July 14, 2011
JOSEPH J. POTENA, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY BOARD OF PUBLIC UTILITIES, JEANNE M. FOX, LANCE R. MILLER AND MICHAEL WINKA, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2974-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 25, 2010
Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.
Plaintiff Joseph J. Potena appeals from a January 23, 2009 order dismissing his CEPA*fn1 complaint against defendants State of New Jersey Board of Public Utilities (BPU), the BPU's then-president Jeanne M. Fox (Fox), and the BPU's then-chief of staff Lance R. Miller (Miller) with prejudice pursuant to Rule 4:40-2(a) after a jury was unable to reach a verdict following a full trial on plaintiff's claims. He also seeks to appeal the dismissal of his claims against defendant Michael Winka (Winka). Because plaintiff's proofs were insufficient to establish a CEPA violation, we now affirm.
We summarize the pertinent evidence as follows. Plaintiff has been employed as the BPU's Chief Fiscal Officer since 1994. The BPU regulates the rates charged and services provided by certain public utilities and addresses complaints of utilities customers. The BPU is "in, but not of" the Department of the Treasury (Treasury). Plaintiff worked for the BPU in other capacities when it was in the Department of Environmental Protection (DEP) and was involved in restructuring the BPU's financial office in 1994 when it was transferred to Treasury.
As Chief Fiscal Officer, plaintiff is in charge of the BPU's Office of Budget and Finance and is responsible for producing the agency's annual budget and assuring that expenditures comply with all legal requirements. To fulfill his duties, plaintiff must interact with the BPU's division directors and upper management.
In 2002, plaintiff began reporting to Miller, who had been named the BPU's Chief of Staff by Fox, the BPU's newly appointed President, rather than reporting directly to the BPU President. From the start, plaintiff had an uncomfortable working relationship with Fox and Miller. Plaintiff did not like reporting to the Chief of Staff instead of the President. He also had a negative impression of Miller based upon a "reputation that [he] was aware of" and a negative impression of Fox based upon his first conversations with her. In addition, plaintiff did not like having Fox and Miller require him to post a vacancy in 2003, rather than allow him to hire the person he wanted without posting. A contentious struggle over this issue continued for about one year until plaintiff prevailed in early 2004. Miller also had negative feelings about plaintiff because he believed plaintiff was not "a team player."
In March 2003, the BPU created the Office of Clean Energy (OCE), which was responsible for implementing the State's Clean Energy Program and promoting energy efficiency and the development of renewable energy resources. The OCE was headed by defendant Winka, who also reported to Miller. Winka did not supervise plaintiff or control plaintiff's pay or benefits.
A Clean Energy Council (the Council) was established to advise the OCE and the BPU Commissioners on organizing and administering the Clean Energy Program, including the societal benefit funds collected by utilities from their customers, which funded the program. The Council recommended that the Clean Energy Program be administered by the OCE and recommended that the societal benefit funds be held by a fiscal agent outside Treasury. This recommendation addressed a concern that, if the funds were placed in a state account, Treasury would have the ability to "lapse" them into the general fund and use them to balance the state budget, rather than fund the Clean Energy Program.
In September 2003, the BPU adopted orders accepting the Council's recommendations. The BPU also approved a contract with Wachovia Bank to serve as the fiscal agent. The three signatories on the Wachovia account were Fox, Miller, and Winka.
In the fall of 2003, Miller and Winka on behalf of the OCE negotiated with Rutgers University's Center for Energy, Economic, and Environmental Policy for its evaluation of the BPU's energy efficiency and renewable energy programs, and a letter of intent was issued. However, the final contract was not executed until the following summer.
Before that happened, plaintiff found a copy of the draft BPU-Rutgers contract on his desk. His review of the document caused him to be concerned about its funding source, the payment of eighty to ninety percent of the funds to subcontractors (possibly violating rules on procurement), and the identity of the signatory for Rutgers, Scott Weiner, who was a former BPU President. He also believed that maintaining the Wachovia account outside the State's accounting system violated various rules and regulations promulgated by Treasury.
