January 11, 2010
STEVEN GREENWOOD, PLAINTIFF-APPELLANT,
LORENZO LANGFORD AND CITY OF ATLANTIC CITY, DEFENDANTS-RESPONDENTS, AND GARY ALSTON AND THOMAS RUSSO, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3474-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2009
Before Judges Carchman, Parrillo and Ashrafi.
Plaintiff Steven Greenwood appeals from the February 28, 2008 summary judgment dismissal of his complaint against defendants City of Atlantic City (City) and its former mayor, Lorenzo Langford, alleging retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.
The facts of record, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows. Plaintiff, a Caucasian male, has been an employee of the City since May 1993, serving in the capacity of a Supervising Field Representative for the Neighborhood Services, Code Enforcement. Plaintiff was also a member of the Supervisor's Union (Union) since March 17, 1997. Since August 14, 1995, plaintiff has reported to defendant, Gary Alston, an African-American and Chief of Code Enforcement, who in turn reported directly to defendant Thomas Russo, the City's Director of Neighborhood Services. During all relevant times, defendant Langford was the City's Mayor, Benjamin Fitzgerald was the City's Business Administrator, and Domenic Cappella was the Assistant Business Administrator.
According to plaintiff, the City engages in discriminatory hiring practices, which became evident to him around March 2004, when he was directed by Alston, at the Mayor's request, to interview Louis Bell, a resident of the City and an African- American, for a vacant Code Enforcement Inspector position. As part of the interview process, plaintiff "administered a basic inspector's skill test which consists of standard questions that should be common knowledge for an inspector." Plaintiff graded the test, which "Bell . . . failed . . . miserably." Plaintiff advised Alston that, based on the test results, Bell was unqualified for the position. Alston agreed with plaintiff and did not hire Bell as an inspector at the time. However, Bell was hired as a parking meter attendant.
On September 28, 2004, the City posted another job vacancy for a Code Enforcement Inspector. Russo directed plaintiff to review the submitted applications and advise as to the applicants' qualifications. On November 1, 2004, plaintiff advised Russo that only one applicant, Michael O'Hagen, a Caucasian male, was qualified. Subsequently, on November 4, 2004, plaintiff was informed that Bell had been hired.*fn1 On November 15, 2004, plaintiff was also advised that Fred Sutton, a City resident and employee, and an African-American, was being transferred from the City's Mercantile Division and provisionally appointed a Code Enforcement Inspector.
As with Bell, plaintiff considered Sutton unqualified and throughout the month voiced his objection to the hiring of both in a series of memoranda beginning on November 4, 2004, to Alston, Russo, a union representative, the City's Solicitor, the Personnel Director, and ultimately the State Department of Personnel (DOP). Russo responded in a November 23, 2004 memorandum, advising plaintiff that it was "the decision of the appointed Authority as to who would be hired and assigned to the Code Enforcement Office or any other City office, which was the City's policy and which was to be strictly adhered to." Thereafter, plaintiff allegedly "was summoned" to a meeting with Russo and Alston, where he was informed that Bell and Sutton were to be trained as Code Enforcement Inspectors, and that there was no further need to write memoranda to Alston since they physically worked in the same office.
Plaintiff continued voicing his objection. On December 1, 2004, he sent a letter to the DOP Commissioner reporting the City's alleged unlawful practices of hiring unqualified inspectors. On December 7, 2004, plaintiff sent another memorandum to the Commissioner supposedly providing additional information regarding the hiring of Bell and Sutton. On December 9, 2004, plaintiff sent a memorandum to Russo on the same subject.
In the meantime, on September 22, 2004, plaintiff learned through his involvement and deposition in an unrelated federal lawsuit initiated by his former supervisor alleging reverse discrimination and hostile work environment, that Alston, whom he believed not qualified to be Chief, had misrepresented his qualifications in his application to the DOP for that position in 1995. Consequently, plaintiff reported this information to the DOP on December 17, 2004, and in follow-up correspondence on December 22, 2004, requested an agency investigation.
