December 31, 2007
DAVID LAU, PLAINTIFF-APPELLANT,
PLYMOUTH ENVIRONMENTAL, INC., DEFENDANT-RESPONDENT, AND
EASTERN INSULATION, INC., DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, L-0807-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Weissbard and Baxter.
Plaintiff David Lau appeals from an order of summary judgment dismissing his complaint that alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:9-1 to -8, against defendant Plymouth Environmental, Inc. We affirm.
We take the following facts from the record presented to the motion judge, which included deposition testimony.
In 1998, Archway, a subcontractor of Eastern Insulation, Inc. hired plaintiff as an asbestos removal supervisor. Archway stationed plaintiff at a facility known as Coastal Eagle Point Oil Co. (Coastal). Eastern had entered into a contract with Coastal to perform insulation and asbestos removal. In September 2002, Archway sold its subcontract to defendant.*fn1
Thereafter, Eastern entered into a new subcontract with defendant. Plaintiff retained the same position and performed the same work as he had with Archway; however, plaintiff became defendant's employee as a result of the transactions. Plaintiff did not enter into an employment contract with defendant and served as an at-will employee. In January 2004, Sunoco, Inc. purchased Coastal. At the now Sunoco-owned location, plaintiff continued his work removing insulation and asbestos.
Plaintiff testified that on March 7, 2004, Matt Wilson, Eastern's onsite supervisor, asked plaintiff and his two-man crew to perform a job on overtime. The job involved stripping insulation from a large pipe on the roof of a building. Plaintiff testified that he told Wilson that his crew could not perform the job for the following reasons: 1) he did not have enough manpower; 2) there was a large amount of asbestos; 3) the pipe temperature was too high; and 4) the pipe passed through the roof of a building. Defendant asserts that plaintiff did not inform Wilson that he believed that there were safety issues concerning this job. On that subject, plaintiff's deposition contained the following colloquy:
Q: And what did he ask you to do during that first meeting?
A: Can you do that job - - after hours.
Q: And what did you tell him?
Q: Did you explain why you couldn't do it?
Q: What did you say?
A: I don't have the manpower, it's too much asbestos, it's too high, it's too hot and it's going through the roof.
Q: And how did he respond?
A: He wasn't happy. He gave me the (making noise) - - I'm sorry.
Q: [D]id you tell him about the equipment that you would need for that job? You said you would need air regulators, you would need monitors, you'd need some things in order to get that job done. Scaffold was another one. Did you tell him about those things?
A: The main thing I told him was the manpower and that me and [my crew] were not able to do it.
Q: Okay. So you didn't mention safety concerns at that first meeting?
A: Just the fact that it was going through the roof.
Later, plaintiff stated that "[i]f we had enough men, we could do it safely." Plaintiff further testified that his crew was not up to the physical nature of the project due to his crew's health problems. Additionally, plaintiff testified that he told Wilson that the job required an air monitor. Defendant maintains that plaintiff did not inform Wilson that he could not perform the job due to a lack of air monitors. Defendant also notes that plaintiff stated he could not fully commit to the job because he had commitments to a second, part-time job. Plaintiff claims that Wilson asked him to cut corners on previous jobs at the Sunoco site and that he believed Wilson was trying to keep costs at a minimum.
Approximately one week after Wilson's first request, Wilson again asked plaintiff to perform the aforementioned job. Plaintiff declined once again, stating: "[W]e don't have the manpower. We're swamped, we're short two guys. I gave him the same answer as the first time." Plaintiff did not inform any of his Plymouth supervisor's about Wilson's requests.
Wilson informed Mike Duffy, plaintiff's direct supervisor at Plymouth, that plaintiff would not perform the job and asked that Duffy speak with plaintiff. On March 24, 2004, Duffy called plaintiff while plaintiff was at work to discuss why he did not perform the job. Plaintiff stated that he could not hear much of the conversation because he was at a construction site wearing earplugs. Nonetheless, plaintiff testified that he "might have said we need air monitor[s] here before anybody does anything" and that Duffy asked him "why [he] was taking the high road on this particular job." Plaintiff claims to have interpreted the latter comment as an indication by Duffy to take shortcuts on the job.
In addition, plaintiff testified that he told Duffy he could not do the job and that someone from Plymouth should evaluate the proposed job. Ultimately, Plymouth did send an employee, Robert Marino, to look at the job. Plaintiff also made the following allegations: Wilson wanted plaintiff to perform a job that could have contaminated a building; Duffy did not adequately investigate the situation, failed to speak with plaintiff's crew and did not allow plaintiff to speak with James Kelly, President and owner of Plymouth; and Duffy took the side of Wilson because Duffy and Wilson knew and worked with each other.
