The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court upon Defendants' motion for summary judgment [Docket Item 18]. Plaintiff brings the statutory and common law claims at issue herein against her former employer, the Delaware River and Bay Authority ("DRBA" or "Authority"), and her supervisor at the Authority, James Johnson.
Defendants previously moved to dismiss Plaintiff's claims against the DRBA [Docket Item 4], and, in its March 30, 2009 Opinion and Order [Docket Items 14 and 15], the Court granted the DRBA's motion as to Plaintiff's statutory claims (brought pursuant to the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq.), and denied the motion as to Plaintiff's common law claims, without prejudice to DRBA's right to move for summary judgment and to present sufficient evidence to enable the Court to decide whether New Jersey or Delaware law governs the common law claims.
The principal issue remaining before the Court upon Defendants' motion for summary judgment is a choice of law determination as to whether New Jersey or Delaware law applies to Plaintiff's remaining common law claims governing her employment with the bi-state DRBA. In the present motion, Defendants also seek dismissal of all claims, statutory and common law, against Defendant Johnson. For the reasons discussed herein, the Court will grant Defendants' motion for summary judgment as to Plaintiff's common-law claims, and will grant Defendants' motion to dismiss Plaintiff's CEPA and NJLAD claims against Defendant Johnson.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Allegations in the Complaint
Plaintiff Trudy Spence-Parker is a New Jersey resident who was previously employed by the DRBA as the Authority's Chief Human Resources Officer. (Compl. ¶¶ 1, 6.) Plaintiff was hired for the Chief Human Resources Officer position on February 24, 2003, and served in that capacity at the DRBA until she tendered her resignation on March 14, 2008. (Id. at ¶¶ 6, 42.) As Chief Human Resources Officer, Plaintiff was responsible for "the development, implementation, monitoring, and enforcement of the Authority's human resources policies, procedures and practices and creating and sustaining a work environment that will make the . . . Authority an employer of choice." (Id. at ¶ 7.) In her capacity as Chief Human Resources Officer, Plaintiff reported directly to Defendant James T. Johnson, Jr., the Executive Director of the DRBA. (Id. at ¶¶ 3, 9.)
According to the allegations in the Complaint, while Plaintiff had a good working relationship with Mr. Johnson during the first two years of her employment, her relationship with Mr. Johnson began to deteriorate in May 2005. (Id. at ¶¶ 14, 17.) In May 2005, Plaintiff began to harbor concerns about the DRBA's search for a new Chief Financial Officer ("CFO") -- she disapproved of the outside recruiting consultant whom the DRBA employed during the hiring process and felt that the process was being "manipulat[ed]" -- and she expressed her concerns to Mr. Johnson on multiple occasions. (Id. at ¶ 18.) In response to Plaintiff's criticism of the CFO search process, "Mr. Johnson disregarded and dismissed Mrs. Spence-Parker's  concerns . . . and became increasingly critical of Mrs. Spence-Parker, acting increasingly argumentative and condescending toward her." (Id. at ¶ 19.)
In particular, Plaintiff alleges that Mr. Johnson engaged in the following conduct over the course of approximately three years: (1) Mr. Johnson falsely accused Plaintiff of "going over his head" to express concerns about the CFO search process to the DRBA commissioners, (id. at ¶ 20); (2) Mr. Johnson told Plaintiff that there were "rumors flying around with [her] name attached to many of them," (id. at ¶ 22); (3) Mr. Johnson excluded Plaintiff from several meetings essential to her job duties as Chief Human Resources Officer and reassigned some of Plaintiff's job duties, (id. at ¶¶ 23, 38-39); (4) Mr. Johnson required Plaintiff to submit weekly updates of human resources activities when other DRBA executives did not have to submit such updates, (id. at ¶ 24); (5) Mr. Johnson said in Plaintiff's presence, "I know I cannot fire tenured employees, but I know how to get them -- death by a thousand paper cuts," (id. at ¶ 25); (6) during a meeting with Plaintiff, Mr. Johnson closed the door to his office and screamed at her for forty-five minutes, telling her that she had mishandled the CFO search process, that she did not understand workplace politics, and that she "was not worth the money she was paid," (id. at ¶ 27); (7) Mr. Johnson removed Plaintiff from a committee that she had created because he did not want her to be the "face" of the committee, (id. at ¶ 29); (8) Mr. Johnson's secretary intercepted Plaintiff's mail, opened it, and did not deliver it to Plaintiff, (id. at ¶ 30); (9) Mr. Johnson falsely accused Plaintiff of stealing from the DRBA, (id. at ¶ 31); (10) Mr. Johnson sent "threatening emails" to Plaintiff because she was unable to schedule a training session around his schedule, (id. at ¶ 32); (11) Mr. Johnson refused to permit the DRBA's Public Information Officer to release an acknowledgment that several DRBA employees, including Plaintiff, had received a human resources certification, (id. at ¶ 33); (12) Mr. Johnson wrote a "letter of reprimand" to Plaintiff wrongly accusing her of having omitted information from a draft harassment policy, (id. at ¶ 34); (13) Mr. Johnson refused to authorize Plaintiff's participation in a volunteering opportunity, notwithstanding the DRBA's policy position encouraging volunteer work, (id. at ¶ 36); (14) Mr. Johnson did not invite Plaintiff to a Delaware Chamber of Commerce dinner, despite inviting her peers and subordinates, (id. at ¶ 40); and (15) Mr. Johnson refused to credit Plaintiff with an additional vacation day after she worked on a holiday.