Plaintiff first spoke to Winka and Miller about the contract in January 2004 and spoke to them again that March. Both Winka and Miller responded to his inquiries by stating that he should not worry about it; it was none of his business; no state or taxpayer funds were involved and, therefore, there was no need to comply with Treasury rules and regulations; and there was approval for the transaction from the Governor's office and the BPU. Plaintiff was not persuaded and continued to raise his concerns with others. That spring, he communicated with the BPU ethics officer and in-house attorneys, who communicated the issues to Fox and several Deputy Attorneys General.
In late February or early March 2004, plaintiff also spoke directly with Fox about his concerns. In-house discussions at BPU continued through at least June 2004. Plaintiff was dissatisfied with the responses to his inquiries so he raised the issues with people at Treasury, including David Ridolfino, the Deputy Director of the Division of Administration; Charles Chianese, the Associate Deputy State Treasurer, Director of Administration, and Chief Financial Officer; and Kenneth Kutch, an analyst in the Office of Management and Budget (OMB).
People at Treasury began to inquire about plaintiff's complaint, communicating with both Fox and Miller. In August 2004, Treasury began an audit of the OCE. The parties stipulated that Treasury found as follows:
In or about August 2004, the State of New Jersey, Department of Treasury, Division of Administration, Internal Audit Unit commenced an audit of financial transactions related to the [OCE's] Clean Energy Program. On or about December 8, 2004, the Treasury's Internal Audit Unit prepared a Confidential Memorandum the subject of which was "Draft Report-Office of Clean Energy/Board of Public Utilities."
The draft report raised issues concerning the operations of OCE and corroborated [plaintiff's] statements to [Treasury] that the BPU did not comply with certain Treasury Circular Letters when it opened the Wachovia checking account off the State's accounting system without assistance from the [OMB] and when it contracted with [the] Rutgers Center for Energy, Economics and Environmental Policy. The BPU responded to the draft Treasury Report arguing that the circulars were not applicable in both circumstances.
From January 2004 until the trial of this matter, plaintiff refused to work on matters arising from the Clean Energy Program or any contracts with Rutgers. At various times, plaintiff also instructed his staff not to work on such matters, although Treasury later advised him that he could not do so. Plaintiff also questioned whether a number of defendants' additional business transactions complied with Treasury rules and regulations. This led to a series of disagreements between plaintiff, Miller, and Winka. In several instances, individuals from Treasury were called in to resolve those disputes.
There were two notable disputes with Miller during this time period. First, in July 2004, plaintiff refused to approve two contracts sent to him by Miller. Winka came to speak with plaintiff about the contracts, and they argued. Thereafter, plaintiff received a telephone call from Personnel regarding Miller's inquiry about bringing insubordination charges against him.
Second, in early August 2004, Miller visited plaintiff's office and thanked him for bringing in the auditors from Treasury. Plaintiff told Miller to stop patronizing him and said that management of the BPU was "piss poor." Miller threatened him with insubordination charges if he did not lower his voice, although no such charges were ever filed.
In September 2004, Treasury advised Fox that, effective November 1, 2004, it would begin serving as the fiscal and procurement agent for the BPU's Clean Energy Program. In the fall of 2004, however, Treasury decided to service the entire BPU because it was not feasible to provide services only to the Clean Energy Program. This decision was reportedly at the request of Fox. This request later led to an Inter-Departmental Agreement (IDA).
At meetings held in November and December 2004, Treasury briefed the BPU, including plaintiff and his department, about the IDA. Plaintiff did not object to Treasury's plan, although he and his staff expressed some concern about what their roles would be.*fn2 A formal IDA was signed on January 14, 2005. Under the IDA, Treasury provided oversight and support services to the BPU on fiscal, budgeting, procurement, and grant activities.
In his complaint, plaintiff alleged CEPA violations and intentional infliction of emotional distress.*fn3 The matter was tried between September 8 and 29, 2008. During the trial, plaintiff testified that defendants retaliated against him by implementing the IDA and by maintaining it longer than necessary. He claimed that the IDA constituted a takeover of the BPU's fiscal operations, which had the effect of reducing his level of responsibility. Although he remained involved in those matters, he explained:
A. . . . The amount of work that I do is so minimalized and so brought down to such a lower level that my skills have not been utilized in the last four years.
I basically have nothing of any significance to do. I've been reduced to a level that I never thought I would get to after all these years of service.
