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Gaglione v. New Community Corp.

July 27, 2007

GREGORY GAGLIONE, PLAINTIFF-APPELLANT,
v.
NEW COMMUNITY CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2510-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2007

Before Judges Wefing, Yannotti and Messano.

Plaintiff Gregory Gaglione appeals from the motion judge's order granting summary judgment to his former employer, defendant New Community Corporation (NCC). Plaintiff contends that the motion judge 1) erred in dismissing his complaint alleging a violation of N.J.S.A. 34:15-39.1 by improperly applying summary judgment standards to the evidence and concluding there was no causal relationship between plaintiff's request for workers' compensation benefits and his termination; 2) erred in dismissing his complaint alleging a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by relying upon evidence not in the record and otherwise failing to properly consider plaintiff's evidence; and 3) erred in dismissing his complaint alleging defamation by finding, as a matter of law, defendant was entitled to a qualified privilege.

We have carefully considered these contentions in light of the record and appropriate legal standards. We affirm substantially for the reasons expressed in Judge Theodore A. Winard's thoughtful and comprehensive written decision that accompanied his September 20, 2006 order. R. 2:11-3(e)(1)(A). We add only these brief comments.

Plaintiff was hired as executive chef for The Priory, a for-profit restaurant owned by NCC, a non-profit community development corporation, and in early 2003 became the restaurant's general manager. Shortly thereafter plaintiff complained to Kathy Spivey, his supervisor and NCC's Chief of Staff, and Sherilene Johnson, a member of NCC's accounting department, about The Priory's monthly profit and loss statement. In short, plaintiff believed the restaurant was being charged for expenses it never incurred, thus reducing its bottom-line profit.

Spivey explained to plaintiff that defendant's policy was to charge all common expenses, such as computer costs, trash removal, etc., to all of its subsidiary entities on an estimated pro-rata basis. She agreed to adjust The Priory's pro-rata share for some of these charged expenses. Plaintiff thanked her and the subject was never discussed again.

Some nine months later, in early December, 2003, plaintiff slipped and fell five or six times on ice in the restaurant's parking lot. Plaintiff claimed to have suffered some injuries, although when he told his assistant, Anthony Kemp, that he needed to get medical treatment, Kemp called him "a liar." Plaintiff did not tell NCC's director of human resources, Jackie Clay, about the falls and his need for medical treatment until December 29, 2003.

When she found out, Clay was upset that plaintiff had not reported the incidents sooner and questioned his management skills. She immediately called defendant's workers' compensation health care provider and plaintiff began medical treatment for his injuries. Ultimately, plaintiff missed several weeks of work, made a claim for workers' compensation benefits, and was paid those benefits.

Meanwhile, in early December 2003, NCC's counsel, Daniel Williamson, began a review of numerous contracts plaintiff had executed for events to be held at The Priory. Williamson discovered several irregularities which spurred a further investigation of plaintiff's management of the restaurant. On February 11, 2004, Clay and Williamson met with plaintiff, disclosed the results of their investigation, which included several allegations of misconduct, and terminated his employment with defendant.

Plaintiff apparently applied for unemployment compensation benefits. In a March 15, 2004, memo, Clay summarized plaintiff's various performance problems for Leslie Heyer, an employee of TALX, a company that handled defendant's unemployment claims. Plaintiff contends the contents of that memo defamed him.

In reviewing a grant of summary judgment, we employ the same standard used by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2(c). We assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995). We decide first whether there was a genuine issue of material fact; if there is not, we then decide whether the motion judge's application of the law was correct. Atlantic Mutual Ins. Co., supra, 387 N.J. Super. at 230-31.

Plaintiff alleges that he was terminated in retaliation for making a claim for workers' compensation benefits. N.J.S.A. 34:15-39.1. He contends Judge Winard failed to consider evidence of disputed facts that support his claim and which ...


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