On January 12, 2005, plaintiff received a letter from the DOP's Director of the Merit System Practices and Labor Relations advising that it had requested the City to conduct an investigation into plaintiff's allegations and take appropriate action. Subsequently, on January 13, 2005, plaintiff filed a complaint with the City's Business Administrator and Solicitor requesting an investigation of Alston's alleged falsification of his employment qualifications. Plaintiff also wrote to the DOP's Division of Human Resource Management requesting an investigation of a promotion and raise received by Alston at some unspecified time.
As a result of a February 8, 2005 meeting, the City's Assistant Business Administrator directed the City Solicitor to "launch an investigation at once . . ." into the allegations that Alston falsified his application. The City ultimately determined that despite the misrepresentation on his application, "Alston was qualified for the position [as Chief] at the time of his promotion."
Obviously, the working relationship between plaintiff and Alston deteriorated, prompting a February 15, 2005 memorandum to both from Russo concerning morale in the Code Enforcement Office:
In sum, we expect you both to act as Supervisors. We heard your individual complaints and we attempted to remedy your concerns. However, the City of Atlantic City needs to function and personal differences must be controlled. A non-hostile work environment must be maintained.
Of course, the Administration is sympathetic to your concerns, but your individual differences must not affect your co-workers in the Division. As always, I am available if you have any questions of concerns.
The very next day, plaintiff wrote to Russo informing him that Alston, despite having his own vehicle, had been using the city vehicle assigned to plaintiff during and after work hours. One day later, plaintiff again wrote to Russo advising that the previous afternoon, February 16, 2005, Alston and a co-worker left work early "without advising" him, "[l]eaving no one in charge to handle the office." Plaintiff claimed that this had happened on previous occasions, and he had informed Russo many times of Alston's "lack of communications [sic], supervision, and direction." Finally, plaintiff advised Russo that the clerical staff has told him that "they do not feel comfortable asking [Alston] technical questions due to their experience of getting incorrect answers of misinformation." He claimed these incidents "lend to the hostile environment and frustrations that are taking place here in this office" as Russo was "made aware of and acknowledged on several occasions."
On March 31, 2005, plaintiff wrote to the City's Affirmative Action/Equal Employment Opportunity Officer Barbara Camper, formally complaining of a hostile work environment, retaliation, harassment, and discrimination. He cited the hiring of Bell and Sutton, who he said were unqualified for the position, and Alston's alleged falsifications. For the first time, plaintiff alleged that O'Hagen, the Caucasian applicant who was qualified but not hired, "has been the subject of discrimination by Gary Alston and others with in [sic] the City." Plaintiff also advised Camper that he had filed an "official complaint with the City Solicitor, Business Administrator and the D.O.P.," but that "the City ha[d] not done anything about the situation."*fn2
According to plaintiff, he was retaliated against because of his various complaints. For instance, on December 10, 2004, Alston informed him by memorandum that his work location was being moved:
I have tried to work with you on a professional basis for the last few months and have not been successful. I can not work in a negative atmosphere and be productive. Your attitude, snide remarks[,] and your general demeanor can no longer be tolerated. You have even had the audacity to put a rear view mirror on your computer directed at me.
Four months later, on April 14, 2005, Alston reassigned plaintiff out of the office they shared into "the outer office [which was] the area formerly used by the account clerk[,]" and his computer remained at its former location. Alston explained the reasons for the move in a memorandum of the same date:
For the last two (2) months, I have been basically silent to your allegations and demeanor. I sat in the office that we share and heard you on the phone talking to State Officials as to the status of documents that you requested as to my application. You have had conversations with attorneys as to the validity of some case that you are prepared to bring forth against the City of Atlantic City. You have gone to the length of installing a rear-view mirror on your computer to watch me daily. There is a photo on your wall of a group picture of all the inspectors in 1997, you took a sticky note pad and covered my face. This may sound petty, but this clearly is harassment that I will no longer tolerate. You have single handily [sic] tried to destroy this department by creating a division among all the inspectors.
Effective immediately, your work location shall be moved to the location once occupied by the Sr. Account Clerk. At that location, you will be closer to the inspectors in the outer office. This will give you a better opportunity to be close to them, to oversee there [sic] daily activities.
At this time, I can no longer be in a hostile work environment and share an office with you in your current mind set [sic].
Director Russo and I on many occasions have tried to offer you some motivation, but to no avail. Please note your current computer shall stay in its current location as per my observations it has not been used for City business.
