November 8, 2007
CHARLES STEPHENS, PLAINTIFF-APPELLANT,
LOWE'S COMPANY, INC., AND KEN ZROWKA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1843-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Weissbard, S. L. Reisner and Gilroy.
Plaintiff Charles Stephens appeals from the October 16, 2006, order granting summary judgment to defendants, Lowe's Company, Inc. (Lowe's), and Ken Zrowka, Lowe's Regional Human Resources Manager, dismissing plaintiff's single-count complaint, alleging wrongful discharge pursuant to the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.
Plaintiff was hired by Lowe's in 2002 as the manager of its Mt. Holly store. Prior to July 2003, plaintiff became aware that the store was experiencing an inventory loss of carpet padding material. Plaintiff asked members of the Loss Prevention Department to investigate the issue. The Loss Prevention Department determined that the shortage was caused by internal theft by Steven Mercado, the store's Installed Sales Coordinator. Mercado was terminated from employment on August 12, 2003. On or about December 29, 2003, Mercado filed a complaint against Lowe's and its District Loss Prevention Manager, alleging among other matters, that he was wrongfully terminated from employment because of his age, in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.
On April 2, 2004, Lowe's corporate office received an internal complaint from one of its employees, John Waldruff, expressing frustration with his demotion and complaining about plaintiff's criticism of him spending too much time in the office of Anne Siwula, the Human Resources Manager of the Mt. Holly store. The District Human Resources Manager, Sherry Shell, conducted an investigation of Waldruff's complaint, and in doing so spoke with Siwula. During her interview with Shell, Siwula explained her work-related relationship with Waldruff and advised Shell that not only had plaintiff made inappropriate remarks to her about Waldruff, but that he had also made other sexually inappropriate remarks to her. As a result of the interview, Shell asked Siwula to provide a written statement regarding plaintiff's conduct. Siwula complied and prepared an eight-page, handwritten statement, setting forth her allegations against plaintiff.
In the handwritten statement, Siwula stated that on one occasion, plaintiff asked if she and her boyfriend "have sex together." On another occasion, when plaintiff confronted Siwula about her relationship with Waldruff, after Siwula told plaintiff that she and Waldruff were merely friends and that she was counseling him on career-related issues, plaintiff stated, "[b]esides Annie[,] I thought that the only person who is supposed to have sex with you in this store was me[.] No . . . just kidding." On a third occasion when plaintiff and Siwula discussed an upcoming corporate meeting that was to take place in Atlantic City, Siwula mentioned that she would like to go, and plaintiff responded, "he would love to take me but then we would have to sleep in the same bed and that he did not think that his wife or [Siwula's boyfriend] would like it." On a fourth occasion, when plaintiff and Siwula were discussing Lowe's No-Fraternization Policy, which Siwula told plaintiff she supported, plaintiff said, "Never say never. You might meet someone at this store and fall in love with [him] and then go back to a hotel room and have the most passionate night of your life[.]" Siwula's statement also contained several other sexually inappropriate remarks that she asserted were made by plaintiff.
When confronted by Shell concerning Siwula's allegations, plaintiff sent Shell an e-mail on April 7, 2004, stating that he had no idea what Siwula was talking about, but that he would be "circumspect" concerning what he might discuss with her in the future. In closing the e-mail, plaintiff stated:
I want to make clear that at no time have I ever made a pass at Ms. Siwula, nor have I ever articulated any sexual innuendoes about her or around her. I have never asked her out or made any queries about her personal life. I have had a professional relationship with her since she arrived at our store. Nothing more. Nothing less.
After receiving conflicting statements from Siwula and plaintiff, Shell, Zrowka, and Jon Waddingham,*fn1 conducted an interview with plaintiff. During the interview, plaintiff not only denied Siwula's allegations, but also denied having spoken with her concerning his personal life. Following plaintiff's interview, Zrowka and Shell then interviewed Siwula concerning the contents of her written statement. Siwula advised Shell and Zrowka that her statement was accurate.
