July 3, 2007
KYLE GRAY, PLAINTIFF-APPELLANT,
CITY OF CAMDEN, BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, L-476-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2007
Before Judges Payne and Lihotz.
Plaintiff, Kyle Gray, a non-tenured employee of defendant, the City of Camden, Board of Education (Board), appeals from an order of summary judgment entered against him dismissing his suit alleging violation by defendant of the Conscientious Employee Protection Act, N.J.S.A. 39:19-1 to -14. We affirm.
The following are the facts of the matter. Plaintiff was employed by the Board in annually renewable positions from 1991 through 2004. Throughout the period, he was a member of and represented by the Camden Education Association. Since 1998, plaintiff had been assigned to the Hatch Middle School as an Instructional Assistant, where he also served as head coach of the boys basketball team. However, on October 21, 2002, plaintiff was informed by Human Resources Department Director, Cheryl Harper, that he was being reassigned, effective November 1, 2002, to the Early Childhood Development Center (ECDC), where he would serve as a mobile van driver. Plaintiff was very distressed by the assignment to work with three-year-old children, with whom he had no prior experience, and by the consequent severance of his ties to the middle-school boys whom he had been coaching. Although plaintiff contacted a union representative at the time, he accepted the reassignment without filing a grievance.
According to plaintiff, the stress of the reassignment resulted in a flare-up of a chronic medical condition. As a consequence, he was absent and on sick leave from December 17, 2002 through February 14, 2003. The leave of absence due to illness was authorized by the Board in letters dated March 26, 2003, covering the period from December 17 through December 31, 2002, and May 22, 2003, covering the period from January 2 through February 14, 2003. Plaintiff returned to work on February 18, 2003. Plaintiff was properly paid all but two checks in compensation for his approved sick time. Upon recognizing that two checks remained outstanding, plaintiff made inquiry to the Human Resources Department, and was advised that the checks had been cashed. Plaintiff thereupon allegedly advised Human Resources, in April or early May 2003, that he planned to report the theft to the City of Camden police.
In the meantime, the records of plaintiff's attendance at work had disclosed considerable irregularities. As an instructional assistant, plaintiff was required to clock the time when he arrived and left work, and the beginning and end of his lunch break, by use of his personal electronic swipe card and an individualized code that he punched into a key pad. Records maintained by the ECDC reflected numerous instances between February 23 and May 21, 2003 when someone else's swipe card was utilized to record plaintiff's time, suggesting that he was absent on many occasions while seeking to appear present. Records indicate that, for the week commencing on May 19, 2003, he was reported sick on the 19th, he was "swiped-in" by another on the 20th and 21st, and he was reported sick on the 22nd and 23rd. The following Monday, May 26th, was a holiday, but plaintiff was reported sick on the 27th, 28th and 29th. He was reported absent without leave on May 30, and never again reported to work in any fashion. Nonetheless, by resolution of the Board at its meeting of June 23, 2003, plaintiff's employment contract was renewed for the following year. Records indicate that plaintiff's health benefits coverage was continued until September 1, 2004, despite his absence from work for that entire year. Plaintiff contests the renewal of his contract for the 2003-04 school term, but does not refute the Board's resolution. In his deposition, plaintiff admitted to the continuation of his benefits to September 2004. Prior to that date, on June 21, 2004, the Board voted not to renew plaintiff's contract further.
Plaintiff nonetheless claims that his employment was terminated on May 22, 2003. That position is based upon a "Payroll Change Notice," signed by Human Resources Director, Cheryl Harper, on June 5, 2003 and by Business Administrator, Leon Freeman, on June 6, 2003. The notice stated that, effective May 22, 2003, plaintiff was to be "remov[ed] from payroll" because he "ha[d] exhausted all sick time for the school year and has been out from his work site since 5/22/03." The notice additionally said that Human Resources had not received any documentation concerning the absences. Records confirm the full exhaustion of plaintiff's sick time prior to the notice. Plaintiff has not contested the right of the Board to dock his pay as the result of his consecutive, unauthorized absences, commencing May 22. Additionally, plaintiff has offered no explanation for the fact that his presence at work on two days that week appears to have been electronically recorded by another employee, and he has not contested the accuracy of the calculation of the sick days available to him, of their exhaustion, or the recordation of sick days in the period commencing May 22. Plaintiff has also offered no evidence that would suggest that Harper's and Freeman's signatures were not genuine.
It is plaintiff's position that, although records reflect his absence on May 22, he received the payroll change notice through interoffice mail on that date, and at the end of the work day, he went to Human Resources and confirmed with an unidentified employee that his employment had been terminated. Plaintiff claims additionally that the signatures on the notice were post-dated, thereby challenging the dates affixed to the document by Harper and Freeman and those employees' denial of any post-dating. However, plaintiff's supporting evidence is wholly lacking. Plaintiff did not file a grievance from or otherwise seek to contest his alleged termination.
Plaintiff appears to have reported the stolen checks to the police in late August 2003. Their subsequent investigation identified the thief as Danielle Isler, a/k/a Danielle Burnett, a person employed in the Human Resources Department as a Clerk III from January 1, 1993 until September 30, 2004. A forty-two count indictment was returned against Isler in October 2005 that included one count of second-degree official misconduct, one count of third-degree theft by deception, and forty counts of fourth-degree forgery. A subsequent forensic investigation on behalf of the Board by Deloitte Financial Advisory Services disclosed that Isler had stolen at least $64,452.45. The Deloitte investigation also disclosed that, in some instances, Isler had utilized payroll change notices to initiate the generation of payroll checks, and she then would cash those checks without authorization.
