March 28, 2008
JOSEPH C. LINNEMAN, PLAINTIFF-APPELLANT,
BURLINGTON COUNTY BOARD OF CHOSEN FREEHOLDERS AND AUGUSTUS M. MOSCA, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-519-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 30, 2008
Before Judges Winkelstein and LeWinn.
For eight-and-a-half years, plaintiff, Joseph C. Linneman, was an at-will employee of the Burlington County Board of Chosen Freeholders (the Board), serving in the Treasury Department in the title of Risk Manager. The Board terminated plaintiff's employment on February 7, 2007.
On February 19, 2007, plaintiff filed a complaint and order to show cause against the Board and Augustus Mosca, the County Administrator and Clerk of the Board. Plaintiff alleged defendants had terminated him in violation of his rights under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA); his order to show cause sought immediate reinstatement to his position pursuant to N.J.S.A. 34:19-5.
On March 7, 2007, defendants simultaneously filed their answer and a motion to dismiss the complaint. Plaintiff cross-moved to file an amended complaint on April 5, 2007. Following oral argument, on April 30, 2007, the trial judge entered an order (1) granting plaintiff permission to file an amended complaint; and (2) granting defendant's motion to dismiss that complaint with prejudice. This appeal followed.
We have thoroughly reviewed the record. Because of what we consider to be procedural infirmities in the trial court's disposition of this matter, we reverse the order of April 30, 2007, and reinstate plaintiff's amended complaint.
In his amended complaint, plaintiff set forth forty-four paragraphs describing factual allegations in support of his CEPA claim. The gravamen of his complaint was that defendants illegally retaliated against him "because he objected to the County's gross mismanagement and willful waste of public money."
Defendants' motion sought "to dismiss [the complaint] for failure to state a cause of action under R.4:6-2(e) and/or R.4:46." (Emphasis added.) Despite the reference to Rule 4:46, defendants' motion did not seek relief in the form of a summary judgment; nor did it comply with the specific requirements of Rule 4:46-2(a). Defendants filed no "statement of material facts . . . set[ting] forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." R. 4:46-2(a).
Although defendants attached certifications and exhibits, their motion and supporting brief expressly sought dismissal for "failure to state a claim on which relief can be granted," as provided in Rule 4:6-2(e). Those certifications and exhibits addressed plaintiff's original complaint and not the amended complaint filed with plaintiff's cross-motion on April 5, 2007. Defendants' brief in opposition to that cross-motion contained no additional certifications and, once again, argued that the amended complaint failed to state a cause of action under CEPA.
In both their original motion and their brief in opposition to plaintiff's cross-motion, defendants contended that plaintiff was terminated because he violated the County's sexual harassment policy, as well as policies governing lunch and e-mail privileges. Defendants asserted that, after plaintiff rejected a settlement agreement, the Board voted to terminate his employment.
Certifications by present and former County employees and exhibits appended to defendants' March 7, 2007, motion claimed that (1) on November 30 and December 6, 2006, plaintiff made sexually inappropriate comments to a female co-worker; and (2) the investigation of the sexual harassment complaints disclosed that plaintiff "often took two-hour lunches, in violation of County policy" and that his "e-mail account was over four times larger than the County standard for maximum e-mail storage."
According to those certifications, the investigation results were presented to the Board on January 10, 2007, at which time Mosca, the County Administrator and Clerk of the Board, was directed to convey the Board's displeasure to plaintiff. Mosca certified that he met with plaintiff on January 12, 2007, told him about the investigation results, and conveyed the Board's sentiment that plaintiff should resign within the year.
On January 25, 2007, plaintiff sent a letter to Mosca, (1) giving his description of the events subject to investigation; (2) noting that he had never received written notice of the allegations against him; (3) stating that Mosca had promised to give him such written notice; and (4) concluding: "As soon as I receive the written allegations that I have been charged with, I will then formulate some sort of response to these allegations for your review."
On January 30, 2007, at the Board's direction, Mosca presented plaintiff with a written settlement agreement and release. Under the terms of that agreement, plaintiff was to accept a ten-day suspension; submit a confidential letter of apology to the offended co-worker; resign effective December 31, 2007; be subject to immediate termination in the event of a future violation; and waive all claims against the County.
The Board next met on February 7, 2007. One hour prior to that meeting, plaintiff's counsel fax'd a letter to Mosca stating: "I represent [plaintiff] with regard to a CEPA claim against Burlington County. Upon receipt of this letter, it is kindly requested that someone contact me to discuss this matter." Neither Mosca nor any Board member responded to this letter. Because plaintiff had not signed the settlement agreement, the Board voted to terminate plaintiff's employment effective immediately.
All of the foregoing was contained in the certifications and exhibits appended to defendants' motion to dismiss. Defendants also alleged that plaintiff had "never made any complaints concerning allegations of improper . . . or illegal conduct . . . against public policy by employees of the County." Defendants argued that plaintiff had raised a CEPA claim only as an effort to avoid disciplinary action and to save his job.