At the time of the move, plaintiff was "promised an office that was formerly used by Director Russo" when the department completed its planned move to another location. After the move, plaintiff was initially placed in a cubicle*fn3 but eventually "moved to the former office that was where the director used to be."
On the same day his office was relocated, plaintiff took sick leave for four weeks. On May 17, 2005, upon returning to work, plaintiff requested to take off three vacation days - May 26, May 27 and June 7, 2005. In a memo dated May 18, 2005, Alston granted the request for June 7, but denied it as to the two other days, noting that plaintiff had just returned on May 16 after being out of work for four weeks; that the staff and he "ha[d] taken on a tremendous workload" during plaintiff's absence; and that he had already scheduled his own vacation time for the end of May.
As noted in Alston's memo, during this time, because the Office of Code Enforcement was short-handed, a backlog of inspections developed. In fact, on February 24, 2005, Alston received a letter from an attorney complaining that his client's inspection applications where "pending for more than 10 days, in violation of the Atlantic City ordinance," and that repeated calls to the Code Enforcement have gone unanswered. The attorney threatened legal action if the matter was not resolved "immediately."
According to Russo, a meeting was held to discuss the backlog and "code officers" offered to "do whatever they have to do to get caught up . . . ." As a result, on March 8, 2005, Alston wrote to plaintiff directing him to do "re-inspections for all inspector's [sic] until the overload is relaxed." According to Alston, instead of complying, plaintiff simply "redistributed the re-inspections to the inspectors contrary to [Alston's] directive . . . ." When questioned, plaintiff supposedly said that Alston "need[ed] to put it in writing . . . ." Consequently, on March 10, 2005, Alston wrote to plaintiff describing the incident and stating, "[y]ou shall do all re-inspections until further notice."
In yet another action considered retaliatory by plaintiff, on July 26, 2005, Alston issued a memorandum to "all neighborhood service personnel" noting that he has observed employees leaving without signing out in violation of the department's policy. He directed that "[e]ffective immediately all personnel shall end there [sic] day in the office and sign out according to the time they leave for the day." Alston also reminded employees that the work hours were from 8:30 a.m. to 4:00 p.m. and that they "do not make [their] own work hours" unless they are first discussed with him. The next day, July 27, 2005, plaintiff forwarded Alston's memorandum to the Vice President of the Union "asking for her assistance as he believed he was again being retaliated against" since he was one of the few individuals who had an alternative work schedule. Subsequent memoranda from the Business Administrator, dated September 1, 12, and 26, 2005, directed at all City employees delineated the sign-in and -out policy.
In addition to the conditions of employment imposed by Alston and the City as just described, plaintiff also alleges he was retaliated against in matters of pay, including out-of-title compensation; a five percent salary increase; and a pay raise to $65,000. By way of background, plaintiff is a member of the Union, and his employment relationship with the City is governed by a collective bargaining agreement (CBA). As it relates to out-of-title pay, the CBA provides:
Article XV - WORK SCHEDULE AND OVERTIME
I. When authorized by Department Head, persons working in higher classifications will be paid in higher classifications for hours in said performance.
As far back as October 7, 2002, Cappella issued a memo to all department heads that "out-of-title" pay was to be approved by "the Appointing Authority." Cappella reiterated the policy in a memo of January 30, 2003, emphasizing that "[n]o one has the authority to authorize an out-of-title assignment without the written approval of the Appointing Authority."
Apparently, a dispute arose under the provision sometime in early 2004, with plaintiff claiming that Russo and Alston had "denied him out-of-title pay when filling in for Chief Alston during absence[s]," totaling 23.5 days from January 1, 2004 to December 3, 2004, and Russo maintaining that part of plaintiff's job title was to "assume command when [Alston] was absent." As a result, plaintiff filed a grievance on August 12, 2004. Russo responded in a memorandum of August 18, 2004, stating the policy that "out-of-title pay would be approved only when Russo was advised in advance that someone would be out of work for two or more days, or if a true emergency arose and required someone to assume the duties of the employee's superior."