In September 2007, Plaintiff met with the Chair and Vice-Chair of the DRBA Board of Commissioners Personnel Committee in order to express her concern over Mr. Johnson's conduct. (Id. at ¶ 37.) The Committee told Plaintiff to "keep her head down and do her job," and told her that they would follow up with her upon further review of the dispute. (Id.) Mr. Johnson's allegedly hostile conduct did not cease in the wake of her complaint to the Personnel Committee. (Id.) Finally, on March 14, 2008, allegedly as a result of Mr. Johnson's sustained hostile conduct "and upon recommendation of her physician," Plaintiff tendered her resignation to Mr. Johnson and the DRBA. (Id. at ¶ 42.)
2. Evidence Pertaining to Choice-of-Law Inquiry
Defendants assert that Plaintiff was hired at the DRBA Administration Building in New Castle, Delaware. (Walls Cert. ¶ 4.) Plaintiff states that while she had at least one interview at the DRBA's Administration Building, her contract was negotiated over the telephone between herself in New Jersey and a third-party recruiter in Pennsylvania. (Spence-Parker Cert. ¶ 4.) Plaintiff further alleges that she was informed that she was hired over the telephone while she was at home in New Jersey. (Id.) Defendants maintain that Plaintiff's hiring was formalized by a resolution of the Board of Commissioners that was passed in Delaware, that the letter informing Plaintiff of her hiring decision was sent from the DRBA Administration Building in Delaware, and that Plaintiff reported for her first day of work to the DRBA Administration Building in Delaware. (Walls Supp. Cert. ¶ 4.)
Plaintiff does not dispute that her sole office was located at the DRBA Administration Building in Delaware. (Walls Cert. ¶ 5; Spence-Parker Cert. ¶ 5.) Plaintiff's supervisor, Defendant Johnson, also has his primary office at the DRBA Administration and has one other satellite office in Lewes, Delaware. (Walls Cert. ¶ 6.) In addition, Defendants' evidence indicates that the DRBA's Human Resources Department, which Plaintiff supervised, is located at the DRBA Administration Building in Delaware, (id. at ¶ 10), and that Plaintiff's duties were "regularly performed" at that location. (Id. at ¶ 7.) Defendants state that Plaintiff conducted her meetings at the DRBA Administration Building in Delaware. (Id. at ¶ 14.) Plaintiff's business card identified her office as being located in Delaware and identified her office telephone number, which was a Delaware number. (Id. at ¶ 15.) At her discretion, Plaintiff also listed her Delaware office number as part of the electronic signature of her email account. (Id. at ¶ 17.) DRBA also issued Plaintiff a cellular phone which had a Delaware phone number. (Id. at ¶ 16.) In addition, Defendants provided Plaintiff with a company vehicle which was registered, serviced and insured in Delaware, and "primarily used to commute to and from work in Delaware." (Id. at ¶ 12.)
Plaintiff does not dispute that the Human Resources Department of the DRBA is located at the DRBA Administration Building in Delaware; however, Plaintiff claims that her "duties and responsibilities as CHRO of the DRBA required her to oversee the entire workforce of the DRBA, throughout both New Jersey and Delaware." (Spence-Parker Cert. ¶ 10.) Plaintiff alleges that she was "regularly called upon to travel throughout both New Jersey and Delaware as part of [her] job duties and responsibilities." (Id. at ¶ 5.) In addition, Plaintiff asserts that she "regularly worked from DRBA offices located in both New Jersey and Delaware, as well as from [her] home in New Jersey." (Id. at ¶ 6.) According to Plaintiff, as CHRO of the DRBA, she conducted "some of [her] meetings at the DRBA Administration Building" and also "conducted some of [her] meetings at DRBA facilities in New Jersey." (Id. at ¶ 14.)