Isler's initials appear on the payroll change notice applicable to plaintiff. However, that notice required the cessation of payroll payments, not their further generation -- the practice from which Isler benefited. No one has suggested that all of the functions performed by Isler during her employment by the Board were illegal. It is additionally significant that attendance records are generated by the reporting schools and not by employees of the Human Resources Department.
Plaintiff has offered no evidence that anyone was aware of Isler's defalcations at the time that his checks were stolen or when their loss was reported; that plaintiff was aware of or reported any thefts other than his own; that he believed at the time that Isler or any other Board employee was the thief; or that any conspiracy with Isler existed among other Board employees.
Examination of the facts that we have set forth led the motion judge to conclude that summary judgment in the Board's favor was warranted under the standards established by Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Having reviewed the evidence under the same standard, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), we agree.
To successfully set forth a CEPA violation, plaintiff is required to present prima facie proof:
(1) that he . . . reasonably believed that his . . . employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he . . . performed whistle-blowing activity described in N.J.S.A. 34:19-3a, c(1) or c(2); (3) an adverse employment action was taken against him . . .; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. [Mosley v. Femina Fashions, Inc. 356 N.J. Super. 118, 127 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003).]
Our review of the evidence suggests that plaintiff met neither the first nor second requirement in this case. Although, in hindsight, it has become apparent that Isler was the culprit, that Isler was an employee of the Board, and that her illegal activities victimized approximately twenty employees and resulted in the theft of an amount greater than $60,000, those facts were not available to plaintiff on May 22, 2003, the date that he claims the retaliatory action occurred. Indeed, at that time, although plaintiff knew his two checks had been misappropriated, the identity of the thief and her relationship to the Board was not known to him and remained unknown until August 2003. The following relevant exchange occurred during the course of plaintiff's deposition:
Q: Did there come a time when you spoke to someone at Camden City Police Department?
A: In August, just about the time I sent the letter to the President of the Board. After I got confirmation of the theft from the Commerce Bank employee, I went and drawed fraud affidavits as I was instructed by the employee from Commerce.
I drew the fraud affidavits of PNC Bank, and then at the PNC Bank, the bank manager instructed me that I should take that information also to the Camden City Police Department, which I did.
The affidavits are dated August 25, 2003. The letter to the Board President, to which plaintiff made reference in his deposition, was undated, but allegedly sent in August. Even then, plaintiff was unaware of the identity of the perpetrator or her employment status. In his letter, plaintiff recounted that he had been informed by a Commerce Bank employee that the checks had been found, that they were deposited into the account of a Danielle Burnett, and that he had been advised to execute fraud affidavits, which he had promptly done. He then speculated:
What a coincidence the person who handles my pay and the person who stole my pay have the same first names. Hmmm?
Thus, when plaintiff allegedly stated to a Board employee, in April or early May 2003, that he was reporting the theft to the police, plaintiff had no factual basis to believe that "his employer's conduct" had violated the law, or that his threat to contact the police constituted "whistle-blowing activity" of any statutorily-recognized sort. See N.J.S.A. 34:19-3. Rather, plaintiff was complaining of a seemingly isolated and private loss with no then-known public policy implications.*fn1 We concur with the Board's position that complaints of a private harm, such as plaintiff's, do not trigger CEPA's protections. Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 443-46 (2004); Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998).
Further, we, like the motion judge, are unable to discern any causal connection between plaintiff's allegedly protected activity and the adverse employment action that he claimed was taken against him -- the fourth statutory requirement. As plaintiff frames the question: "At issue in this case, should be the factual question of when Plaintiff received the notice." If the notice were received on or after June 6, 2003, it was amply supported by the record of plaintiff's unexplained absences from work. It appears that plaintiff concedes as much, since he makes no argument regarding retaliation that could be premised upon receipt of the notice on that later date.
The key to plaintiff's argument is his position that the notice was received on May 22, because only then could the record of absences from May 22 through the remainder of the month be deemed fictitious, thereby marking the notice as retaliatory, not justified. However, plaintiff has offered nothing other than his bare assertion of receipt on the crucial May date to demonstrate that essential point. But a self-serving assertion, alone, will not create a question of material fact sufficient to defeat a summary judgment motion. Cf. Fargas v. Gorham, 276 N.J. Super. 135, 140-41 (Law Div. 1994). Especially not when, as here, plaintiff's assertion as to the date of receipt is manifestly contrary to evidence of the dates of execution set forth in the document itself -- dates more than two weeks after receipt purportedly occurred. Nor does speculation regarding post-dating that is unaccompanied by any confirmatory proof suffice to preserve defendant's cause of action. Merchs. Express Money Order Co. v. Sun National Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005); Triffin v. American Intern. Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004). There simply is no logical explanation for the record evidence, but that plaintiff's position is groundless. In the absence of evidence of retaliatory action, plaintiff's claim was properly dismissed upon the Board's summary judgment motion. Mosley, supra, 356 N.J. Super. at 127-28.