The dispute resulted in a new out-of-title pay policy issued in a memorandum from the Business Administrator dated January 18, 2005, requiring the completion of a form for out-of-title pay and reiterating that this form must be submitted to the Department Head and Appointing Authority for approval. Plaintiff responded on January 20, 2005, critiquing the prior practice of Alston and Russo in "choos[ing] to single [him] out and discriminate against [him], by trying to treat [him] differently then [sic] that of other employees within the same department." On February 2, 2005, the Business Administrator issued a "revised policy" addressing plaintiff's concerns. On February 8, 2005, plaintiff and the City entered into a "memorandum of understanding" granting plaintiff payment for the 23.5 days in 2004 that plaintiff claimed to have been denied out-of-title pay.
Plaintiff also grieved other pay issues. On September 29, 2003, plaintiff filed a grievance claiming entitlement to a pay increase to $65,000 per his union contract, commensurate with an increase provided to Sub-Code Officials in the Construction Department, which was denied. He filed another grievance on the same issue on March 30, 2004.
Plaintiff filed yet another grievance on May 21, 2004, this time seeking a five percent increase of his base salary in accordance with his union contract for having obtained "the required licensing," and retroactive to May 16, 2002, the day he acquired licensure.*fn4
Both pay increase issues were arbitrated on December 21, 2004. As to the five percent pay increase, the parties reached a settlement which entitled plaintiff to a five percent pay increase "retroactive to ten (10) working days prior to the filing of the grievance, which is May 7, 2004." As to the pay increase to $65,000, the arbitrator found for the City and, therefore, denied plaintiff's grievance.
On June 1, 2005, plaintiff filed a complaint against the City, Langford, Russo and Alston, claiming retaliation in violation of the LAD and CEPA. After answers were filed and discovery completed, defendants moved for summary judgment. Following arguments held on February 22, 2008, the motion judge granted defendants summary judgment, dismissing plaintiff's complaint in its entirety.
With specific regard to plaintiff's claim that he engaged in protected activity under the LAD when he tested Bell, found him to be unqualified, and recommended that he not be hired, the judge noted that there was no evidence that a qualified Caucasian had applied for the position, that there was any mention of Bell's race, or any suggestion, for that matter, of reverse discrimination. Therefore, the judge concluded that plaintiff had not engaged in protected activity under the LAD. However, he found that plaintiff had engaged in protected activity under the LAD on March 31, 2005, when he filed a complaint with the AAO/EEOC alleging that Bell had been hired over a qualified Caucasian as a result of his race.
As to plaintiff's allegations of retaliation, the judge found that the "alleged retaliatory conduct did not result in anything that would have been materially adverse to a reasonable employee or job applicant and would not dissuade a reasonable worker for making or supporting a charge of discrimination." Specifically, as to plaintiff's grievances concerning a five percent pay increase and a base pay increase to $65,000, the judge reasoned that "[a]ll material events concerning those grievances occurred before that letter was sent to Ms. Camper by the plaintiff" and that "there were legitimate disputes . . . that are not uncommon when it comes to the interpretation of the collective bargaining agreement."
Concerning the sign-in and -out and out-of-title pay policies, the judge found that "they . . . applied to a broad range of employees . . . ." He noted that most of the incidents alleged to be retaliatory were "plaintiff's subjective view" of retaliation. With specific regard to plaintiff's office location move on April 14, 2005, although the judge "credit[ed plaintiff's] testimony that he did not" attach a mirror to spy on Alston or block his photo, he noted that plaintiff "never dispute[d] . . . that he was making calls to a number of agencies in Alston's presence, complaining about Alston[,]. . . [that] he wanted Alston fired . . . [and] that he was talking on the telephone about a lawsuit that he was preparing against the City. . . ." The judge concluded that "when you consider all of that, the moving of his office, in and of itself, cannot be found by an objective juror to be retaliatory action." And as to the computer, the judge noted that "there [was] no indication . . . that the computer was a necessary part of what . . . [plaintiff] did during the day." Moreover, the judge found there was no record evidence that Alston or Russo were even aware of the fact that plaintiff had filed a discrimination complaint with Camper when the decision to temporarily move his office location was made. The judge concluded, when you consider the entire context, separating an employee 10 feet away from another employee whom the plaintiff employee is making no bones that he wants fired, that he wants terminated, but without any direct evidence linking the person who moves him to . . . someone of retaliatory conduct based on reverse discrimination, there's no . . . method for a reasonable juror to conclude there was a nexus or that the action of someone who doesn't know that the plaintiff has made that written complaint, moving his desk would dissuade a reasonable worker from making or supporting a charge of reverse discrimination.