At the outset of oral argument, on April 13, 2007, the judge noted that defendants had moved either to dismiss pursuant to Rule 4:6-2(e) or 4:46-1 which is the summary judgment motion. . . . [T]he first, of course, I can only look at the complaint itself. Can't go outside the four corners of the complaint.
For the motion for summary judgment I can go outside and consider other documents[.]
The judge did not address defendants' non-compliance with Rule 4:46-2(a).
Defendants acknowledged that, since they had not yet filed an answer to the amended complaint, the motion would be handled "as a motion to dismiss on the pleadings." The judge concurred with this position.
Notwithstanding that acknowledgement, defense counsel then proceeded to discuss the factual contentions contained in the certifications and exhibits. Counsel cited plaintiff's January 25, 2007, letter as proof that he "did not accept the offer of the County." He also cited allegations in the certifications that plaintiff had never made any complaints about "any improprieties on behalf of the County or the employees of the County."
Defendants' principal argument addressed to the four corners of the amended complaint was that it failed to state that plaintiff had given written notice to any County personnel, and he had failed to cite a specific statute, rule, regulation, or public policy allegedly violated by the actions of which he complained. In opposition, plaintiff argued that the CEPA statute eliminates the need for written notice when a plaintiff believes it would do no good because the supervisor is already aware of the challenged conduct.
The judge specifically alluded to the "affidavits from [defense counsel's] clients" and noted that plaintiff "doesn't have an affidavit in response that says, hey wait a minute, I went to so and so and warned them that . . . they were wasting money[.]" In response, plaintiff noted that those defense "affidavits" responded to the original complaint and not to the numerous additional allegations in the amended complaint.
Against this background, we now turn to the manner in which the judge disposed of defendants' motion.
Pursuant to Rule 4:6-2(e), a defendant may, prior to filing an answer, move to strike all or part of a complaint for "failure to state a claim upon which relief can be granted." Such a motion entails scrutiny of the complaint to discern whether any viable cause of action exists. "[T]he test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts. . . . At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).
Rule 4:6-2 also provides, in pertinent part:
If, on a motion to dismiss based on the defense numbered (e) [failure to state a claim upon which relief can be granted], matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.
At the outset of his decision, the trial judge noted: "This complaint, according to the rule, must be read with great liberality to see whether the fundament of a cause of action exists." This language correctly describes the standard under Rule 4:6-2(e).
However, the judge went beyond reading the complaint "to see whether the fundament of a cause of action exists." He relied upon factual contentions in certifications defendants submitted in response to plaintiff's original complaint, and rendered the following findings on disputed issues of material fact:
(1) Plaintiff did not engage in whistle-blowing activity during his employment.
(2) Plaintiff's January 25, 2007 letter constituted a refusal to accept the settlement agreement.
(3) There was no evidence plaintiff had ever made a written complaint to any supervisor, as required by N.J.S.A. 34:19-4.
(4) Plaintiff's "specific allegations are discretionary activities on the part of elected officials."
(5) Plaintiff was terminated "for something that was not causally connected to whistle blowing activity because there was no whistle blowing."
(6) Plaintiff's termination was because he "refused to sign" the settlement agreement.
(7) "The undisputed fact [is] that there was no whistle blowing activity until . . . the time of his termination and that there, therefore, is no causal connection between what didn't exist, that is the whistle blowing activity, and the termination."
These findings went far beyond the four corners of the amended complaint.
Thus, notwithstanding the trial judge's ruling that the complaint would be dismissed for failure to state a claim, we conclude that he treated defendants' motion as one for summary judgment. As such, the judge should have re-scheduled the motion in order to afford "all parties . . . reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2. In failing to do so, the judge misapplied the provisions of Rule 4:6-2(e).
That said, because the trial court purportedly dismissed plaintiff's amended complaint pursuant to Rule 4:6-2(e), we turn our attention to that complaint to determine whether it is capable of withstanding dismissal pursuant to a proper application of that rule.
In reviewing a complaint dismissed under Rule 4:6-2(e), our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.
However, a reviewing court "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.". . .
For purposes of analysis plaintiff [is] entitled to every reasonable inference of fact. . . . The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach. [Printing Mart, supra, 116 N.J. at 746 (quoting DiCristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)) (citations omitted).]
Applying these precepts to this case, we find the complaint on its face states a viable CEPA claim. CEPA provides that an employer "shall not take any retaliatory action against an employee" who
[d]iscloses . . . to a supervisor . . . an activity, policy or practice of the employer . . . that the employee reasonably believes . . . is in violation of a law, or a rule or regulation[,] . . . or . . . [o]bjects to . . . any activity, policy or practice which the employee reasonably believes . . . is in violation of a law, or a rule or regulation . . . or . . . is incompatible with a clear mandate of public policy concerning the public . . . welfare. . . . [N.J.S.A. 34:19-3(a)(1), (c)(1), (c)(3).]
