating that Lindsay's proposed
course of conduct was incompatible with a clear mandate of public policy
expressed in the public bidding laws under subsection (c)(3). As Judge
Skillman, speaking for the Court in Maimone, explained, "[t]o 'violate' a law, a
person must commit '[a]n infraction or breach of the law,' but a person's conduct
may be found 'incompatible' with a law based solely on a showing that the
conduct is 'irreconcilable' with that law." Ibid. (quoting Black's Law Dictionary
768, 1564 (7th ed. 1999)). Plaintiff can readily establish the additional (c)(3)
requirement that her complaint involve a matter of public interest, see Turner v.
Associated Humane Soc'ys, Inc., 396 N.J. Super. 582, 594 (App. Div. 2007),
because "[t]he purpose of competitive bidding for local public contracts is . . .
not the protection of the individual interests of the bidders but rather the
advancement of the public interest," see River Vale v. R. J. Constr. Co., 127 N.J.
Super. 207, 215 (Law Div. 1974).
Although plaintiff could thus likely establish a reasonable belief that
Lindsay's "desire to switch a page in . . . his favored law firm's response" to the
workers' comp RFP was incompatible with a clear mandate of public policy
on a more extensive course of conduct by their employers than a single question,
as here.
A-4521-16T3
36
under subsection (c)(3), she would still, of course, have to establish the three
remaining elements of her cause of action. See Dzwonar, 177 N.J. at 462. I
agree with my colleagues that Thornton's failure to appoint plaintiff to a third
term as the County's qualified purchasing agent would qualify as an adverse
employment action under N.J.S.A. 34:19-2(e). See Nini v. Mercer Cty. Cmty.
College, 406 N.J. Super. 547, 556 (App. Div. 2998) (noting that "no functional
difference exists between the failure to reappoint at the end of a fixed term and
the dismissal of an at-will employee.") (citation omitted). I, however, harbor
considerable doubt that plaintiff's response to Lindsay's question — that to
proceed as he "desired" would be illegal — fits within the case law as whistle-
blowing, especially in light of the email she sent him the same day explaining
how he could lawfully justify selection of his preferred firm. See Tartaglia, 197
N.J. at 107 (acknowledging the relevance of the nature of a complaint and the
"manner in which it was voiced" in evaluating an employee's claim).
But even were I to accept that plaintiff's response to Lindsay constituted
whistle-blowing, I have more difficulty accepting plaintiff adduced facts on the
motion to establish a causal connection between her response to Lindsay and
Thornton's not appointing plaintiff to a third term. Plaintiff admits she never
complained about Lindsay's conduct to Thornton. And there was a five mont h
A-4521-16T3
37
gap between Lindsay's question about the workers' comp RFP and Thornton's
decision not to reappoint her in advance of the expiration of her term.
While "temporal proximity of employee conduct protected by CEPA and
an adverse employment action is one circumstance that may support an inference
of a causal connection," Maimone, 188 N.J. at 237, it is not strong support for
such an inference here. Because the timing is not "unusually suggestive of
retaliatory motive," plaintiff was obliged to "set forth other evidence to establish
the causal link." Young v. Hobart W. Grp., 385 N.J. Super. 448, 467 (App. Div.
2005) (citation omitted) (addressing proof of a retaliation claim under the Law
Against Discrimination).
The only evidence in the record plaintiff can point to in support of her
claim that Thornton was aware of her encounter with Lindsay over the workers'
comp RFP is its inclusion in the Ballard Spahr report. Plaintiff asserts her report
to the Ballard Spahr investigators constituted a separate instance of protected
conduct. Although the trial judge found plaintiff's report to Ballard constituted
CEPA-protected conduct under N.J.S.A. 34:19-3(a), plaintiff's claim does not
fit neatly under that subsection as Ballard Spahr was neither plaintiff's
supervisor nor a public body. See N.J.S.A. 34:19-3(a). Even assuming,
however, that Ballard could properly be considered an extension of the
A-4521-16T3
38
Freeholder Board that retained the firm and thus "a supervisor," the claim suffers
the same problem as a claim based on the original exchange under (c)(1).
Lindsay's single question to plaintiff cannot support an objectively reasonable
belief that Lindsay violated the public bidding laws. In addition, a claim under
subsection (c)(3) arising out of plaintiff's report of the incident to Ballard has
another problem. Although plaintiff could likely establish an objectively
reasonable belief that Lindsay's "desire" to swap out a page in a bid submitted
in response to the workers' comp RFP was incompatible with a clear mandate of
public policy under subsection (c)(3) when she responded to Lindsay in
February 2014, it is harder to accept such belief as objectively reasonable when
she spoke to the Ballard lawyers two months later.