Accordingly, the court granted defendants' motion for summary judgment as to plaintiff's LAD claim.
On plaintiff's CEPA claim, "giving [plaintiff] the benefit of all reasonable inferences," the judge found that advising defendants on March 16, 2004, that Bell should not be hired because he was unqualified "could be protected activity."
However, plaintiff's claim that he was retaliated against by having to file grievances for a five percent salary increase and for a pay raise to $65,000 was found to be without basis since the underlying facts and the City's denial predated the March 2004 incident. On this score, the judge noted that by consistently denying the pay raises, the City "did not do anything other than exercise [its] rights under the collective bargaining agreement to go through the multi-step process and eventually . . . have a binding arbitration as required under the . . . Public Employee Relations Act and before the Public Employee Relations Commission." Therefore, the judge found no nexus between plaintiff's protected conduct and the grievances filed. He concluded similarly with respect to plaintiff's grievances for out-of-title pay, noting that "[plaintiff] was asserting that he had been deprived of out-of-title pay back as far as January 2004," and thus "[t]his wasn't an instance as he attempts to imply, where the City started depriving him of outof-title pay and treating him differently after March 16 of 2004."
The judge did find that plaintiff's deposition in the Erhart matter in September 2004, as well as his various complaints during November and December 2004 over the hiring of Bell and Sutton, constituted protected conduct, but again lacking any nexus because the pay raise and out-of-title grievance procedures "were well along their way in advance by the time of this activity in September, October, November, and December."
The sign-in and -out policy was found applicable to the entire department and all City employees, and in any event there was no evidence to support plaintiff's claim that it "somehow was a pretext for singling him out." Indeed, the only arguable evidence was plaintiff's "statement that somehow he had an alternative arrangement with Russo," involving alternate work hours, which was unrelated to the sign-in and -out policy. In fact, there was no evidence that the policy altered any such arrangement.
The judge also noted that plaintiff was not demoted and did not suffer any reduction in salary. As for his re-inspection assignment being a "de facto demotion," the judge found no evidence in the record that there was an "objective perception . . . that [plaintiff] was demoted" especially in light of the fact that plaintiff admitted that the office was understaffed.
Concerning plaintiff's claim that he suffered adverse employment actions through a series of minor incidents that created a hostile work environment, the judge found "no evidence other than [plaintiff's] subjective view on that issue." As an example, the judge noted that there was "no testimony . . . cited . . . that suggests anyone else in the department had that perspective." Indeed, the only arguable evidence is a memorandum from Russo indicating that "both Alton and [plaintiff], because they couldn't get along, were affecting the efficiency and morale of the department," which the judge found did not support plaintiff's claim of a hostile work environment. As to plaintiff's claim of harassment because "he noticed that Alston wasn't talking to him anymore," the judge reasoned that in light of plaintiff's "unveiled, non-secretive attempts to have the City, the State, or anyone else that would get interested, investigate Alston and terminate his employment . . . [plaintiff] couldn't reasonably, and no one could objectively, expect that Alston would be happy about that and continue to be warm and fuzzy with [plaintiff]." And finally, as to plaintiff's claim that the office move was retaliatory, the judge noted that he was "not even sure" how moving plaintiff's office and taking the computer "impacted . . . on [plaintiff's] job when his job was to inspect places outside of the City." Accordingly, the judge granted defendants' motion for summary judgment as to plaintiff's CEPA claim and dismissed plaintiff's complaint with prejudice.
On appeal,*fn5 plaintiff raises the following issues:
I. THE LOWER COURT IMPROPERLY ASSUMED THE ROLE OF FACTFINDER IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS AND FAILED TO MAKE ALL INFERENCES IN FAVOR OF THE PLAINTIFF AS REQUIRED UNDER R. 4:46-2(c).
II. THE LOWER COURT ERRED IN FINDING THAT NO JURY COULD FIND A CAUSAL LINK BETWEEN PLAINTIFF'S PROTECTED CONDUCT UNDER CEPA AND THE LAD AND THE ALLEGED RETALIATION.