Q. You say that . . . you have been demoted. Although you still have the title of chief fiscal officer, why do you feel that you've been demoted?
A. Well, demotion is not just simply a demotion in pay or a change in title. There's a demotion of status. There's a demotion of prestige. There's a demotion of the quality of work that we're assigned.
I've been placed on what is termed throughout [s]tate government when people, when political appointees and people in power don't want to deal with civil service employees because they have something to say and work for the tax payer [sic], they're commonly referred to as being placed on a shelf.
I've been placed on a shelf to rot so far as being demoted, that's the demotion that I've taken for the last four or five years.
Plaintiff testified that the reason for the reduction in his responsibilities was that, under the IDA, Treasury had final authority to electronically authorize expenditures. Plaintiff no longer had that authority. Therefore, at Treasury's direction, plaintiff's "security profile" was reduced, which reduced his involvement in fiscal matters.*fn4
Plaintiff admitted that he had the same job title and job description, the same responsibilities for managing the fiscal office, and the same reporting relationship to the Chief of Staff. Also, he remained the individual at the BPU with the most authority over fiscal and budget matters; Treasury would not approve any expenditure without his signature.
Kutch explained that after the IDA, plaintiff maintained the same responsibilities and level of authority that he had previously; the only difference was that Treasury "push[ed] the button" to electronically generate a payment. Similarly, Ridolfino explained that it was still necessary for plaintiff to fulfill the role of Chief Fiscal Officer for the BPU:
[W]e provide services to a lot of Treasury divisions and a lot of other [agencies that are] in but not of's [sic]. I don't pretend to know the business of taxation, I don't pretend to know the business of the [BPU]. I rely on the people that operate in the trenches there to know that business.
So when they're certifying off on a document, I'm assuming that at least the technical aspect of that document is correct. I'll look at it for the procurement, for the fiscal and all that other kind of stuff. But for the most part, I'm relying on those offices to make sure that everything else is correct.
Plaintiff also claimed that defendants retaliated against him by hiring Beth Sztuk in 2005. He alleged that her hiring constituted a "firing" and "replacement" of him. That year, Fox was faced with two vacancies on her five-person senior staff: the Executive Director had resigned to take another job and the Chief Economist had retired. The BPU had major on-going projects at that time, including a petition by Exelon to merge with PSE&G and the preparation of a draft energy master plan. In need of assistance, Fox reached out to Sztuk, whom she knew from the Economic Development Authority and the Clean Energy Council. Sztuk began work with the BPU on September 12, 2005, under the title of Chief Financial Officer. She worked for the BPU until June 2006, when she left to work for the School Construction Corporation. Plaintiff was on medical leave for about six months of Sztuk's nine-month tenure.
Ridolfino testified that Treasury considered terminating the IDA in September 2005 after the BPU hired Sztuk. However, Miller responded that the timing was not appropriate because plaintiff had filed this lawsuit and because Sztuk's duties had nothing to do with plaintiff's areas of responsibility.
Fox testified that the IDA has been kept in place because it was working well. She further stated that Treasury's involvement with the BPU was still necessary because plaintiff refused to work on the Clean Energy Program, and it was impossible for Treasury to limit its involvement to only that program.
Sztuk's job duties at the BPU included oversight of the Division of Administration and Audits, the Offices of Communications and the Economist, and the Office of the Business Ombudsman. She oversaw the major financial issues with which the BPU dealt, such as, the deregulation of certain industries, the merger of PSE&G and Exelon, and the financing of new technologies. Sztuk never met plaintiff, never supervised him, and never worked with him. Plaintiff admitted that his job duties did not change after Sztuk was hired, and he had no knowledge that Sztuk ever performed any of his duties. Fox specifically had the description of Sztuk's position altered so that Sztuk had no responsibility for the fiscal office; plaintiff continued to report to Miller.
The crux of plaintiff's complaint about Sztuk was her starting title. He became upset when he learned that she was hired as Chief Financial Officer. He believed that he had been replaced, because although he held the title of Chief Fiscal Officer, not Chief Financial Officer, he had in the past been referred to as the BPU's Chief Financial Officer. When Fox learned of this concern, she had Sztuk's title changed to Chief Operating Officer about six to seven weeks after she was hired.