Plaintiff testified at her deposition that when she responded to Lindsay at
the Freeholders' meeting in February, she did not know what he did with the
information, but she agreed with her counsel Lindsay was not asking "a
generalized question about whether a page could be switched out" but was
instead expressing "a course of conduct that he wanted to engage in." On appeal
she argues her impression was reinforced because Lindsay "[a]pparently,
unhappy with plaintiff's answer, . . . then went to Gene Sicilia and asked if a
page in a proposal received in response to the RFP could be altered."
A-4521-16T3
39
Leaving aside that Sicilia testified he only spoke to Lindsay at plaintiff's
behest and that Lindsay did not approach him, the latter fact plaintiff has
conceded, by the time she spoke with the Ballard investigators, the workers'
comp contract had already been awarded based on her own recommendation to
the Freeholders. Plaintiff knew Lindsay had not acted on his "desire" to swap
out the page, and she admitted she had not seen anything in Lindsay's conduct
in the ensuing two months to give her any further concern. Because we measure
a plaintiff's objectively reasonable belief at the time she blew the whistle, see
Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193 (1998), a CEPA claim based on
plaintiff's report to Ballard is considerably weaker than the one based on the
original incident.
Regardless, however, of whether plaintiff could prove her report to the
Ballard investigators was independently actionable under CEPA, it is central to
plaintiff's case because it represents her only proof that Thornton was aware of
her advice to Lindsay about the workers' comp RFP before he put in motion his
decision not to reappoint her. Plaintiff claims the trial court failed to find the
report established the causal link between her advice to Lindsay and the non-
renewal of her appointment because it usurped the role of the jury in finding
credible Thornton's testimony that he did not remember reading of plaintiff's
A-4521-16T3
40
complaints in the report. The majority accepts the view that the trial court judge
impermissibly made credibility findings on the motion. Specifically, the
majority concludes "[t]he trial court accepted defendants' argument that
Thornton did not know about plaintiff's protected activities when he made the
decision not to reappoint her." Ante at 9. I respectfully disagree.
The trial court judge specifically noted Thornton admitted receipt and
review of the Ballard Spahr report. Although the judge appropriately
acknowledged Thornton's testimony that he did not recall the report including
anything about plaintiff's complaint of the workers' comp RFP, the judge did not
deem Thornton's testimony credible. He, instead, concluded that Thornton's
knowledge of plaintiff's complaint, by its inclusion in the Ballard report, viewed
most favorably to her, was insufficient to establish that plaintiff's "objection
played a material role in [Thornton's] determination to not reappoint" her, even
if it might suffice, because of the closer timing, as evidence of a link between
the two events. See Maimone, 188 N.J. at 239 (noting "a finding of the required
causal connection may be based solely on circumstantial evidence that the
person ultimately responsible for an adverse employment action was aware of
an employee's whistle-blowing activity"). Although the majority is critical of
the trial judge for finding plaintiff established a prima facie case of retaliation
A-4521-16T3
41
under CEPA while at the same time "confusingly add[ing]" that plaintiff "has
not shown a causal connection between [her] engagement in alleged CEPA-
protected activity and the adverse employment action," ante at 4, I think the
comment is easily understood in context.
The remark was made at the end of the judge's opinion, just after he
concluded that plaintiff had failed to present anything more than her subjective
belief that Thornton's reasons for not reappointing her were a pretext for
retaliation. In my view, the judge was doing nothing more than acknowledging
the obvious; that is, even giving plaintiff the benefit of the doubt on a prima
facie showing, meaning she produced some evidence of a causal connection
based on the timing of the events, her proofs of a causal connection between any
alleged protected activity and her non-reappointment were thin, and she failed
to adduce any evidence of pretext, a conclusion I think unassailable on this
record. See Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 291-92 (App.
Div. 2001) (explaining most CEPA cases turn on the fourth element of causal
connection and discussing the role of pretext in proving that causal connection
or proximate cause in a CEPA case).
Although plaintiff's failure to identify the subsection of CEPA under
which she sued makes it impossible to come to any firm conclusion as to whether
A-4521-16T3
42
she established a prima facie case in connection with the workers' comp RFP,
the same is not true regarding her complaints about the Ballard Spahr contract.
The record makes clear plaintiff did not establish a prima facie case on the basis
of the latter claim, regardless of the subsection of CEPA under which she sued.
