August 10, 2012
GEORGE AYAD, PLAINTIFF-APPELLANT,
CITY OF JERSEY CITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3552-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued March 14, 2012
Before Judges Messano, Kennedy and Guadagno.
Plaintiff George Ayad appeals from the Law Division's order granting summary judgment to defendant, City of Jersey City (the City), dismissing plaintiff's amended complaint alleging violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (CEPA). We have considered the arguments raised in light of the motion record and applicable legal standards. We affirm.
The motion record revealed that, beginning in 1996, plaintiff worked for the Division of Commerce (the Division), part of the City's Department of Housing, Economic Development, and Commerce (HEDC), first as a fiscal analyst and later as an administrative analyst. The Division was responsible for enforcing ordinances regarding City-issued licenses, including the licensing and inspection of taxicabs.
The title "administrative analyst" was held by many employees in various departments of the City, and the specific duties of each administrative analyst differed both from each other and from the official job description issued by the State Department of Personnel (DOP). Plaintiff processed complaints against licensees received from constituents, performed field inspections and investigations, initiated appropriate enforcement actions, prepared reports, made bank deposits for the Division and directed the Division's bi-annual taxicab inspections. Plaintiff carried a "badge" that identified him and aided his enforcement duties.
At some point, plaintiff complained to Len Greiner, the Division's director, that the City's ordinances regulating the age of taxicabs were being violated. Greiner was replaced by Maynard Woodson, the Division's assistant director and who, in the past, had reported to plaintiff. Plaintiff testified at his deposition that his relationship with Woodson was "volatile."
Plaintiff reiterated his complaints about ordinance violations to Woodson. In October 2004, plaintiff requested and was granted a leave of absence because of "frustrations at work that [he] couldn't deal with . . . ." Plaintiff returned to work briefly in February 2005 for approximately two weeks and again left, disputing the need to submit medical clearance letters to the City's personnel department.
On July 6, 2005, plaintiff filed a complaint alleging that the City had retaliated against him in violation of CEPA. The case proceeded to trial, and, in January 2007, a jury awarded plaintiff $40,000 in economic damages and $40,000 in pain and suffering. The judge entered an order of judgment on March 19, 2007 that also awarded plaintiff counsel fees of $68,595.74 and costs of $7,262.77.
When plaintiff returned to work at the Division on April 2, 2007, a former license inspector, Paul Barna, was the new director, and Woodson was the acting assistant director. Barna also previously had reported to plaintiff, but plaintiff's relationship with him was "fine." Barna told plaintiff that his duties had changed, and he "was no longer allowed to issue summonses, conduct any investigations, and [he] was not allowed to perform any field work." Plaintiff acknowledged that Barna wanted him to create an operations manual for the Division. Plaintiff testified that he did not believe Barna was retaliating against him but simply following orders from the director of HEDC. Plaintiff no longer was issued a badge.
Barna told plaintiff it was necessary for him "to perform more administrative tasks." Barna also issued a memorandum to all staff advising that "excluding ABC and Weights & Measures," "all complaints . . . [would] be handled by [plaintiff]." In June, Barna issued another memorandum advising staff that "after completion of the investigation" of "all complaints," the inspectors were required to "file the completed report with [plaintiff]."
Plaintiff acknowledged there were "[o]ne or two" more inspectors in the Division when he returned than when he left in 2005. He testified, however, that, upon his return, he was "just basically [doing] clerical" work and not performing "in the capacity of [a] manager."
Plaintiff thought he would be assigned an office as in 2005, but Barna told him none was available and assigned plaintiff a cubicle near the door. Plaintiff overheard one of his co-workers, Pat Montone, say "why would he return back to work." Plaintiff also testified that while working at his desk, Woodson would "whisper things in [his] ear," such as, "you didn't win anything in court, we still get to do whatever we want."
Plaintiff acknowledged that upon his return to work, he began looking through the Division's files because he believed certain documents produced during the prior litigation were fraudulent. When a local newspaper reporter called, plaintiff indicated that files were missing from the Division. An article containing plaintiff's claim appeared in the Jersey Journal the next day.