Plaintiff also claimed defendants retaliated against him because his fellow employees ostracized him. After he blew the whistle, he no longer heard from colleagues who used to routinely call or stop by his office for advice or assistance. He felt like "a prisoner[,] a man on an island by [him]self." Plaintiff's secretary testified that he had fewer phone calls, meetings, and visitors than previously; however, she could not identify by name any person who no longer spoke to plaintiff. Another employee in the BPU's Trenton office, who worked near plaintiff but under Winka's supervision, testified that the atmosphere in the office was uncomfortable; people kept their distance from plaintiff because they knew that he did not get along with Winka; and they did not want anybody to believe that they were on plaintiff's side. Plaintiff presented no evidence that any of the defendants instructed people not to speak with him. Plaintiff's supervisors, Miller and Noreen Giblin, understood that plaintiff was communicating with everyone necessary to do his job. Giblin stated that she spoke to plaintiff regularly, and he attended many budget meetings with her. Similarly, Ted Kukowski, an employee at the OMB, testified that he worked closely with plaintiff on BPU's budget.
Defendants also presented evidence that working with plaintiff became difficult after he blew the whistle, causing people to voluntarily steer clear of him. Both Kutch and Chicqueta Britton-Nutt, the BPU's Director of Administration, testified that they avoided plaintiff because of things he said about the IDA, Fox, Miller, and Winka.
Finally, plaintiff testified that, as a result of defendants' retaliatory acts, he suffered both physically and emotionally. He felt as though his career was over. He admitted, however, that he was not discharged, suspended, or disciplined in any way. He retained the same title and had not suffered any diminution in salary, benefits, or perquisites associated with his job. Further, he continued to receive regular salary increases.
Pretrial, defendants moved to strike the expert report of plaintiff's cardiologist, Dr. Michael Lux, and to preclude testimony relating to plaintiff's heart attack.*fn5 Plaintiff opposed the motion, but the judge granted it by order and opinion dated April 9, 2008. Plaintiff moved for leave to appeal, but we denied the motion. Also pretrial, defendants moved to exclude the draft audit report prepared by Treasury. The judge ruled under N.J.R.E. 403 that the document could not be admitted in its entirety. However, he encouraged the parties to agree to a stipulation of relevant facts, and they ultimately did so.
At the close of plaintiff's evidence at trial, defendants moved for judgment under Rule 4:40-1. The judge granted the motion in part, dismissing the complaint as to Winka,*fn6 and limiting the jury's consideration of adverse employment actions to three alleged acts of retaliation: (1) implementation of the IDA; (2) the hiring of Sztuk; and (3) professional isolation and ostracism. At the close of all of the evidence, defendants again moved for judgment under Rule 4:40-1, in part on the ground that plaintiff had not proven any adverse employment actions taken in retaliation for his whistle blowing. The judge reserved decision pursuant to Rule 4:40-2(a).
On September 29, 2008, after two days of deliberations, the jury reported that it was unable to reach a complete verdict. The jury found that plaintiff reasonably believed that an activity, policy, or practice of the BPU violated the law and was fraudulent or criminal, and that he disclosed that activity, policy, or practice to a supervisor or public body, objected to it, and refused to participate in it. However, the jury could not agree as to whether plaintiff suffered any adverse employment action in retaliation for his whistle blowing.
Post-verdict, defendants reasserted their motion for judgment under Rule 4:40-1, arguing, among other things, that there was insufficient evidence for a jury to find that defendants retaliated against plaintiff. The judge heard argument on December 12, 2008, and granted the motion by written opinion and order dated January 23, 2009.
The judge addressed each of plaintiff's three claims of retaliation separately. As to plaintiff's claims of retaliation based on the implementation of the IDA, its terms, and its continuation, the judge found that its implementation was "consistent with Treasury policy and ha[d] historical precedent." He further found that "[t]he IDA was designed by Treasury and implemented by Treasury. No evidence adduced support[ed], directly or inferentially, plaintiff's allegation that [the] BPU was responsible for input in the structuring of the IDA in order to adversely affect him." He pointed out that the IDA caused across-the-board changes, not ones targeted at plaintiff, and those changes were de minimis. As to its continuation, he concluded:
Finally, the very continuation of the IDA is a matter of plaintiff's complaint. However, the assertion that this constitutes an adverse employment practice is without substance. In the first instance, the IDA is a curative measure and should be applauded by plaintiff as it comes about as a result of his actions. Secondly, it does not adversely target plaintiff and can not [sic], in any way, be considered as a vindictive employment practice. This being so, it[s] continuation does not change its character. And, it is certainly understandable that there would be a reluctance to effect change while under the cast of the long shadow of this litigation. Without doubt, everyone at [the] BPU is [a]ffected in someway [sic]. The impact on any given person, of course, depends on [the] sensibilities of the employee.