A. The Lower Court Correctly Held that Plaintiff Engaged in Protected Conduct Under CEPA and That Certain of Defendants' Conduct Was a Direct Response to the Protected Conduct, But Erred in Dismissing Said Retaliatory Conduct as Understandable.
B. The Lower Court Correctly Held that Plaintiff Engaged in Protected Conduct Under the LAD, But Erred in Making a Factual Determination That No Reasonable Jury Could Find That Defendants Could Not Have Known About the Protected Conduct Prior to a Certain Date or That None of the Retaliatory Conduct Could Have Been Related to the Protected Conduct.
C. The Lower Court Failed to Consider Whether a Reasonable Jury Could Infer a Causal Link Between Plaintiff's Protected Conduct Under CEPA and the LAD, As Required Under Controlling Law, and Did Not Consider That the City's Stated Justifications for the Alleged Acts Were Pretext for its Retaliatory Motive.
1. An Array of Types of Evidence May Support the Finding of a Causal Connection Between Protected Conduct and Retaliation and Direct Evidence of Retaliatory Motive is Not Required to Prove Causation.
2. The Court Erred in Failing to Make All Inferences in Favor of Plaintiff by Determining that Defendant's Treatment of Plaintiff in Response to Plaintiff's Protected Conduct Could Not Have Been Retaliatory and Never Reached the Burden Shifting Analysis.
D. The Lower Court Applied the Wrong Standard in Determining What Constitutes Retaliation Under CEPA and the LAD.
1. Verbal Displays of Animus and Uneven Application of Policy Can Constitute Retaliatory Harassment.
2. Loss of Status, Clouding of Job Responsibilities, Diminution in Authority, and Disadvantageous Transfers or Assignments Can Constitute Retaliatory Harassment.
3. A Withdrawal of Benefits Formerly Provided to an Employee Can Constitute Retaliation.
4. Separate but Relatively Minor Instances of Behavior Directed Against an Employee May Combine to Make Up a Pattern of Retaliatory Behavior.
5. A Jury Can Infer Retaliation From a Series of Adverse Employment Actions.
6. The Significance of Any Given Act of Retaliation Must be Considered in Context, Not Isolation, and Any Adverse Treatment That is Based on a Retaliatory Motive and is Reasonably Likely to Deter the Charging Party or Others from Engaging in Protected Activity is Prohibited.
E. The Dismissal of Plaintiff's CEPA and LAD Claims Must be Reversed and This Matter Must be Remanded for Trial on Plaintiff's Claims.
1. The Dismissal of Plaintiff's LAD Claim Must be Reversed and This Matter Must Be Remanded for Trial on Plaintiff's Claims.
2. The Dismissal of Plaintiff's CEPA Claim Must be Reversed and This Matter Must Be Remanded for Trial on Plaintiff's Claims.
After consideration of these arguments, in light of the record and applicable law, we affirm.
Stripped to its barest essentials, plaintiff argues that the Law Division erred as a matter of law in granting relief to defendants, and that genuine issues of material fact require a trial of his claims.
In reviewing the trial court's summary judgment order, we are guided by well-established standards. A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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." Brill, supra, 142 N.J. at 528-29 (quoting R. 4:46-2(c)). These same familiar standards apply on appeal on our de novo review of the trial court's grant of summary judgment. N.J. Div. of Taxation v. Selective Ins. Co., 399 N.J. Super. 315, 322 (App. Div. 2008).
Moreover, in determining the existence of a genuine issue of material fact, mere "'conclusory and self-serving assertions' in certifications without explanatory or supporting facts will not defeat a meritorious motion for summary judgment." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder v. Buechel, 183 N.J. 428, 440 (2005) (internal citations omitted)). Therefore, "summary judgment cannot be defeated if the non-moving party does not 'offer any concrete evidence from which a reasonable juror could return a verdict in his favor[.]'" Housel for Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App. Div. 1998) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed. 2d 202, 217 (1986)).