With respect to Plaintiff's travel on DRBA business, Defendants assert that beginning in January 2005, all executive employees of the DRBA, including Plaintiff, were required to submit monthly travel reports detailing their business related travel with DRBA vehicles. (Walls Supp. Cert. ¶ 5.) These reports did not include any personal travel, including travel between an employee's residence and his or her primary work location. (Id.) According to Defendants, Plaintiff completed such reports until April 2006, completing sixteen reports in total. (Id.) Plaintiff did not submit any such travel reports after April 2006. (Id.) According to Defendants, in the reports submitted by Plaintiff, she indicated forty-seven business-related trips using a DRBA-issued vehicle. (Id.) According to Defendants' evidence, twenty-four of those forty-seven trips involved travel to locations in Delaware other than Plaintiff's office at the DRBA Administration Building, sixteen trips were to locations in New Jersey, and the remainder of the trips were to destinations outside of either New Jersey or Delaware. (Id.)
According to Defendants, Plaintiff supervised twelve employees at the time her employment with the DRBA ended, including two who were located in New Jersey. (Walls Cert. ¶ 8.) Defendants assert that the two employees in New Jersey did not report directly to Plaintiff. (Id.) Certain employees that did report directly to Plaintiff, namely, the Payroll Manager, Benefits Manager, Education and Training Manager, Human Resources Manager, EEO and Recruitment Manager, and Risk Manager, were all located in Delaware. (Id. at ¶ 9.)
Plaintiff asserts that at the time of her departure from the DRBA, she "directly supervised" twelve employees. (Spence-Parker Cert. ¶ 7.) Of those twelve employees, ten were located at the DRBA Administration Building in Delaware and two were located in New Jersey. (Id. at ¶ 8.) Plaintiff certifies that all twelve employees "directly reported to [her] on a regular basis," including the two Human Resources employees located in New Jersey. (Id. at ¶ 9.) Plaintiff also asserts that she "routinely" traveled to Cape May, New Jersey, to meet with these two employees at that location. (Id.)
While Plaintiff certifies that she "directly supervised" twelve employees, Defendants assert that Plaintiff, at the time of her departure, "directly supervised" seven employees, and that five employees were "directly supervised" by the Human Resources Manager, Andrew Ritchie. (Walls Supp. Cert. ¶ 7.) According to Defendants, the two human resources positions located in New Jersey were among the five employees that directly reported to the Human Resources Manager. (Id. at ¶ 7c.) During a six-week period between July 1, 2004, and August 23, 2004, due to a vacancy in the position of Human Resources Director (which later became the position of Human Resources Manager), Plaintiff directly supervised the five positions that normally reported directly to the Human Resources Director. (Id. at ¶ 7b.) Once the position of Human Resources Manager was filled by Mr. Ritchie on August 23, 2004, these positions resumed reporting directly to the Human Resources Manager, who directly reported to Plaintiff. (Id.)
Defendants certify that the two New Jersey human resources positions were that of Human Resources Generalist and Human Resources Administrator. (Id. at ¶ 9.) According to the job descriptions for these two positions, each position reports to the Human Resources Manager. (Walls Supp. Cert. Ex. C at 3-6.) In addition, leave authorization forms for each of the New Jersey human resources employees submitted on behalf of Defendants indicate that the employee's supervisor was Mr. Ritchie and contain Mr. Ritchie's signature. (Walls Supp. Cert. Ex. B)
Defendants certify that Delaware taxes were withheld from Plaintiff's pay check, not New Jersey taxes. (Walls Cert. ¶ 11.) In addition, the DRBA-issued vehicle used by Plaintiff was considered income to Plaintiff for which Delaware taxes were withheld. (Walls Supp. Cert. ¶ 10.) Plaintiff acknowledges that Delaware taxes were withheld from her paychecks, but certifies that she did not pay Delaware taxes in connection with her employment with the DRBA. (Spence-Parker Cert. ¶ 11.) According to Plaintiff, the Delaware taxes withheld from her pay were refunded each year and she instead paid New Jersey income taxes as a New Jersey resident. (Id.) For her use of the DRBA-provided company vehicle that Plaintiff used "to respond to HR-related issues throughout New Jersey and Delaware," Plaintiff received an annual $4,350 taxable benefit which she paid on her New Jersey income taxes. (Id. at ¶ 12.)