In determining which party's version of events was more credible, plaintiff's or Siwula's, Zrowka relied heavily on the demeanor of the parties. As to plaintiff, Zrowka stated that:
During the interview, [plaintiff] was very defensive; physically agitated; very short; very trite with his answers. He was answering questions before the [questions] were completed; giving answers such as "never" and "no." When asked questions about conversations he may have had which related to things such as his work life, as well as personal life, his overall demeanor during that interview at many times appeared angered; appeared physically upset; appeared to be surprised at some of the information presented to him.
Immediately following the interview, we received notification he had phoned one of his former co-workers asking to cover for him and referencing the New Year's Eve dinner in which statements were allegedly made regarding [a female co-employee's] behavior.
That behavior was very strongly considered prior to making a decision to terminate [plaintiff].
He contradicted himself in the interview so there was no need to go back and validate some of the questions.
When asked during his deposition of an example where plaintiff had contradicted himself during the interview, Zrowka stated:
[It was our] conversation [with plaintiff concerning the New Year Eve's party, knowing Siwula's] account of what happened; [and knowing] Mr. Everhart's account of what happened . . . . They were very similar in content; very similar in detail versus [plaintiff's] very pronounced denial that anything of any sort, any inappropriate statements at all were ever made during that dinner party. Their accounts were very detailed. As I recall Mr. Everhart was a little reluctant to provide information that would potentially be damaging to [plaintiff]. When asked the questions, he was cooperative and disclosed his knowledge as best as he could recall, but as I remember, it was with little hesitation and that he didn't, you know, want to be put in a difficult situation where he felt he was talking about something that was potentially going to be harmful to [plaintiff].
During the interview with Siwula, Zrowka intentionally misquoted some statements made by Siwula earlier in the interview, and after each, Siwula corrected him, repeating "exactly what she had told me before." Zrowka found her ability to recall details "extraordinary." Specifically, Zrowka stated:
Her knowledge of [plaintiff's] personal life; and his children; and his family; and his home; and education; and his personal interests, all of which [plaintiff] denied ever having disclosed . . . to anyone that he worked with. It is not typical that somebody would provide the level of detail about an individual's personal life that Ms. Siwula did and have [plaintiff] say, "I've never told anyone anything." Her responses verbally, as well as her written statements, very strongly supported the fact that [plaintiff] was withholding information from us.
When asked whether plaintiff was provided a fair opportunity during the interview to present his version of events, Zrowka stated:
We gave him an opportunity to share his side of the story, but he repeatedly just denied everything that we talked to him about and offered nothing in that interview that would help us to say that he is more believable than what we've already been told up to this point.
After determining that Siwula's recollection of events was more credible than plaintiff's, defendants terminated plaintiff's employment for: 1) violating the employer's No-Harassment Policy; and 2) disregarding defendants' instructions not to contact witnesses concerning defendants' investigation into Siwula's sexual harassment complaint.
On June 30, 2004, plaintiff filed his complaint asserting that he had been terminated from employment in violation of CEPA, contending that he had been fired from employment because he had complained, objected to, and refused to "participate in activities, policies and practices of [Lowe's] which [p]laintiff reasonably believed to be a violation of law, rule, or regulations . . . ." Plaintiff alleged that Lowe's had wrongfully terminated Mercado; that defendants had asked plaintiff on numerous occasions and under threat of retaliation to provide a false statement concerning Mercado's termination from employment; and defendants' activities in defending against Mercado's age discrimination claim constituted obstruction of justice and interference with the judicial process.
Following the close of discovery, defendants moved for summary judgment arguing that plaintiff was not able to prove a prima facie claim under CEPA, and in the alternative, even if plaintiff was able to prove a prima facie claim, plaintiff was not able to present sufficient evidence showing that defendants' reason for terminating plaintiff's employment was pretextual, that is, it was false and plaintiff was terminated from employment for retaliatory reasons. On October 16, 2006, Judge Marc Baldwin rendered an oral decision determining that, although plaintiff had proven a prima facie claim under CEPA, he did not present sufficient evidence for a reasonable jury to find that Lowe's proffered reason for terminating his employment was pretextual and that retaliation for opposing Mercado's termination was the determining factor.
