July 16, 2010
HERBERT H. SHAW, PLAINTIFF-APPELLANT,
NEWARK PUBLIC LIBRARY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7604-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Rodríguez and Chambers.
Plaintiff Herbert H. Shaw appeals from the trial court order of December 19, 2008, dismissing his claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. He contends that he was disciplined and terminated from his employment in retaliation for complaints he made about the conditions at the Newark Public Library where he was employed. Defendant Newark Public Library (the Library) maintains that the disciplinary measures taken were justified and that plaintiff was terminated from his employment because he took an unauthorized leave of absence. The Library also contends that plaintiff's CEPA claim is barred by the statute of limitations. We affirm, concluding that the CEPA claim with respect to the disciplinary actions is time barred and that plaintiff's CEPA claim with respect to his termination was properly dismissed because he failed to come forward with proofs establishing a causal connection between his protected activity and his termination from employment.
We apply the same standard as the trial court when we review a trial court order granting summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must look at the competent evidence "in the light most favorable to the non-moving party" and determine whether that evidence is "sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Summary judgment is appropriate if, after applying this test, we determine that no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c).
Plaintiff began his employment at the Library in 1989 where he worked as a stationary equipment repairer. He contends that during the course of his employment he came across dangerous conditions involving a malfunctioning fire alarm system, fire doors that violated governing safety standards, and exposed asbestos leaking into the general air ducts. As a result, from 2002 until as late as July 2005, plaintiff wrote to various governmental agencies advising them of these problems.
During his employment with the Library, plaintiff encountered some disciplinary problems. In April 2002, he was suspended for a period of ten days for calling the director of the library a "liar" in a letter to the director and for addressing his supervisor with profanity. In 2004, an employee complained in writing that he acted in a "belligerent and contentious manner" toward her in the presence of librarians from other libraries. In 1995, this same employee had complained that plaintiff had done work in the women's restroom without propping the door open or putting a sign on the door indicating that he was there. In July 1999, the director sent a memorandum to plaintiff advising him that he must wear closed shoes at work. Plaintiff does not dispute that these events occurred nor does he present any evidence that the disciplinary measures taken were improper or disproportionate to treatment of others.
In September 2005, the Library terminated plaintiff's employment due to his unauthorized absence from work for a period of five days. At his deposition, plaintiff admitted that he had requested the month of August off in 2005. However, his boss told him that he could only take two weeks because a new employee was starting and they could not lose plaintiff for that length of time. Despite failing to obtain permission to do so, plaintiff did not report to work the entire month of August. He did not call nor did he produce any documentation of illness during this period. As a result, plaintiff was terminated from employment. At plaintiff's request, a hearing was held on his termination on September 13, 2005. The Final Notice of Disciplinary Action states that he was removed from his position for his unauthorized absence for five consecutive days, August 25, 26, 29, 30 and 31, 2005. The effective date of the removal was September 13, 2005. Plaintiff filed and subsequently withdrew an appeal from the Office of Administrative Law.
Plaintiff then filed his CEPA complaint on September 11, 2006. On December 19, 2008, the trial court entered summary judgment in favor of the Library concluding that the claims were barred by the statute of limitations and that plaintiff failed to show a causal connection between his complaints about conditions at the Library and his termination.
On appeal, plaintiff contends that he has made out a prima facie case under CEPA, maintaining that he has set forth proofs that he had a reasonable belief that the Library was engaging in an unlawful activity, that he disclosed the wrongdoing to a supervisor, and that a causal connection exists between his whistle-blowing activities and the adverse employment action.
We first address whether plaintiff's claim is barred by the statute of limitations. CEPA claims are governed by a one year statute of limitations. N.J.S.A. 34:19-5. The statute provides that "[u]pon a violation of any of the provisions of this act, an aggrieved employee or former employee may, within one year, institute a civil action in a court of competent jurisdiction." Ibid. (emphasis supplied).
Because plaintiff's termination appears to have been formalized on September 13, 2005, and this suit was brought on September 11, 2006, his CEPA claim for wrongful termination is within the one year time frame and is timely. However, his CEPA claim involving the other disciplinary actions are untimely because they occurred years before he filed this lawsuit. We recognize that incidents that occurred more than one year before suit is filed are not barred if they are part of a continuing violation. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447-48 (2003). However, plaintiff has failed to argue on appeal a continuing violation. Indeed, the disciplinary actions taken against plaintiff do not reflect a continuing pattern. The disciplinary actions appear to be discrete acts; they are few in number; they were taken over a lengthy period; and the most recent one predates plaintiff's termination by a number of years. Further, plaintiff does not deny that he engaged in the asserted conduct nor does he demonstrate that the employer unfairly disciplined him for the conduct. Whistleblowing "does not insulate the complaining employee from discharge or other disciplinary action for reasons unrelated to the complaint." Higgins v. Pascak Valley Hosp., 158 N.J. 404, 424 (1999).
We next address whether plaintiff has made out a prima facie CEPA claim with respect to his termination. CEPA allows a cause of action for retaliatory discharge. Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 103 (2008). The statute is designed "to protect and encourage employees who report illegal or unethical workplace activities." Donelson v. DuPont Chambers Works, 412 N.J. Super. 17, 29 (App. Div. 2010). It does so by proscribing retaliation against employees "who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Ibid. (quoting Dzwonar v. McDevitt, 177 N.J. 451, 464 (2003)). We liberally construe the CEPA statute in order to further this important goal. Ibid.
In order to make out a cause of action under CEPA, a plaintiff must establish the following four elements:
(1) that he or she reasonably believed that his or her employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he or she performed whistle-blowing activity described in N.J.S.A. 34:19a, c(1) or c(2); (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. [Id. at 30 (quoting Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999)).]
While the Library disputes plaintiff's contention that he has proven the first, second and fourth element, we will focus on the fourth element, that is, the need for a causal connection between plaintiff's whistle-blowing activity and his termination. In order to establish this element, plaintiff must come forward with proofs that would allow a rational fact finder to conclude that "his protected, whistle-blowing activity was a determinative or substantial, motivating factor in defendant's decision to terminate his employment - that it made a difference." Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div. 2001). This requirement may be met "by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action" including the closeness in time between the adverse employment action and the protected activity. Maimone v. City of Atl. City, 188 N.J. 221, 237 (2006).
With this law in mind and giving the plaintiff the benefit of all the favorable inferences that may be drawn from the evidence, based on this record, we conclude that no rational fact finder could determine that a causal connection exists between plaintiff's termination and any protected activity. Plaintiff does not dispute the fact that he took the extra days off in August, despite his employer's refusal to approve his request to do so.
Plaintiff presents no evidence that the discipline imposed was disproportionate to his misconduct or to the treatment that others received for similar misconduct. He makes no claim of constructive discharge. Indeed, even an employee who is subjected to retaliation in the workplace contrary to CEPA, "is expected to take all reasonable steps necessary to remain employed." Donelson v. Dupont Chambers Works, supra, 412 N.J. Super. at 31. Plaintiff acknowledges that no one in a position of authority at the Library ever threatened him, told him to "back off," or told him he would lose his job over his complaints. As a result, no reasonable inference may be made from the circumstances that plaintiff was discharged in retaliation for any whistle-blowing activities. Accordingly, the trial court properly granted summary judgment to the Library.
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