According to Plaintiff, the DRBA Board of Commissioners and its sub-committees "intentionally hold meetings in both New Jersey and Delaware, typically on the third Tuesday of every month, as per the directive of Warren Wallace, Chairman of the Board of Commissioners from 2006-2007." (Id. at ¶ 3.) Defendants certify that "nearly all" meetings of the DRBA Board of Commissioners and its sub-committees take place in Delaware. (Walls Cert. ¶ 13.) According to Defendants, the DRBA Board of Commissioners has held eleven meetings as well as eleven Commissioner committee meetings each year since 2003. (Walls Supp. Cert. ¶ 11.) Defendants assert that during Plaintiff's employment with the DRBA, "only 1-2 meetings" out of the twenty-two meetings each year were held in New Jersey, with the remaining twenty to twenty-one meetings taking place in Delaware. (Id.)
Plaintiff alleges that "the DRBA is committed to maintaining an even balance of employees from New Jersey and Delaware." (Spence-Parker Cert. ¶ 16.) Also, according to Plaintiff, during her time as CHRO, "the DRBA's executive team kept close track of the percentages of general DRBA employees and executive board members to ensure an even balance of New Jersey and Delaware employees." (Id. at ¶ 17.) Plaintiff certifies that in order to "ensure an even balance of New Jersey and Delaware employees, Defendant Johnson required [Plaintiff] to prepare bi-annual reports concerning the balance of New Jersey and Delaware DRBA employees." (Id. at ¶ 18.) Plaintiff further claims that at the time she was hired, she was told that her New Jersey residency was "a deciding factor" in her hiring. (Id. at ¶ 19.) In addition, Plaintiff claims, based "upon information and belief," that the DRBA required that her replacement for the CHRO position be a New Jersey resident. (Id. at ¶ 20.)
According to Defendants, while DRBA Board members may have requested information as to the constituency of DRBA employees with respect to New Jersey or Delaware residency, "the DRBA executive team has never been requested or required to keep close track of the breakdown of the DRBA workforce between New Jersey or Delaware residency." (Walls Supp. Cert. ¶ 13.) While Plaintiff asserts that the DRBA required that her replacement as CHRO be a New Jersey resident, Defendants certify that the CHRO position has not been filled and that no instructions have been given by the Board of Commissioners that such replacement be a New Jersey resident. (Id. at ¶ 14.)
Plaintiff asserts that she "tendered her resignation to the DRBA via a resignation letter [that she] drafted and sent from [her] home in New Jersey to the DRBA Administration Building in Delaware." (Spence-Parker Cert. ¶ 15.) Defendants certify that "when Plaintiff tendered her resignation on March 14, 2008, such resignation was tendered to the DRBA at the Administration Building in Delaware." (Walls Cert. ¶ 18.) According to Defendants, Plaintiff's letter of resignation had been slipped under Defendant Johnson's office door and was in an envelope that was not postmarked. (Walls Supp. Cert. ¶ 12.)
Plaintiff initiated this action in New Jersey Superior Court, and Defendants removed the matter to this Court pursuant to 28 U.S.C. § 1441(b) on July 23, 2008 [Docket Item 1]. Plaintiff's Complaint asserted common law claims for breach of contract and breach of the duty of good faith and fair dealing (Counts I and II, respectively), and statutory claims under the New Jersey Conscientious Employee Protection Act and the New Jersey Law Against Discrimination (Counts III and IV*fn1 , respectively). Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) [Docket Item 4] in lieu of an answer as to which the Court heard oral argument on February 26, 2009 and reserved decision.
In an Opinion and Order entered on March 30, 2009 [Docket Items 14 and 15], the Court granted Defendants' motion to dismiss as to Plaintiff's CEPA and NJLAD claims against the DRBA"), and denied without prejudice DRBA's motion to dismiss as to Plaintiff's common law contract claims. Specifically, this Court concluded that (1) the CEPA and the NJLAD do not apply to the DRBA, (Docket Item 14 at 16-24); and (2) the DRBA may be subjected to suit for alleged breaches of contracts into which it enters, (id. at 24-27); and (3) the viability of Plaintiff's common law contract claims rests on a threshold question as to choice-of-law, the answer to which the Court could not reach at the motion-to-dismiss stage. (Id. at 36-37.) The Court therefore denied DRBA's motion to dismiss Plaintiff's common law claims without prejudice to DRBA's right to move for summary judgment and to present sufficient evidence to enable the Court to decide the choice-of-law issue. (Id. at 37.)
Defendants filed the present motion for summary judgment [Docket Item 18] on April 29, 2009, asserting (1) that Delaware law applies to the instant matter and that therefore Plaintiff's remaining common law claims cannot survive, and (2) that summary judgment ...