Duffy testified that during their conversation, plaintiff began complaining about his salary and benefits. Duffy stated that plaintiff then expressed his safety concerns. Specifically, Duffy testified as follows:
[A]t that point he brought up "I don't have enough negative air machines." I said "we'll send you some." I said "Dave [plaintiff], I was just there a week ago, we talked about this."
He said it's "high up in the air," it's an "outside project" and I said, "Dave [plaintiff], you've known about this for a week." "How come you didn't call me and if it's a safety issue then we'll send somebody, we'll send somebody else, if it's something your crew can't do, then we'll send somebody else?"
Duffy stated that after briefly discussing air monitoring, plaintiff allegedly hung up the phone. Duffy claims to have paged plaintiff multiple times before plaintiff called back. When plaintiff did respond to Duffy's page, Duffy was unavailable and plaintiff told Duffy's secretary "tell him [Duffy] not to call me back, I'm busy." Thereafter, Duffy sent Marino to the job site.
When Marino visited the job site he met Wilson and discussed the logistics of the project. Marino testified that during his meeting with Wilson, he informed Wilson of the type of scaffolding necessary to complete the job and that air monitoring was required. Marino testified that he spoke with Kelly regarding the supplies he requested and kept him informed as to the job progress. At the time Marino visited the job site, plaintiff was working maintenance and testified that Wilson gave him the impression that Marino was replacing plaintiff or that plaintiff would be fired.
On Friday, March 26, 2004, two days after the initial conversation between plaintiff and Duffy, Duffy went to the refinery where he informed plaintiff that he was being transferred to another crew. Duffy testified that he did not demote plaintiff and plaintiff would receive the same salary at his new location; however, he would report to a different supervisor. Duffy told plaintiff to call Tom Roch, another Plymouth supervisor, to receive instructions for a new assignment. During their discussion plaintiff said "I can't believe you're firing me . . . how could you do this?" Duffy replied that "you're not being fired, you're being transferred." Duffy stated that "[plaintiff] was being reassigned for reasons of lack of communication with the office and because of [in]subordination." Duffy further explained that plaintiff should have expressed his concerns about the project directly to Plymouth.
After their conversation, plaintiff reported to the head of safety to discuss his concerns about his former project.
Plaintiff did not tell Wilson or Duffy that he planned to speak with the safety coordinators. Plaintiff called Roch that evening or the following Monday and learned that his new job would not begin until the following Wednesday. On the following Wednesday, plaintiff called the Plymouth office and spoke with Duffy. Again, plaintiff voiced his concern that he was being fired and plaintiff recalled that Duffy stated "you're not being fired, you're being transferred, and you better talk to Jim Kelly." Duffy then transferred plaintiff's call to Kelly.
Kelly testified that he told plaintiff "[y]ou are being assigned to Tom Roch's crew and you need to report to work." Kelly stated that plaintiff replied that he did not know if he would show up and Kelly again told him to report on Wednesday. Plaintiff then stated that he would see to it that Plymouth lost its licenses. Kelly then told plaintiff not to report to work on Wednesday. Plaintiff asked if Kelly was firing him and Kelly said "no." Kelly told plaintiff "to call it whatever you want to call it, but don't bother reporting to work on Wednesday." Kelly contends that his statements did not mean that he terminated plaintiff; however, "it was pretty clear at the end of the conversation that we had on the phone that he [plaintiff] was not working for Plymouth." Kelly stated that he knew that plaintiff did not show up for work on Wednesday because Kelly did not pay him.
Furthermore, defendant alleges that on two other occasions prior to the events of March 2004, defendant questioned plaintiff's job performance. First, Duffy stated that Kelly asked plaintiff to post a sign with Plymouth's license number on one of Sunoco's buildings. Duffy claims that plaintiff never performed the task. Second, defendant asserts that just prior to the March 2004 incident, Duffy received a phone call from Wilson, in which Wilson stated that a foreman asked plaintiff to look at a job and plaintiff refused. Plaintiff maintains that he could not respond to the request because he was "involved in a different job for another maintenance team." Duffy stated that he told plaintiff that he must respond to the foreman's request and that he could have left his workers and looked at the requested job.
On May 12, 2004, plaintiff filed his complaint against defendant and Eastern alleging violations of CEPA. Eastern was granted summary judgment on August 18, 2006, and plaintiff has not appealed that order.
On October 5, 2006, defendant moved for summary judgment, asserting that plaintiff failed to establish a prima facie case under CEPA. The return date of the motion was delayed in order to depose Kelly and Marino. On December 15, 2006, after hearing oral argument, the court granted defendant's motion for summary judgment, dismissing plaintiff's complaint with prejudice.