First, plaintiff cannot show she engaged in any whistle-blowing conduct
related to the contract before her July 16, 2014 email to Thornton complaining
about the County's failure to comply with the pay-to-play rules, and certainly
none of which she can show Thornton was aware. By her own testimony,
plaintiff raised no "objection" to Ballard's retention at the senior staff meeting
that took place in April or May. She admitted on the motion she only "inquired
as to why the contract with Ballard Spahr was non-fair and non-open and not
put out in an RFP." See Tartaglia, 197 N.J. at 109 (noting in the context of a
Pierce claim that a "passing remark" to co-workers is not a sufficient expression
of a disagreement with an employer's decision or policy to support that the
resulting discharge violates public policy). Further, there is no suggestion on
this record that Thornton attended that meeting.
Likewise, plaintiff posed no "objection" to the language of the resolution
Arsenault drafted approving the contract. Again, by her own testimony, she
noticed the item on the Freeholders' June 10 meeting agenda and walked down
A-4521-16T3
43
to Arsenault's office to advise it needed the "non-fair, non-open" language and
a "not to exceed figure." She then watched as Arsenault inserted both in the
resolution and the agreement. Although plaintiff asserts the agenda item was
not amended, and thus "the public never saw that it was a non fair, non open,"
she has not identified any law, rule or regulation the County violated by not
amending the agenda to insert the language plaintiff thought should be included.
Plaintiff's desire to see the public better informed in the absence of any law, rule
or regulation does not state a cause of action under CEPA. See Dzwonar, 177
N.J. at 467.
Second, it is undisputed plaintiff sent her July 16 email to Thornton, in
which she plainly did object to Ballard's retention without timely compliance of
the pay-to-play rules, after he had already arranged to advise his fellow
Freeholders of his decision not to renew her appointment. The parties agree
plaintiff sent her July 16 email to Thornton the same day she received her Rice
notice. But plaintiff conceded on the motion that Thornton had directed Beth
Bozzelli to issue the notice two days earlier. As plaintiff sent her July 16 email
to Thornton only after he had already set in motion the procedure for not
reappointing her, it obviously cannot support her claim it played a part in
Thornton's decision. See Tartaglia, 197 N.J. at 125 (noting plaintiffs alleging
A-4521-16T3
44
retaliatory discharge must show "they engaged in a protected activity known by
the employer" and "thereafter their employer unlawfully retaliated against
them." (emphasis added)).
Third, and most important, the County's retention of Ballard Spahr was
entirely legal, even if the firm filed its pay-to-play disclosure documents late.
Plaintiff conceded on the motion that, in addition to the general exemption for
professional services, there are exceptions to the public bidding laws for
emergency procurements. She admitted she did not know anything about the
employment laws and was not aware employers had a legal obligation to
promptly investigate complaints implicating them. Moreover, she admitted it
was "Arsenault's responsibility to make a decision on whether or not [Marino's
complaints] presented such an emergency that the County would simply go out
and retain counsel."
Plaintiff testified at deposition she simply did not agree with Arsenault
that the circumstances justified an emergency procurement. Her position was
that the County "had an RFP in place, and . . . should have used the two existing
vendors." Although plaintiff obviously believed the County should not have
retained Ballard Spahr outside the usual RFP process, CEPA provides no
"remedy for wrongful discharge for employees who simply disagree with an
A-4521-16T3
45
employer's decision, where that decision is entirely lawful." Young v. Schering
Corp., 275 N.J. Super. 221, 237 (App. Div. 1994). Plaintiff's disagreement with
Arsenault that the circumstances of Marino's allegations required outside
counsel with no prior connections to the County to conduct an independent
investigation, instead of turning to the two firms with which the County had
open contracts, cannot support a CEPA claim. See Schechter v. N.J. Dep't of
Law & Pub. Safety, Div. of Gaming Enf't, 327 N.J. Super. 428, 432 (App. Div.
2000) (finding no CEPA liability in case involving "nothing more than a policy
dispute between . . . middle and upper level management"); see also Hitesman
v. Bridgeway, Inc., 218 N.J. 8, 33 (2014) ("CEPA is not intended to protect an
employee 'who simply disagrees with the manner in which the hospital is
operating one of its medical departments, provided the operation is in
accordance with lawful and ethical mandates.'" (quoting Klein v. Univ. of Med.
& Dentistry of N.J., 377 N.J. Super. 28, 42 (App. Div. 2005))).
