On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2301-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and J.N. Harris.
In a complaint filed on April 13, 2005, plaintiff Edward DiMaggio alleged that defendant Novartis Pharmaceuticals Corporation (Novartis) violated the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, when it terminated his employment. Following a trial and a no-cause verdict, Novartis filed a motion for counsel fees and costs under the fee-shifting provision of CEPA, N.J.S.A. 34:19-6; the frivolous litigation statute, N.J.S.A. 2A:15-59.1; and Rule 1:4- 8. Novartis appeals from an order denying its application. We reverse and remand for further consideration and findings with respect to defendant's claim that plaintiff's case was "based on lies."
Plaintiff began working for defendant in June 2002, as an investigations manager in the security department. Plaintiff alleged in his complaint and at trial that his termination was in retaliation for making two anonymous telephone calls to "AlertLine," defendant's confidential call reporting system, which allowed employees to report any improper or illegal activity that might be taking place. Plaintiff claimed he telephoned AlertLine on two separate occasions in February 2004 to report that Mike Burns, one of plaintiff's supervisors, had received an improper benefit from a contractor that did work for Novartis and that Burns's supervisor, Ron Sira, knew about it and took no action.
Novartis, on the other hand, claimed plaintiff did not make the anonymous AlertLine calls in February 2004; the Alertline calls had nothing to do with plaintiff's termination; and plaintiff was fired in November 2004 for poor performance, including improper interview techniques. In his summation, defendant's attorney argued that plaintiff was an "opportunist" and that the lawsuit was based on his false representations:
Mr. DiMaggio has manufactured this lawsuit out of whole cloth. He's an opportunist. He seized upon the fact that nine months prior to his termination, nine months, there was an AlertLine call, an anonymous AlertLine call that he is claiming credit for.
There is conclusive evidence that Mr. DiMaggio did not make the calls that we talked about, that his termination was not because of these calls, but rather, in fact, because of his poor performance. Let me [be] blunt. In order to believe Mr. DiMaggio, you have to disbelieve every single witness in the case, because by his testimony he told you that every single person, whether it's Kelly Mnich talking about the circumstances of termination, whether it's Jack Repsha talking about whether or not he was able to go back and get his personal goods, we can go down the line, every single person was lying.
Now let's look at Mr. DiMaggio's testimony for a second and whether or not it was truthful. His law enforcement background, his disability, that's how we started this case. [Plaintiff's attorney] opened up with Mr. DiMaggio [as] a hero cop injured on the job. And he got on the stand, turned towards you, and told you that he would have still been a cop except he was involved in a brutal, head-on collision in which an aspiring gang member tried to kill him because it was part of a gang initiation that they needed to kill a cop.
Was that true? Well, after the dust settled on that one, what did we learn? We learned that there was nothing to do with a gang, this wasn't gang-related. It wasn't a head-on collision, it was [a] hit from the back . . . . [T]he most serious charge that anybody faced in this incident that Mr. DiMaggio talked about [was] reckless driving. Completely manufactured out of whole cloth, and that's how he started with you.
His salary before he came to Novartis. Well, depending upon whether you believe an application, whether you believe his tax returns, or it's somewhere in the middle, it was either $76,000 because that's what he told the federal government, and that's what he put on some applications; it was $109,000 because that's what he told Novartis. Clearly, he either misled the federal government, which we'll talk about in a second, he misled Novartis, or both.
Mr. DiMaggio came before you and claims that he made these AlertLine calls. Had he made the AlertLine ...