March 28, 2008
MICHAEL ADZIMA, GARY BRENNER AND PAUL GUEST, PLAINTIFFS-APPELLANTS,
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT, AND PSEG NUCLEAR, LLC, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-000202-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2008
Before Judges Skillman, Yannotti and LeWinn.
Plaintiffs are three of approximately 100 employees terminated by defendant in November 2003 as part of a company- wide reorganization. Plaintiffs brought this action claiming that they had been terminated in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, due to their efforts in 2001 to bring defendant into compliance with federal standards for refrigerant handling. In addition, plaintiff Adzima, who was fifty-two at the time, claimed that defendant had violated the Law Against Discrimination (LAD), N.J.S.A. 10:15-1 to -42, by terminating him because of his age. During the period for discovery, plaintiffs were deposed.
However, plaintiffs did not undertake to depose any of defendant's employees involved in the decision to terminate them or any representatives of the outside consulting firm that provided advice to defendant regarding the company reorganization, including procedures for selection of the employees who would be terminated.
Following the end of discovery, defendant moved for summary judgment. Plaintiffs filed a cross-motion for a fifth extension of the period for discovery. Judge Bowen denied plaintiffs' motion and granted defendant's motion for summary judgment dismissing plaintiffs' complaint by an oral opinion delivered on January 11, 2007. He concluded that plaintiffs' efforts to bring defendant into compliance with federal standards for refrigerant handling should be considered, for purposes of summary judgment, as an activity protected by CEPA. However, Judge Bowen concluded that plaintiffs had failed to present evidence from which a reasonable trier of fact could find the requisite causal connection between that activity and plaintiffs' terminations. He also concluded that no reasonable trier of fact could find that the reason defendant gave for plaintiffs' terminations, a company-wide reorganization in which approximately 100 employees were terminated, was pretextual. In reaching these conclusions, Judge Bowen stated:
[T]here is evidence brought forward by . . . the defendant that the actions that were taken were the result of a restructuring which involved a number of other persons other than these three plaintiffs, and that in a restructuring and reduction in force there was a process for determining whether applicants or incumbents would fill those positions as a result of their restructuring and that process was uniform as to all applicants.
It contained criteria which were reasonable and diverse and . . . objective at least in addressing the capability of the applicants with respect to the requirements of the individual positions, and they were subject to . . . an evaluation by a number of persons. And in utilizing those diverse criteria related to the positions themselves involving in some cases absolutely objective criteria as to education and work experience as well as training there was a process utilized for the filling of these positions of the plaintiffs in the restructuring process which utilized reasonable criteria in evaluating the needs of the positions, and in doing so the defendants have shown that it was an objective process regardless of whether it was a use of objective statistical data. And, that the results show that those criteria indicated to the evaluators others more eligible for the positions than these particular plaintiffs.
The defendants have, therefore, shown that there was no pretextual reason or reasons for the non-selection of these particular plaintiffs, but a rational selection process of the most qualified applicants for the position as part of an overall restructuring which was demonstrated to take place and which has not actually been contested or refuted that there was a restructuring and a reorganization, and it involved a number of other persons as well.
Judge Bowen also dismissed Adzima's LAD age discrimination claim, stating:
[D]efendants have shown that they have not uniformly or in any pattern filled either this position or other position based on the criteria of age.
This is to be contrasted, defendants point out, with the claims of age discrimination where such a pattern does indicate that the particular employer has utilized . . . age as a criteria, because a pattern is shown of selection in several or numerous cases of a younger applicant rather than an older applicant.
The plaintiff has shown no such pattern in this case. . . .
And, inasmuch as the selection was a result of the process which I have just described which is not a pretextual process with respect to an age or retaliation or any other factor, the defendants have shown that age was not a factor in filling a position of Mr. Adzima.
On appeal, plaintiff presents the following arguments:
I. STANDARD OF REVIEW
II. PSE&G TOOK RETALIATORY ACTION AGAINST THE PLAINTIFFS WHO "DISCLOSE[D], . . . TO A SUPERVISOR . . . AN ACTIVITY, POLICY OR PRACTICE OF THE EMPLOYER THAT THE EMPLOYEE REASONABLY BELIEVES IS IN VIOLATION OF THE LAW, . . . N.J.S.A. 34:19-3(a).
III. IN TERMINATING MICHAEL ADZIMA
PSE&G VIOLATED NEW JERSEY'S LAW AGAINST DISCRIMINATION WHEN THEY REPLACED HIM WITH A YOUNGER INDIVIDUAL.
IV. PSE&G FAILED TO PROVIDE DISCOVERY AFTER NUMEROUS REQUESTS, AT LEAST FOUR MOTIONS TO COMPEL ADDITIONAL DISCOVERY AND AFTER SUBMITTING 602 ADDITIONAL PAGES OF DISCOVERY AFTER THE CLOSE OF DISCOVERY. THE COURT BELOW ERRORED AS A MATTER OF LAW IN FAILING TO ORDER ANY ADDITIONAL DISCOVERY EVEN WITH THE SHOWING OF "EXCEPTIONAL CIRCUMSTANCES AND ERRORED AS A MATTER OF LAW IN FAILING TO DISMISS DEFENDANTS' ANSWERS.
V. THE COURT BELOW ERRORED AS A MATTER OF LAW IN FAILING TO ORDER THE DEPOSITION OF BRIAN DERRICKS.
VI. AS THE DEFENDANT'S CONDUCT WAS PART OF A CONTINUING VIOLATION, THE STATUTE OF LIMITATIONS DOES NOT RUN.
We reject these arguments substantially for the reasons set forth in Judge Bowen's January 11, 2007 oral opinion.
Plaintiffs' arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).
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