Even assuming plaintiff proceeded under a subsection of CEPA that would
have permitted her to pursue a claim based on Lindsay's actions in connection
with the workers' comp RFP, not apparent on this record, there is no doubt the
County articulated a legitimate, non-retaliatory reason for not awarding her a
third term. See Donofry, 350 N.J. Super. at 290-92 (explaining a defendant's
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46
intermediate burden of production in a CEPA pretext case). Thornton claimed
he did "[n]ot always" find plaintiff sufficiently knowledgeable about public
contracts law, and he got complaints from the other department heads that
Purchasing, and specifically plaintiff, was difficult to deal with in preparing bid
specifications and putting out RFPs.
As to Thornton's concern regarding plaintiff's knowledge of the bidding
laws, defendants point to the advice plaintiff gave about the pharmacy contract,
which County Counsel Marino deemed incorrect, although plaintiff continues to
maintain she would have been correct had the situation been different. Gene
Sicilia, the Purchasing Agent who temporarily assumed her duties when she was
not reappointed, testified Thornton told him at the time that he did not reappoint
plaintiff because of the complaints he got from the departments. Sicilia also
testified about the "fence mending" he needed to do with those departments
when he stepped back into serving as the County's qualified purchasing agent
after plaintiff's departure.
In addition, the two most senior staff in the County, Mike Laffey and Beth
Bozzelli, detailed at deposition their complaints about the Purchasing
Department under plaintiff's leadership. Both Laffey and Bozzelli testified
plaintiff required the departments to assume responsibilities for preparing RFPs
A-4521-16T3
47
and other purchasing tasks formerly handled by purchasing. They testified the
departments often lacked the necessary knowledge to assemble an effective
RFP, leading to delays in purchasing necessary goods and services. Even
Marino, who testified plaintiff was "excellent" at her job, admitted she was
aware of the "griping [and] whining" by other department heads over dealing
with plaintiff on purchasing issues.
Because the County articulated a legitimate, non-retaliatory reason for not
appointing plaintiff to a third term, plaintiff, in order to survive summary
judgment, needed to identify a genuine issue of material fact putting in issue
Thornton's retaliatory intent. See Kolb v. Burns, 320 N.J. Super. 467, 479 (App.
Div. 1999). Plaintiff could do that directly, by demonstrating her alleged
whistle-blowing and not Thornton's concerns and the complaints of the
department heads more likely than not motivated Thornton's decision, or
indirectly, by proving his proffered reason was a pretext for the retaliation. See
Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)
(discussing same proofs in a retaliation case brought under the LAD). Asked
time and again at her deposition what "facts or evidence" she had to suggest that
any of her alleged acts of whistle-blowing played any role in her not being
A-4521-16T3
48
reappointed, plaintiff never offered anything beyond the mere fact that she
complained.
When counsel followed up by asking about facts or evidence beyond her
complaints, she offered nothing other than the timing of those complaints and
her Rice notice. Her response to a specific question about the Ballard contract
is typical: "I pointed out to Gerry Thornton, my manager, that the Pay-to-Play
document still had not been completed, and that was in July." Asked "other than
having complained . . . about issues relating to that contract, what evidence do
you have that those complaints played any role in the decision not to reappoint
you," plaintiff replied:
It was in that July time period, and I received my Rice
Notice. And next thing I know, I'm not being
reappointed. . . . And I had no performance issues ever
documented, no one spoke to me for the months during
the pharmaceutical and the Ballard Spahr. Gerry
Thornton used to come in my office once a month and
talk to me. I hadn't seen him in months.
Asked if she was suing Thornton individually "because he said you had
performance issues, and you didn't have performance issues," plaintiff
responded that she was suing him for not reappointing her
[i]n retaliation for me pointing out to him all the illegal
[conduct] — the Ballard Spahr, and I believe in terms
of how I feel about this, it started with Jeff Lindsay.
And I pointed out to him that [the workers' comp RFP]
A-4521-16T3
49
was being done illegal. I met with [a Ballard Spahr]
attorney [who advised there would be] no retaliation.
And again, I had no follow-up from anyone, based on
my conversation. I had no management talking to me
on [the pharmacy RFP] or anything, other than Barb
Bakley-Marino, my legal advice.
I agree with the trial court judge that plaintiff offered nothing on the
motion beyond "her subjective belief that the County's proffered reasoning [was]
pretextual." Plaintiff's contention that no one ever raised performance issues
with her ignores, not discredits, Thornton's example of plaintiff's incorrect
advice in connection with the pharmacy RFP. See DeWees v. RCN Corp., 380
N.J. Super. 511, 528 (App. Div. 2005) (explaining a plaintiff defeats a motion
for summary judgment by either discrediting the employer's reasons for the
adverse action or adducing evidence that discrimination was more likely than
not a determinative cause). Plaintiff concedes the award of the pharmacy
contract was in accordance with the bidding laws, notwithstanding that the
nursing home ultimately relied on its adverse experience with the incumbent
bidder contrary to her initial advice it could not be done lawfully.