As noted above, plaintiff's amended complaint sets forth forty-four paragraphs alleging fiscal impropriety and inefficiency on the part of the County. Those allegations include the following:
Several years ago, the County opened up a landfill in Florence Township.
Since the opening of this landfill, the county has carried environmental impairment liability insurance coverage with a deductible of $75,000.00 and a limit of $10,000,000.00 for claims that would result from any environmental damage or harm.
In the summer of 2006, the Plaintiff raised concerns that the county has a $3.5 million dollar self-insurance fund for this land fill [sic], even though there is much more than adequate insurance for any potential claim.
He raised this concern with the County.
He was directed not to mention this or put it in any reports that he prepared for the insurance commission.
Further, he was directed by the County's Legal Department to remove any mention of this secret fund from a report he prepared for the County's Insurance Commission.
Ever since raising the issue of this undisclosed 3.5 million dollar fund, the Plaintiff says that his relationship with his supervisors changed, for the worse, very abruptly.
Another example of the Plaintiff engaging in whistle-blowing activity is when the County was sued by a former hearing officer.
This hearing officer felt that he was retaliated against due to his opposition to the light rail line (he was a mayor of a Burlington County municipality through which the rail line travels).
There was insurance coverage for this claim and the claim was sent to the insurance carrier.
The County's legal department instructed the Plaintiff to withdraw the claim and told the Plaintiff that the County would handle the claim internally.
The Plaintiff encouraged the County to allow the insurance company to handle that claim. There was a $50,000.00 deductible for this claim, which would have been the County's only expense.
The County told the Plaintiff that they wanted to make sure that the former hearing [officer] did not get any settlement because of their anger towards him.
Because the County did not listen to the Plaintiff's concerns (and because the County wanted to retaliate against a political opponent), the County ended up having to pay $125,000.00.
The County ended up spending many extra tens of thousands of dollars of taxpayer money on a vendetta against a political opponent - -over the Plaintiff's objection.
These allegations constitute plaintiff's claimed "object[ions] to . . . participat[ing] in [an] activity . . . or practice which [he] reasonably believes . . . is incompatible with a clear mandate of public policy concerning the public . . . welfare[.]" N.J.S.A. 34:19-3(c)(3). If true, such conduct is protected from retaliatory action under the statute.
N.J.S.A. 34:19-4 requires an employee to have given the employer written notice of the challenged "activity, policy or practice" before making disclosure of same "to a public body" in order to be protected against retaliatory action. Here, plaintiff expressly contended that he should be considered exempt from the "written notice" requirement because he was "reasonably certain" that "one or more supervisors" knew about the activities in question. Plaintiff alleged that he complained directly to County employees about the various actions; he specifically alleged complaints to the legal department on at least two occasions. Whether plaintiff's certainty about his supervisors' knowledge was "reasonable" is a fact question not amenable to resolution on a Rule 4:6-2(e) motion to dismiss.
In his decision, the trial judge relied upon our Supreme Court's recent opinion in Carmona v. Resorts Int'l. Hotel, Inc., 189 N.J. 354 (2007), to support his conclusion that "there is absolutely no causal connection between the whistle blowing activity and the adverse employment action here." In Carmona, the plaintiff had filed a complaint alleging retaliatory action in violation of the Law Against Discrimination, N.J.S.A. 10:5-12(d) (LAD); no CEPA claims were involved. Id. at 359.
In that context, the Court found, as a matter of "[c]ommon sense . . . that the LAD cannot protect one who preemptively files a complaint solely in anticipation of an adverse employment action by the employer." Id. at 373. However, that determination came after the plaintiff had had his full "day in court," namely, a jury trial, resulting in a verdict in his favor. Id. at 366. By contrast, plaintiff here had this fact-sensitive issue summarily decided against him at the threshold.
Kolb v. Burns, 320 N.J. Super. 467 (App. Div. 1999), also relied upon by the trial judge, involved a plaintiff's appeal from a summary judgment dismissing her CEPA claims. In reversing, we found there were "genuine fact issues" as to the pretextual nature of defendants' reasons for their adverse employment action against the plaintiff. Id. at 481. Insofar as Kolb involved a summary judgment proceeding pursuant to Rule 4:46-1 to -6, and not a motion to dismiss pursuant to Rule 4:62-(e), the trial judge's reliance upon it was misplaced.
We conclude that, upon a proper application of Rule 4:6-2(e), the amended complaint was sufficient to withstand a motion to dismiss for failure to state a claim on which relief can be granted. Therefore, we reverse and remand for further proceedings consistent with this opinion, including consideration of plaintiff's request for injunctive relief under N.J.S.A. 34:19-5.
Reversed and remanded.
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