Look, . . . what I try to do . . . is to not let speculation defeat the Brill . . . standard, and I think plaintiff just has nothing more than speculation . . . not to defeat but to [undermine defendants'] claim that it's pretextual. I don't see anything other than mere speculation on that.
. . . [T]here is nothing in this case to indicate that defendant[s] did anything affirmative to have the Siwula complaint against Stephens brought or [provide] any counseling [to] Siwula or help Siwula in any way make her claim against or continue her claim against Stephens, number one, and number two, there is enough there to indicate that . . . they have a subjective reasonable reason, good faith reason to do what they did, and to argue that the fact . . . she was mad at Stephens because Stephens reprimanded her is one factor in the analysis, but they also have the fact that she knew things about Stephens' private life that Stephens denied telling her. They also had the fact that Stephens refused to follow their instructions on what to do with regard . . . [to] telling anybody about this complaint, and they weigh[ed] those things, and the issue for the jury is not whether Stephens is telling the truth or Siwula is telling the truth. It's whether they made a subjective good faith assessment of the allegations and . . . had a non-pretextual reason for firing him. . . . .
And I don't . . . think there is enough in the case even under an expanded reading of Brill to say that there is a fact issue on the pretextuality [issue].
A confirming order was entered the same day.
On appeal, plaintiff argues:
PLAINTIFF HAS MADE OUT A PRIMA FACIE CAUSE OF ACTION UNDER THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT, N.J.S.A. 34:19-1, ET. SEQ.
THE TRIAL COURT DID NOT APPLY THE PROPER AND REQUIRED LEGAL STANDARDS WHEN IT GRANTED DEFENDANTS' SUMMARY JUDGMENT MOTION, IN THAT: THE COURT BASED ITS RULING UTILIZING THE INCORRECT LEGAL STANDARD THAT DEFENDANTS WERE ONLY REQUIRED TO HAVE A SUBJECTIVELY REASONABLE BELIEF THAT PLAINTIFF VIOLATED LOWE'S GENDER POLICY AS A BASIS FOR TERMINATING PLAINTIFF WITHOUT VIOLATING CEPA; AND, THE COURT ACTED IMPROPERLY BY ASSUMING THE ROLE OF THE FINDER OF FACT AND NOT PERMITTING A JURY TO DECIDE WHETHER OR NOT PLAINTIFF MET HIS BURDEN OF PROOF CONCERNING HIS ALLEGATION THAT HIS TERMINATION WAS BASED ON A FALSE PRETEXT, DESPITE THE EXISTENCE OF NUMEROUS, GENUINE ISSUES OF MATERIAL FACT.
PLAINTIFF HAS DEMONSTRATED BY THE EVIDENCE, BOTH DIRECT AND CIRCUMSTANTIAL, THAT IT IS REASONABLE FOR A FACT FINDER TO DISBELIEVE THE DEFENDANTS' ARTICULATED REASONS OR, THAT THE REASONS ALLEGED BY PLAINTIFF WERE MORE LIKELY THAN NOT A MOTIVATING OR DETERMINATIVE CAUSE OF THE DEFENDANTS' ACTION.
A. ANNE SIWULA IS NOT CREDIBLE BECAUSE SHE HAD A STRONG MOTIVE TO HURT PLAINTIFF, AS SHE WAS VERY DISSATISFIED WITH HER RAISE AND PAY STRUCTURE, SHE WAS DISGRUNTLED BECAUSE SHE HAD BEEN REPEATEDLY DISCIPLINED BY PLAINTIFF FOR FAILING TO WORK THE REQUIRED CORPORATE SCHEDULE, ARRIVING LATE FOR MEETINGS, AND MEETING ANOTHER EMPLOYEE BEHIND CLOSED DOORS, AND BECAUSE PLAINTIFF HAD RECENTLY DEMOTED HER FRIEND AND FELLOW EMPLOYEE, JOHN WALDRUFF.
B. SIWULA IS NOT CREDIBLE BECAUSE SHE NEVER COMPLAINED AND NEVER TOLD HER BOYFRIEND OR ANY FRIEN[D] OR FAMILY MEMBER ABOUT THE ALLEGED SEXUAL HARASSMENT, DESPITE BEING THE STORE'S HUMAN RESOURCES MANAGER.
