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Gaglione v. New Community Corp.


July 27, 2007


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

Per curiam.


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 should have foreclosed the grant of summary judgment to defendant.

We disagree. Plaintiff's claimed factual disputes are insignificant because even if resolved in his favor, they do not help prove a necessary element of this cause of action -- that he was terminated because he filed a worker's compensation claim. Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, 442-43 (App. Div. 1988).

Judge Winard correctly noted that it was undisputed that defendant already began to conduct its investigation of plaintiff's mismanagement of the restaurant prior to knowing about his alleged work-related injuries and potential worker's compensation claim. It was also undisputed that upon being told of plaintiff's injuries, Clay chastised him, not for making a claim, but for failing to report the alleged injuries in a timely manner and lacking managerial skills.

In short, plaintiff's cause of action rests solely upon the timing of two events -- his December 29, 2003, claim for workers' compensation benefits and his February 11, 2004 termination -- and his conclusion that they are related. "Mere unsupported conclusory allegations contained in [his] complaint are insufficient to create a genuine issue of material fact in order to withstand summary judgment." Morris v. Siemens Components, 928 F. Supp. 486, 494 (D.N.J. 1996). See also Young v. Hobart W. Group, 385 N.J. Super. 448, 467 (App. Div. 2005)(holding in LAD retaliatory discharge case that where timing alone was not 'unusually suggestive,' plaintiff must set forth other evidence to establish causality).

Similarly, plaintiff's argument that his CEPA claim should not have been dismissed is unavailing. In order to prevail on such a claim, among other things, plaintiff must demonstrate that he reasonably believed his employer's conduct was violating either a law or rule or regulation promulgated pursuant to law. N.J.S.A. 34:19-3a(1). Judge Winard concluded that plaintiff failed to identify any specific law, rule or regulation that he reasonably believed defendant violated.

On appeal and at oral argument, plaintiff claims, without specificity, that defendant may have been violating the Federal tax laws. Such an ephemeral claim is inadequate. Interpreting identical language to that contained in N.J.S.A. 34:19-3a(1), our Supreme Court noted that

[W]hen a plaintiff brings an action pursuant to N.J.S.A. 34:19-3c, the trial court must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct. The trial court can and should enter judgment for a defendant when no such law or policy is forthcoming. [Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003).]

Plaintiff's other arguments regarding the dismissal of his CEPA claim are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Lastly, plaintiff's defamation claim was based upon allegations that Clay made certain defamatory statements to him at private meetings and in her memo to Heyer. Judge Winard noted that there was no evidence that any of Clay's oral statements had ever been conveyed to anyone other than plaintiff. The judge correctly found that this aspect of plaintiff's claim failed as a matter of law. R. 2:11-3(e)(1)(E).

On appeal, plaintiff contends that Clay's memo to Heyer contained four statements -- that he provided food and drink to friends without charge, that he drank alcohol on the job, that he had sexual relations at the restaurant after hours, and that he took food and beverage from the restaurant for his personal use -- were defamatory.

Judge Winard correctly determined these statements, if false, were "susceptible to defamatory meaning." However, he concluded that defendant was entitled to a qualified "special-interest privilege," and that no reasonable fact finder could find that plaintiff had demonstrated by "clear and convincing evidence" that defendant abused the privilege.

The qualified privilege is based on the public policy that it is essential that true information be given whenever it is reasonably necessary for the protection of one's own interests, the interests of third persons, or certain interests of the public. A defendant abuses the privilege if he knows the statement is false or acts in reckless disregard of its truth or falsity, if publication serves a purpose contrary to the interest sought to be promoted by the privilege, or if the statement is excessively published. [Patel v. Soriano, 369 N.J. Super. 192, 251 (App. Div.), certif. denied, 182 N.J. 141 (2004) (internal citations omitted).]

Although plaintiff contends Judge Winard considered evidence outside the record to determine the privilege existed, we disagree. Clay testified in her deposition that she forwarded the information to Heyer who was acting as defendant's intermediary in preparing a defense to plaintiff's unemployment compensation claim. Therefore, the judge correctly determined that Clay's communication was made to a person who had an "interest or duty" that corresponded to her own. Id. at 250.

Plaintiff also claims that summary judgment should not have been granted because the issue of whether defendant abused the privilege is reserved for the jury's determination. Ibid. We disagree.

Abuse of a qualified privilege must be proven by the plaintiff by clear and convincing evidence. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 566-67 (1990). In other circumstances, we have removed the issue from the jury's consideration if a plaintiff fails to carry her burden and prove abuse of the privilege. See Govito v. W. Jersey Health Sys., Inc., 332 N.J. Super. 293, 319-20 (App. Div. 2000) (holding that trial judge's grant of involuntary dismissal was appropriate because plaintiff's proofs regarding abuse of the special interest privilege were inadequate as a matter of law).

Here, plaintiff failed to demonstrate that Clay made the comments in her memo in "reckless disregard of [their] truth or falsity," or under any other circumstances that would defeat the privilege. Summary judgment, therefore, was entirely appropriate.



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