On appeal plaintiff presents the following arguments:
THE LOWER COURT ERRED IN RULING THAT PLAINTIFF FAILED TO MAKE OUT A PRIMA FACIE CAUSE OF ACTION UNDER THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT ("CEPA"), N.J.S.A. 34:19-1, ET SEQ., BY FAILING TO SATISFY THE FIRST PRONG OF THE APPLICABLE TEST.
THE LOWER COURT ERRED IN RULING THAT PLAINTIFF FAILED TO MAKE OUT A PRIMA FACIE CAUSE OF ACTION UNDER THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT ("CEPA"), N.J.S.A. 34:19-1, ET SEQ., BY FAILING TO SATISFY THE SECOND PRONG OF THE APPLICABLE TEST.
THE LOWER COURT ERRED IN RULING THAT PLAINTIFF FAILED TO MAKE OUT A PRIMA FACIE CAUSE OF ACTION UNDER THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT ("CEPA"), N.J.S.A. 34:19-1, ET SEQ., BY FAILING TO SATISFY THE THIRD PRONG OF THE APPLICABLE TEST.
THE LOWER COURT ERRED IN RULING THAT PLAINTIFF FAILED TO MAKE OUT A PRIMA FACIE CAUSE OF ACTION UNDER THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT ("CEPA"), N.J.S.A. 34:19-1, ET SEQ., BY FAILING TO SATISFY THE FOURTH PRONG OF THE APPLICABLE TEST.
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.
We review a trial court's ruling on summary judgment based on our own interpretation of the law. Prudential Prop & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). Legal issues are reviewed without limitation. Illva Saronno Corp. v. Liberty Hill Realty, Inc., 344 N.J. Super. 443 (App. Div. 2001).
The purpose of CEPA is to "protect and encourage employees to report illegal or unethical workplace activities and to discourage . . . employers from engaging in such conduct." Abbamont v. Piscataway Bd. of Educ., 138 N.J. 405, 431 (1994). Chapter 34:19-3 of CEPA provides that:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
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, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, . . . ;
(2) is fraudulent or criminal, . . . ;
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
The Court has articulated four elements that a plaintiff must demonstrate in an action under subsection c(1) of CEPA:
(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; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (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. [Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999)).]
"A claimant under subsection c(3) must establish the same prima facie elements, however, he or she must first articulate the existence of a clear mandate of public policy which the employer's conduct violates." Kolb, supra, 320 N.J. Super. at 476.
As a threshold matter, courts evaluating a claim under subsection c must make a determination regarding the "specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true." Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 310 (App. Div. 1997). The Court, however, has clarified that this does not mean that a plaintiff must show that a law, rule, regulation, or mandate of public policy actually would be violated if all the alleged facts were true. Dzwonar, supra, 177 N.J. at 464. Rather, "a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred." Ibid. "[W]hen a defendant requests that the trial court determine as a matter of law that a plaintiff's belief was not objectively reasonable, the court must determine that there is a substantial nexus between the complained-of conduct and a law or public policy identified by the court or the plaintiff." Ibid. If no such statute, regulation, rule or public policy is forthcoming, "[t]he trial court can and should enter judgment for a defendant." Id. at 463.
Dzwonar, supra, 177 N.J. at 464-65, noted that Abbamont, supra, "is instructive of the standard to be employed by a trial court when a plaintiff asserts a claim under N.J.S.A. 34:19-3c." In Abbamont, a teacher alleged that the school fired him in retaliation for his complaints about health and safety conditions in the school's metal shop. Abbamont, supra, 138 N.J. at 410. Abbamont found that plaintiff adequately "established the existence of health and safety administrative rules and regulations and a clear mandate of public policy applicable to conditions of the metal shop." Id. at 424. At trial, the plaintiff noted that he was aware of administrative regulations related to industrial arts such as metal work. Ibid. In fact, the school adopted and distributed a safety guide that included two New Jersey administrative regulations. Ibid.
After reviewing the regulations and noting that the plaintiff's claims were closely related to a violation of the regulations, the Court concluded that the plaintiff had "'a reasonable, objective belief that the conduct of the school officials was a specific violation' of those regulatory standards and 'incompatible' with their public policy mandate." Dzwonar, supra, 177 N.J. at 465 (quoting Abbamont, supra, 138 N.J. at 424). Despite removing the requirement that a plaintiff show that a law would actually be violated, the Court did not remove the requirement that plaintiff identify a law or public policy that he or she reasonably believed to be violated. Dzwonar, supra, 177 N.J. at 464-65. Dzwonar's acceptance of Abbamont makes it clear that a court should not permit a CEPA claim to go forward if a plaintiff merely states that conduct violates a law or policy without identifying a law or policy. Therefore, plaintiff's assertion that "CEPA does not require a whistle-blowing employee to know the exact law, rule, regulation, or public policy that he claims has been violated by his employer," is not entirely accurate.