With respect to plaintiff's claims of retaliation based on the hiring of Sztuk, the judge found that no reasonable mind could conclude that her hiring was an adverse employment action. He reasoned that her background was entirely different from plaintiff's, she was hired to serve as a member of a management team, and her duties did not conflict with those of plaintiff. Further, her employment had no effect on plaintiff's authority and responsibilities. She was hired while plaintiff was on leave, and her title was changed when plaintiff expressed concern about it.
As to the alleged personal isolation and ostracism, the judge found that plaintiff discharged his job duties and responsibilities, interacting with others at the BPU, Treasury, and the OMB. He continued to be consulted on budgetary and financial matters, supervised his staff, and had sign-off authority. The judge found no evidence to suggest that changes in the way plaintiff was treated by others were the product of retaliation rather than normal workplace reticence in dealing with an employee who has brought suit against his employer. "Lawsuits create difficulties for all." He concluded by observing that "the critical question is whether [the] BPU encouraged or brought about the changes perceived and complained of by plaintiff" and answered the question "no" because "[t]he record speaks for itself." The order dismissing plaintiff's complaint was filed on January 23, 2009, and this appeal followed.
Plaintiff contends on appeal that the judge erred in granting the Rule
4:40-1 motion after the jury was not able to reach a verdict because
the judge did not comply with that rule, did not apply the appropriate
test for such a dismissal, improperly weighed the evidence, and
decided the issues as though he was the trier of fact. Plaintiff also
asserts that the judge erred in dismissing the complaint against Winka
under Rule 4:40-1 at the close of his proofs at trial.*fn7
Plaintiff further argues that the judge mistakenly exercised
his discretion in denying him the opportunity to introduce the draft
audit report because it was relevant and probative evidence that
defendants violated rules and regulations and were motivated to
retaliate against him. Additionally, he disputes the judge's exercise
of discretion to exclude expert testimony respecting his heart attack.
Finally, he urges that the jury charge did not properly explain the legal basis
The standard for granting a judgment at trial pursuant to Rule 4:40-1 after the close of a plaintiff's evidence at trial or the close of all of the evidence is well-settled and is derived from Rule 4:37-2(b), which governs involuntary dismissals. Dolson, supra, 55 N.J. at 5.
In the case of motions for involuntary dismissal, the test is, as set forth in [Rule] 4:37-2(b) and equally applicable to motions for judgment, whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deducted therefrom, reasonable minds could differ, the motion must be denied. The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. [Id. at 5-6 (emphasis added) (citations omitted).]
Our review of an order dismissing a complaint pursuant to Rule 4:40-1 is the same as the standard governing a trial judge. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).
As in a summary judgment motion, we must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 536 (1995) (internal quotation marks and citation omitted). If, giving the Board the benefit of the most favorable evidence and inferences to be drawn from that evidence, "reasonable minds could differ" as to the outcome, the contested issues must be submitted to a jury. Dolson[, supra,] 55 N.J. [at] 5-6. However, if the evidence and uncontradicted testimony is "so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury." Ferdinand v.
Agric. Ins. Co., 22 N.J. 482, 494 (1956). [Id. at 269-70.]
With respect to plaintiff's claims regarding the judge's discretionary rulings, such rulings will not be reversed on appeal absent a showing of a mistaken exercise of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A judge's decision will constitute a mistaken exercise of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Plaintiff contends that a jury issue was presented as to whether defendants took any adverse employment action against him in retaliation for his whistle blowing. He urges that the judge erred in granting defendants' motion for a directed verdict under Rule 4:40-1.