The LAD protects employees from discrimination because of, among other things, race, color, or national origin. N.J.S.A. 10:5-4. To prove a cause of action for retaliation under the LAD, as alleged here, a plaintiff must show that: (1) he or she engaged in a protected activity known to defendant; (2) he or she was subjected to an adverse employment decision; and (3) there was a causal connection between the two. Pilkington v. Bally's Park Place, Inc., 370 N.J. Super. 140, 150 (App. Div. 2003), rev'd on other grounds, 180 N.J. 262 (2004); see also Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995) (same).
"[A]ctions that affect wages, benefits, or result in direct economic harm qualify [as retaliation]. So too, non-economic actions that cause a significant, non-temporary adverse change in employment status or the terms and conditions of employment would suffice." Victor v. State, 401 N.J. Super. 596, 616 (App. Div. 2008), certif. granted, 199 N.J. 542 (2009). "[E]motional factors alone cannot constitute adverse employment action." Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420 (App. Div. 2001), aff'd in part rev'd in part, 174 N.J. 1 (2002); see also El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145 (App. Div. 2005) (nurse's demotion from a scrub nurse to a break nurse when looked at in conjunction with her personnel records, which contained numerous complaints regarding plaintiff's work performance, did not amount to adverse employment action under the LAD); Beasley v. Passaic County, 377 N.J. Super. 585, 607 (App. Div. 2005) (actions resulting in a "bruised ego" are not covered by CEPA)*fn6 (quoting Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 47 (App. Div.) (temporary reassignment is generally not actionable), certif. denied, 185 N.J. 39 (2005)); Cokus v. Bristol-Myers Squibb Co., 362 N.J. Super. 366, 379 (Law Div. 2002) (supervisor's decision to no longer socialize with employee is not adverse employment action), aff'd, 362 N.J. Super. 245, 246-47 (App. Div.), certif. denied, 178 N.J. 32 (2003); Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div.) (generally, emotional distress alone is not actionable), certif. granted, 174 N.J. 191 (2002), appeal dismissed, 177 N.J. 217 (2003).
If plaintiff establishes a prima facie case of retaliation, the burden shifts to defendants to prove that a legitimate, non-retaliatory reason for their actions existed. If defendants meet this burden of production, then plaintiff must prove that defendants had a retaliatory motive by proving either that the proffered reason is pretext or by demonstrating that a retaliatory reason is more likely what motivated defendants' actions. Shepherd, supra, 336 N.J. Super. at 418; Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996).
It is well-settled that CEPA is designed to "prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998); see also N.J.S.A. 34:19-3. "[T]he offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." Mehlman, supra, 153 N.J. at 188. To establish a cognizable CEPA claim, an employee must show that:
(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. 34:19-3(c);
(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).]
Under CEPA, retaliation is defined as the "discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). CEPA like LAD, is "broad, remedial legislation" and therefore "must be construed liberally." D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007).
Applying these principles to the facts of record, plaintiff engaged in protected activity under the LAD at the latest on March 31, 2005, when he officially complained to defendant's AAO/EEOC officer of discriminatory hiring practices. Although his earlier objection in November 2004 to the hiring of Bell and Sutton, as well as his September 22, 2004 deposition, made no mention of race, we assume for the sake of argument that these too constituted protected conduct under the LAD, and, as to the former, under CEPA. Even so, plaintiff has failed to substantiate a valid cause of action under either the LAD or CEPA for want of any proof he suffered the requisite adverse employment consequences imposed as a reprisal for any whistle-blowing or LAD-protected activity.
In this regard, plaintiff contends that he suffered the following adverse employment actions: not receiving pay raises as per his union contract, not being paid for out-of-title work, assigning plaintiff re-inspections, suggesting that plaintiff stated that "$65,000 would make this go away," being prohibited from speaking to the City Solicitor about Alston's investigation, having his office moved and computer taken away, denying him vacation time, taking away his "long standing and previously approved use of a flexible schedule," "defendants' attempt to wall [his] workplace in to create a jail cell" and Alston's silent treatment. In our view, the factual record does not reasonably support plaintiff's claim that these actions, either individually or collectively considered, amount to the proscribed statutory "retaliation" as a matter of law.