Moreover, Dzwonar found that the plaintiff did not establish the first prong of a CEPA claim even though plaintiff identified the Labor and Management Reporting and Disclosure Act (LMRDA), 29 U.S.C.A. § 411, as the specific law defendant violated. Dzwonar, supra, 117 N.J. at 465-68. Identifying a statute alone does not satisfy the first prong of a CEPA claim. Dzwonar engaged in a thorough analysis of the identified statute and found that the statute lacked a close relationship with plaintiff's claims; therefore, plaintiff's claims were not objectively reasonable. Id. at 467.
Furthermore, in Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 40 (App. Div. 2005), decided after Dzwonar, supra, we held that a CEPA plaintiff must provide the trial court "'with enough by way of proof and legal basis to enable the court to determine as a matter of law' that the plaintiff has identified 'the asserted violation with adequate particularity' for a jury's consideration."
[A] trial court must first identify and enunciate the specific terms of a statute, rule, regulation, declaratory ruling, professional code of ethics, or clear expression of public policy that the employee reasonably believes would be violated if the facts as alleged are true and determine that there is a substantial nexus between the complained-of conduct and the law or public policy identified by the court or the plaintiff. [Klein, supra, 377 N.J. Super. at 40.]
The court must resolve the threshold legal issues concerning the existence of a law or policy before a trier of fact determines whether an employer retaliated against a plaintiff. Ibid.
In Klein, plaintiff-doctor refused to perform a radiology assignment until the hospital instituted changes to alleviate his concerns for his patients' care. Id. at 35. We affirmed the trial court's decision to grant summary judgment because the record was "devoid of any evidence, nor [did] plaintiff even allege, any state or federal regulatory violations committed by [defendant]." Id. at 44. We agreed with the trial court's characterization of the case as a private dispute, as opposed to a whistle-blowing activity, because the trial court could not find a rule, regulation or public policy that was violated. Ibid.
Plaintiff seeks to distinguish Klein from the present case, urging that the reason why the [Klein] Court agreed with the trial court was not so much that Plaintiff was not specific enough in terms of identifying the law, rule, regulation, or public policy he alleged the Defendant had violated, but instead because even when considering the facts in the light most favorable to the Plaintiff, the issues he complained about did not rise to the level of a true public health and safety issue.
Plaintiff's reasoning is flawed. The fact that Klein could not enumerate a law, rule or public policy that his employer allegedly violated is essentially the reason why the issues complained of "did not rise to the level of a true public health and safety issue." As Klein stated, "CEPA was enacted to prevent retaliatory action by an employer against an employee who 'blows the whistle on illegal or unethical activity' . . . not to . . . settle internal disputes at the workplace." Klein, supra, 377 N.J. Super. at 45.
Defendant first argues that we should not reach the merits of the case and should affirm the decision of the lower court because "plaintiff admits to raising for the first time in his appellate papers, various laws, rules and regulations which he alleges that [defendant] . . . violated." Thus, defendant contends this argument is improperly raised on appeal. Ordinarily, we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citations omitted). However, Regan v. City of New Brunswick, 305 N.J. Super. 342, 355 (App. Div. 1997), a case involving a CEPA claim, recognized that the court may consider claims not specifically argued at trial, and first raised on appeal, so long as the issue on appeal is generally the same as the issue below.
In the present case, plaintiff maintains that he has satisfied the first prong of a CEPA claim because he now lists various statutes and regulations relating to asbestos. As defendant points out, presenting a laundry list of statutes alone does not demonstrate a "substantial nexus" between the statute or regulation and the complained-of conduct. Aside from listing various laws, plaintiff does not proffer any connection between the cited laws and defendant's conduct. Plaintiff relies on the "widely known" dangers of asbestos as the basis of his argument. These dangers, however, do not assist plaintiff in demonstrating which laws were violated and how defendant's conduct would have violated them.
Furthermore, the facts of this case do not indicate that plaintiff reasonably believed that performing the requested job would have violated a law. First, plaintiff states that "he might have said we need air monitor[s] here before anybody does anything." (emphasis added). The record is not clear as to whether plaintiff requested certain equipment or whether plaintiff expressed his safety concerns. Second, Duffy stated that he would send negative air machines so that plaintiff could perform the job, a fact that makes plaintiff's purported belief even more unreasonable because defendant appeared willing to accommodate plaintiff's safety concerns. Thus, what is absent here is evidence of a clear request by plaintiff for specific safety equipment which was rebuffed by defendant. Therefore, we conclude that plaintiff has not adequately established an objectively reasonable belief that the complained-of conduct violated any law, regulation or public policy.