Preliminarily, plaintiff contends that the judge erred in considering all of the evidence introduced at trial, including the evidence presented by defendants, when ruling on their Rule 4:40-1 motion. He urges that the judge should only have considered his affirmative proofs and the inferences to be drawn therefrom. Although that constraint exists upon a motion to dismiss under Rule 4:37-2(b), Verdicchio v. Ricca, 179 N.J. 1, 30-31 n.4 (2004), the judge was not so limited on defendants' Rule 4:40-1 motion made at the close of all evidence, Castro v. Helmsley Spear, Inc., 150 N.J. Super. 160, 164 (App. Div. 1977) (holding that the judge is required "to consider whatever evidence the defendant presents when ruling on the motion made at the close of all the proofs"). Thus, here the judge was required to credit all of plaintiff's evidence, draw all reasonable inferences in his favor, and then, considering all of the evidence, determine whether any reasonable jury could find retaliation. That is precisely how the judge analyzed the issues before him. As a consequence, we turn to the issue of whether the judge properly applied the legal standard to the facts.
CEPA "is intended to encourage employees to speak up about [employer actions] that violate the law or public policy and to provide protection for those who do so." Donelson v. DuPont Chambers Works, ___ N.J. ___, ___ (2011) (slip op. at 25). CEPA is a civil rights statute. Its purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Consistent with that purpose, CEPA must be considered "remedial" legislation and therefore should be construed liberally to effectuate its important social goal. [Abbamont v. Piscataway Bd. of Educ., 138 N.J. 405, 431 (1994).]
CEPA prohibits "[a]n employer [from taking] any retaliatory action against an employee because the employee" engages in protected activity. N.J.S.A. 34:19-3; accord Donelson, supra, slip op. at 26. It is undisputed on appeal that plaintiff engaged in protected activity, and the issue before us is only whether the evidence respecting retaliation required submission to a jury.
CEPA defines "[r]etaliatory action" 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). Thus, employer actions affecting the terms and conditions of employment but falling short of discharge, suspension, or demotion, constitute adverse employment action. Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005).
What constitutes an "adverse employment action" must be viewed in light of the broad remedial purpose of CEPA, and our charge to liberally construe the statute to deter workplace reprisals against an employee speaking out against a[n employer's] illicit or unethical activities. Cast in that light, an "adverse employment action" is taken against an employee engaged in protected activity when an employer targets him for reprisals[.] [Donelson, supra, slip op at 29.]
Retaliation "need not be a single discrete action." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003). It "can include . . . many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct." Ibid. However, to constitute "retaliatory action" under CEPA, the action must have had a significantly negative effect on the employee's terms and conditions of employment. See generally Beasley v. Passaic Cnty., 377 N.J. Super. 585, 606-09 (App. Div. 2005) (discussing retaliatory action under CEPA).
Because CEPA is a civil rights statute, like the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17, we employ the same analytical approach in CEPA cases as we employ in LAD and Title VII cases.*fn8 In considering whether there has been retaliation under CEPA, relevant factors include "the employee's loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees," as well as "assignment to different or less desirable tasks." Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002) (considering claim of retaliation under the LAD), aff'd in part and modified in part on other grounds, 179 N.J. 425 (2004);*fn9 accord Maimone v. City of Atl. City, 188 N.J. 221, 236-37 (2006) (transfer from detective position to patrol duty constituted adverse employment action under CEPA as it resulted in lower compensation and lost benefits); Nardello, supra, 377 N.J. Super. at 435-36 (finding that denial of firearms instructor training, coerced resignation from SWAT team, denial of work on crime prevention programs, removal from detective bureau with supervisory authority taken away, and assignment of demeaning jobs not commensurate with the plaintiff's rank as lieutenant could "combine to demonstrate a pattern of retaliatory conduct").
Some employer actions do not constitute retaliation under CEPA, even though the employee is negatively affected by them. Nardello, supra, 377 N.J. Super. at 434. Incidents that cause a "bruised ego or injured pride," Beasley, supra, 377 N.J. Super. at 607 (internal quotation marks omitted), Klein v. University of Medicine & Dentistry of New Jersey, 377 N.J. Super. 28, 46 (App. Div.), certif. denied, 185 N.J. 39 (2005), or that make an employee's job "mildly unpleasant" but do not have a substantial impact on the terms and conditions of employment, Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002), appeal dismissed, 177 N.J. 217 (2003), are insufficient to prove actionable retaliation. With these principles in mind, we examine plaintiff's three allegations of retaliation.