C. SIWULA IS NOT CREDIBLE BECAUSE SHE RECEIVED COMPENSATION FROM DEFENDANTS, AFTER SHE WAS TERMINATED BY LOWE'S, IN CONNECTION WITH THE SETTLEMENT OF HER CLAIM AGAINST LOWE'S ALLEGING WRONGFUL TERMINATION, SEXUAL HARASSMENT, AND DEFAMATION, AND AS PART OF THE SETTLEMENT, AGREED TO TESTIFY AGAINST PLAINTIFF.
D. SIWULA IS NOT CREDIBLE BECAUSE SHE HAS A HISTORY OF FILING SEXUAL HARASSMENT COMPLAINTS AGAINST HER EMPLOYER, OF WHICH THE DEFENDANTS HAD FULL KNOWLEDGE.
E. SIWULA IS NOT CREDIBLE BECAUSE SHE ATTEMPTED TO "FRAME" STEPHENS, BY TAPING THEIR TELEPHONE CONVERSATION.
F. THERE EXIST MULTIPLE, GENUINE, AND SIGNIFICANT ISSUES OF MATERIAL FACT IN DISPUTE.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
"CEPA is remedial social legislation." D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119 (2007). The purposes of CEPA are twofold: "'to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.'" Yurick v. State, 184 N.J. 70, 77 (2005) (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). "CEPA prohibits an employer from taking adverse employment action against any 'employee' who exposes an employer's criminal, fraudulent, or corrupt activities." D'Annunzio, supra, 192 N.J. at 120 (quoting N.J.S.A. 34:19-3). Thus, not only are workers protected from retaliation, but employers are also deterred from "activities that are illegal, fraudulent, or otherwise contrary to a clear mandate of public policy concerning the safety, health, and welfare of the public." Ibid.
N.J.S.A. 34:19-3 prohibits retaliatory action by an employer against an employee because the employee: "[(a)] Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes 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 "[(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 . . . ; (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."
A plaintiff must show four elements in order to prove a successful pretext claim under subsections (a) or (c) of CEPA:
(1) that he or she reasonably believed that his or her employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he or she 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 or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.
[Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999).]
The framework for proving a CEPA claim follows the framework for proving a claim under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, Abbamont, supra, 138 N.J. at 408. Accordingly, once a plaintiff establishes a prima facie claim under CEPA, the burden shifts to the defendant employer to show a legitimate, non-retaliatory reason for the adverse employment action. Klein v. Univ. of Med. & Dentistry, 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005). Because "[t]he plaintiff retains the ultimate burden of proving that the retaliatory motive played a determinative role in the adverse [employment] decision," Donofry v. Antotote Sys., Inc., 350 N.J. Super. 276, 292 (App. Div. 2001), "[i]f such reasons are proffered, plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Klein, supra, 377 N.J. Super. at 39. On this last prong of the test:
[P]laintiff need not provide direct evidence that [plaintiff's] employer acted for discriminatory reasons in order to survive summary judgment. "[Plaintiff] need only point to sufficient evidence to support an inference that the employer did not act for its proffered non-discriminatory reasons." In other words, the plaintiff, as the non-moving 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.'"
[Kolb, supra, 320 N.J. Super. at 478 (internal citations omitted).]
Here, Judge Baldwin, after giving plaintiff all favorable inferences on the motion, determined that plaintiff had established a prima facie CEPA claim. However, the judge determined that plaintiff failed to present sufficient, credible evidence to raise a genuine issue of material fact that defendant's termination of his employment for violation of Lowe's gender policy was pretextual, and that retaliation for his opposition to Mercado's termination was the real determining factor. We agree.
Plaintiff did not present evidence from which a reasonable factfinder could determine that defendants did not act for the non-discriminatory reasons proffered. Ibid. Plaintiff failed to present evidence from which a jury could conclude that defendants did not act in good faith in accepting Siwula's allegations of sexual harassment by plaintiff. As stated by Judge Baldwin, plaintiff was required to present facts, not speculations.
We affirm for the reasons expressed by Judge Baldwin in his oral decision of October 16, 2006. R. 2:11-3(1)(A).