Klein, supra, 377 N.J. Super. at 42, observed that "merely couching complaints in terms of a broad-brush allegation of a threat to patients' safety is insufficient to establish the first prong of a CEPA claim." Here, plaintiff's broad claims that performing the requested job would be dangerous because of asbestos does not satisfy the first prong of a CEPA claim. Not only has plaintiff failed to identify with particularity a relevant law or public policy, but even accepting his list of statutes and regulations as sufficient, plaintiff fails to present evidence supporting a substantial nexus. As in Dzwonar, plaintiff does not demonstrate how his broad allegations closely relate to the cited laws. For the same reasons, this case is distinguishable from Abbamont, in which the plaintiff demonstrated knowledge of applicable regulations and explained how defendant's conduct would violate such regulations. Plaintiff has not done so here. CEPA is not intended to protect an individual who disagrees with the conduct of his or her employer, so long as the employer's conduct is legal and ethical.
Because plaintiff did not meet the first prong of CEPA, summary judgment was appropriate. While we need not address the other CEPA prongs, we comment briefly on the fourth prong.
A claimant under CEPA must also demonstrate that "a causal connection exists between the whistle-blowing activity and the adverse employment action." Dzwonar, supra, 177 N.J. at 462. The causal connection may be satisfied "by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action." Maimone v. City of Atl. City, 188 N.J. 221, 237 (2006) (citing Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). Plaintiff asserts that defendant terminated his employment solely because of plaintiff's whistle-blowing activity. Defendant contends that plaintiff's termination "had no relation to any alleged whistle-blowing activity made by [plaintiff] . . . but was caused specifically by [plaintiff's] subsequent insubordination."
The facts of this case do not support a finding that a causal connection existed between plaintiff's whistle-blowing activity and his termination. First, defendant did not originally terminate plaintiff; instead, defendant reassigned plaintiff to another crew with the same salary. Plaintiff was told to speak with Tom Roch so that plaintiff could continue to work for defendant, but at a different location. Despite plaintiff's refusal to perform work assigned to him, defendant made a good faith attempt to retain plaintiff rather than terminating him. In the course of this exchange, Duffy reassured plaintiff that he was not fired, although admonishing plaintiff that he should have clearly expressed his concerns directly to defendant.
It was not until plaintiff's phone conversation with Kelly that he was terminated. Instead of calling Roch to receive his new assignment, plaintiff called defendant's office and again complained to Duffy that he was being fired. Duffy told him he was not being fired and transferred his call to Kelly. During their conversation, Kelly repeatedly told plaintiff to show up for work notwithstanding plaintiff's replies that he may not show up. After plaintiff continued to refuse to work and threatened Kelly that he would see to it that the company would lose its operating license, it appears that Kelly had no choice but to fire plaintiff. Plaintiff instigated the situation rather than accepting the fact that he was not terminated.
Duffy and Kelly gave plaintiff more than a fair chance to continue to work for defendant.
Plaintiff's termination was not due to his refusal to perform the original contested assignment; instead, defendant fired plaintiff because he refused to perform any work and essentially told Kelly that he would not show up for work. Therefore, defendant had a legitimate reason to terminate plaintiff, wholly independent of any whistle-blowing activities. The facts establish that plaintiff was not fired due to his alleged whistle-blowing activities relating to the complained-of job, but due to his failure to accept reassignment. Defendant's actions -- first reassigning an employee that refuses to perform work rather than firing him, and terminating an employee that refuses to work at all -- are both logical and acceptable within the framework of CEPA.
Assuming arguendo that plaintiff satisfied all four elements of a prima facie CEPA claim, the burden of persuasion shifts to the defendant. Klein, supra, 377 N.J. Super. at 38, held that "if a plaintiff is able to establish [the CEPA elements], then the defendants must come forward and advance a legitimate, nondiscriminatory reason for the adverse conduct against the employee." If defendant proffers such reasons, "plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Id. at 39.
For the reasons set forth above, defendant did establish a legitimate, non-discriminatory reason for plaintiff's discharge. Thus, the burden shifts to plaintiff to demonstrate that defendant's reasons for termination were pretextual. In this case, defendant cannot and has not offered evidence that his termination was pretextual. As previously stated, plaintiff's conduct caused defendant to take action against him, apart from plaintiff's alleged whistle-blowing activities.