Plaintiff asserts that he presented the following evidence of retaliation, all of which the judge ignored: (1) the implementation of the IDA; (2) Fox's own admission that she asked Treasury to take over all of the BPU's financial and fiscal duties, which occurred after Fox and plaintiff could not resolve their discussions, and Ridolfino's testimony that Treasury was doing so; (3) the loss of his job duties and the reduction in his financial authority to a level equal to his subordinates; (4) Ridolfino's testimony that he asked Miller and Sztuk to take back the fiscal duties after Sztuk was hired, which was rejected because his lawsuit was pending; (5) the continuation of the IDA for almost five years although defendants could have terminated it; (6) Sztuk being hired as the new Chief Financial Officer; and (7) the ostracism and isolation he suffered as a result of his whistle blowing. Continuing, plaintiff also claims retaliation in the form of: (8) confrontations between plaintiff and defendants after the Treasury audit began; (9) Miller's threats of insubordination on two occasions and his attempt to file insubordination charges; (10) Fox's attempt to intimidate and threaten him into not suing; (11) the effort of Miller and Winka to force plaintiff to authorize the Rutgers contracts even though they violated Treasury rules and regulations; (12) Miller's attempt to intimidate him three days after the audit began; and (13) the "campaign" of Miller and Winka to threaten him with loss of vacation time, their dissatisfaction with his work despite his prior and current good performance, and their complaints to Treasury about him.
First, as to plaintiff's retaliation claims (1) through (7), we affirm substantially for the reasons expressed by the trial judge in his written opinion dated January 23, 2009. We add only that the IDA was not retaliatory because it was applied uniformly to all, as other employees in the BPU fiscal office were affected by the IDA in a manner similar to plaintiff. See, e.g., Smith v. Twp. of E. Greenwich, 519 F. Supp. 2d 493, 512 (D.N.J. 2007) (changes in promotional requirements were not retaliatory where they were not targeted at the plaintiff), aff'd, 344 F. App'x 740 (3d Cir. 2009). Additionally, the facts relating to Sztuk's employment and short-lived job title do not amount to adverse employment action. See Beasley, supra, 377 N.J. Super. at 607; Klein, supra, 377 N.J. Super. at 46. In addition plaintiff presented no evidence that defendants instructed anyone not to speak to him. "The fact that [plaintiff's] co-workers and superiors chose to limit their contact with [him] to business only and otherwise ignored [him] . . . neither creates a hostile environment nor adverse action under CEPA." Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 382-83 (App. Div. 2002).
Finally, we find no merit in plaintiff's retaliation claims (8) through (13), in part because some of these arguments were not raised below, such as plaintiff's contention that defendants retaliated against him based upon the incidents in which Miller threatened him with charges of insubordination and complained about him to Treasury. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Others, although undoubtedly unpleasant for plaintiff, simply did not affect the terms and conditions of his employment, given that he suffered no loss of pay, was not demoted, and was not even given a poor performance review. Workplace conflict alone does not constitute retaliation, as embarrassing and unpleasant as it may be. Beasley, supra, 377 N.J. Super. at 607; Klein, supra, 377 N.J. Super. at 46; Hancock, supra, 347 N.J. Super. at 360. These allegations are simply insufficient to prove actionable retaliation.
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the remaining issues presented by plaintiff are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). Those issues are the exclusion from evidence of the entire draft Treasury audit report, error in the jury charge, and the exclusion of any evidence from plaintiff's expert relating to plaintiff's heart attack.
We note that the Treasury report addressed many issues unrelated to plaintiff's CEPA claims and the judge acted well within the discretion accorded him in controlling the submission of evidence at trial pursuant to N.J.R.E. 403. Brenman v. Demello, 191 N.J. 18, 31 (2007); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Further, it is clear from the parties' stipulation that plaintiff was not harmed by the exclusion of the entire report.
With respect to the jury charge and the exclusion of medical evidence, these issues are moot because we have affirmed the dismissal of plaintiff's complaint under Rule 4:40-2(a).