First,*fn7 employer actions underlying plaintiff's formal grievances all predated his earliest protected conduct of either March or November 2004, and a fortiori cannot be considered retaliatory in nature. Indeed, plaintiff's grievance, claiming that he was entitled to a pay increase to $65,000, was initially filed on September 29, 2003. His grievance relating to the five percent pay increase per his union contract, although filed on March 30, 2004, claimed that he was entitled to retroactive pay from May 16, 2002. Similarly, plaintiff claimed to have been denied out-of-title pay from at least January 1, 2004, well before he engaged in any protected activity. In our view, the mere fact that plaintiff utilized the bargained-for contract mechanism to resolve his pay disputes with defendant while continuing to engage in protected activity, does not render the underlying employer activity retaliatory. To the contrary, the arbitrator determined that plaintiff was not entitled to the same salary ($65,000) as the Sub-Code officials, and that the effective date of his five percent salary increase was May 7, 2004, not the May 2002 date claimed by plaintiff. When plaintiff is afforded the very forum to resolve employment disputes that his CBA provides, he cannot claim that defendant's substantiated positions therein are retaliatory. As for the favorable settlement of his out-of-title pay claim on February 8, 2005, less than two months after his December 22, 2004 submission of a global grievance claiming a total of 23.5 days, we conclude no reasonable employee would have found the challenged action materially adverse such that he or she would be dissuaded from raising a discrimination or any other claim amounting to protected activity. Burlington N. & Sante Fe R.R. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed. 2d 345, 359 (2006).
The remaining actions claimed to be retaliatory, all occurring after plaintiff's March 2004 objection to Bell's qualifications, fare no better. The assignment to conduct re-inspection on March 9, 2005, which plaintiff claims is a de-facto demotion, is not, in our view, an adverse employment action because it was temporary. See Victor, supra, 401 N.J. Super. at 616 (noting that adverse employment actions constitute "non-temporary adverse change in employment status or the terms and conditions of employment") (emphasis added); Klein, supra, 377 N.J. Super. at 47 (holding that temporary reassignment is generally not actionable). Indeed, plaintiff does not claim that he was assigned to conduct re-inspections on a permanent basis, and there is no evidence that there was more than one incident in which plaintiff was directed to conduct re-inspections. Moreover, the Department's March 9, 2005 assignment decision, as well as its May 18, 2005 partial denial of plaintiff's vacation request, were supported by substantial reasons, which plaintiff has failed to refute. Indeed, it is undisputed that both decisions occurred at a time when the Code Enforcement Department was understaffed and backlogged with work.
In the same vein, plaintiff's office move on April 4, 2005, was temporary. Plaintiff himself admits to knowing it was temporary since he stated that when he was moved to the cubicle, he was "promised an office that was formerly used by Director Russo" when the department completed their planned move to another location, which was eventually fulfilled. See, e.g., Shepherd, supra, 336 N.J. Super. at 420 (finding the alleged harassment insufficient to establish an adverse employment decision because while the "[plaintiff] did transfer [locations], though hardly 'voluntary,' his transfer ultimately worked out well for him, and he was happier in his new assignment.") Of course, not only was the move temporary, but it was occasioned by plaintiff's own conduct, which forecloses his present complaint. In this regard, we agree with the motion judge, who found plaintiff spent several months engaging in "unveiled, non-secretive attempts to have the City, the State, or anyone else that would get interested, investigate Alston and terminate his employment" by alleging that Alston had falsified his credentials and had "an extensive criminal background."
We find no suggestion of retaliation in the July 26, 2005 sign-in and -out policy that was issued and applied to the entire department and facially appears to be a sound exercise of management discretion. Absent is any proof, other than plaintiff's own subjective belief, that the policy specifically targeted him. Plaintiff also offers no proof that Cappella's allegedly defamatory statement on April 1, 2005, adversely affected his work conditions. See Beasley, supra, 377 N.J. Super. at 607 (actions resulting in a "bruised ego" are not covered by CEPA). We find Alston's general unfriendliness similarly not actionable, and in any event, plaintiff offers no proof that his work conditions were negatively impacted thereby. Cokus, supra, 362 N.J. Super. at 378 (supervisor's decision to no longer socialize with employee is not adverse employment action).
Simply put, the factual record here fails to demonstrate a genuine issue of material fact as to the essential statutory requirement of retaliation in the form of any adverse employment action suffered by plaintiff. We, therefore, conclude that plaintiff has failed to substantiate a valid cause of action under the LAD or CEPA.