Likewise, although plaintiff contends Thornton never documented her
alleged performance issues, he acknowledges they never rose to a level requiring
corrective action, and plaintiff concedes the County did not employ performance
evaluations. She has not pointed to any evidence suggesting the complaints of
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50
the department heads were manufactured or a post hoc rationalization for her
non-reappointment. Plaintiff simply failed to adduce any direct evidence of
retaliation or "demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them 'unworthy
of credence,' and hence infer 'that the employer did not act for [the asserted]
non-discriminatory reasons.'" Ibid. (quoting Fuentes v. Perskie, 32 F.3d 759,
765 (3d Cir. 1994) (citations omitted)).
The only "inconsistency" plaintiff identified was Thornton's approval of
plaintiff attending two seminars in the months before the end of her term.
Leaving aside that neither Thornton nor Laffey remembered approving them,
Laffey testified he approved thirty a week and Thornton's approval is not
inconsistent with his testimony that he went "back and forth" as to whether he
would appoint plaintiff to a third term. Although the majority criticizes the trial
court judge for noting plaintiff's fixed term of appointment, he was not holding
her finite term of appointment provided her no protection under CEPA, as the
majority suggests. Ante at 19. The judge was, instead, pointing out the
weakness in plaintiff's reliance on the timing of her complaints and Thornton's
decision to not reappoint her, as Thornton lacked any control over the end date
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of plaintiff's term. The judge astutely observed that any event in the last months
of plaintiff's term would arguably have temporal proximity to her
reappointment, making that connection a particularly slender reed on which to
rest her claims of retaliation. See Young v. Hobart W. Grp., 385 N.J. Super. at
467. In that regard, the judge further noted plaintiff was a political appo intee
hired by a former Freeholder Director, which the judge observed would
reasonably affect plaintiff's expectation of a new term in any event.
The majority also misapprehends the import of the complaints by the
department heads about plaintiff's leadership of the Purchasing Department.
There is no basis for a trial on "whether the County employees' complaints about
plaintiff were legitimate commentary on her work performance or carping about
plaintiff's compliance with public contracting law." Ante at 17. The issue in
this CEPA action is not whether contemporaneous complaints about plaintiff's
management of the purchasing department were valid, it is whether they existed
as Thornton claimed. Plaintiff cannot discredit Thornton's reasons for not
reappointing her by showing he was wrong to heed the complaints. The "issue
is whether [retaliatory] animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent." Fuentes, 32 F.3d at 765. It
is not unlawful or unreasonable for the County to prefer a qualified purchasing
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agent who ensures it follows the public bidding laws without "it kill[ing]
everybody else."
The majority sees disputed facts as to whether Thornton read the Ballard
Spahr report before deciding not to reappoint plaintiff and, although
acknowledging her July 16 email came too late to affect the decision, finds her
earlier objections to the Ballard contract may have factored into the decision.
Yet there is no proof in this record that Thornton was aware of plaintiff's earlier
"objections." And, assuming Thornton was made aware of plaintiff's upset over
the pharmacy RFP and Lindsay's question to her about the workers' comp RFP
by reading the Ballard Spahr report before he acted on plaintiff's reappointment ,
which I do because plaintiff is entitled to all legitimate inferences from the
proofs viewed most favorably to her, it is not enough, standing alone, to put
Thornton's proffered non-retaliatory reasons in issue. The summary judgment
standard demands more than "a mere scintilla" of evidence. See Brill, 142 N.J.
at 532. Plaintiff's assertion that Thornton retaliated against her for her criticism
of his stepson Lindsay and her advice on the pharmacy RFP for the County
nursing home of which his wife was the administrator is only her speculation
without any factual support in the record. No fair minded jury, in my view,
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could find for plaintiff on her CEPA claim on the competent evidence in this
record.
The trial judge conscientiously reviewed the undisputed facts, sifted
through the evidential materials, separating inferences that could legitimately be
drawn from facts in the record from speculation without record support, and
determined the competent evidence on causal connection and pretext was so
one-sided in defendants' favor that plaintiff could not prevail as a matter of law.
See id. at 536. Because I believe the judge was correct in that analysis, and in
light of my doubts that plaintiff even established her prima facie case, I would
affirm the order dismissing the complaint.
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