In May 2007, plaintiff filed complaints with the City's Equal Employment Opportunity/Affirmative Action Officer. One dealt with Montone's behavior. The EEO Officer advised that the subject of plaintiff's complaints was not her responsibility. Plaintiff lodged a second complaint regarding the lack of security at his office. The EEO/AA officer never responded. Plaintiff also complained to the Occupational Safety and Health Administration (OSHA) about the lack of security. OSHA sent an inspector and advised the complaint was not within OSHA's jurisdiction. Plaintiff testified that his co-workers derided him over his security concerns.
Also in May, plaintiff sent a letter to the City's Corporation Counsel.
Please note that on May 22 & 23 2007 [sic] The [sic] Division of Commerce conducted it's [sic] bi-annual taxi inspections at Public Works. For the last 10 years I've always been responsible and charge in of [sic] these taxi inspections. Now I'm barred from even participating in them because of the ongoing retaliation for previously reporting improprieties at the taxi inspections and in my office. Without proper monitoring and supervision the taxi inspection could become a breeding ground for corruption, one inspector was arrested because of the his [sic] activities at the taxi inspections. A police investigation at the taxi inspection in pervious [sic] years reported "Ayad and Barna are the only two inspectors failing cabs" and for doing my job properly and with integrity, I am punished, discredited and excluded from engaging in operations & enforcement of my office.
I've been denied a shield, a summons book, and conducting field investigations upon my return to work and now I am not allowed to be involved in the taxi inspections, all these duties are part of my job. I am a sworn officer of the court and yet the City has prevented me from preforming [sic] my duties with no explanation or reason except for the fact that I report violations and criminal activities occurring in my office which is [sic] cause of this retaliation. I will not be subjected to this type harassment [sic] and discrimination again.
A complaint will be filed in New Jersey State Superior Court.
Despite reference to "violations and criminal activities," when deposed, plaintiff could not identify any rule, regulation or statute that had been violated. Barna and Woodson did not receive copies of the letter.
In 2005, the City had hired Jack Coyne as an administrative analyst assigned to the Division. When plaintiff returned to work in 2007, Coyne was doing the inspections and field work plaintiff previously had done. Additionally, the City paid Coyne approximately $12,000 more per year. Plaintiff testified that this was in retaliation for his CEPA complaint and successful trial. On May 31, plaintiff's attorney wrote to the Corporation Counsel's Office complaining that in addition to keeping him from performing his former job duties, the City was retaliating against plaintiff "for winning his jury trial" and "a look at [plaintiff]'s salary . . . [would] also demonstrate that the harassment of [plaintiff] continue[d]."
In April 2007, the City announced a promotional examination for the position of "Assistant Director of Licenses." Plaintiff thought he was eligible for the position and applied to sit for the promotional exam. On June 13, DOP informed plaintiff that he was not eligible to sit for the exam because the "announced title does not represent a promotion."
Plaintiff believed that "the [C]ity and the [S]tate . . . worked in conjunction to come up with that decision to not allow [him] to take the test." On June 13, he wrote the City's Director of Personnel requesting a list of all personnel assigned to the Division, including "their official title and . . . status." The City responded on June 28. Plaintiff also filed an administrative appeal of DOP's decision.*fn1
In the interim, on June 22, plaintiff again wrote to Corporation Counsel. Noting that his title was "considered higher then [sic] Assistant Director of Licenses," plaintiff stated, "I am not obligated to take any directives from . . . Woodson or any other staff in the Division, my title enables me to oversee all operations of the Division." Plaintiff continued:
I am demanding that you send a memo notifying all staff members in the Division they are to take directives from me. If any personnel in the Division refuses to take directives from me I will personally write them up for insubordination. If you have any objections to this arrangement then I will request The New Jersey Department to conduct a desk audit of the entire Division Plaintiff's attorney again wrote complaining that plaintiff "d[id] not understand how Mr. Coyne, who had the same title as [plaintiff], received the promotion for the very position that [plaintiff] was denied an opportunity to promote into. . . ."
On June 15, plaintiff complained that his vacation, sick and personal days were being taken from him. Plaintiff wrote to the Corporation Counsel:
If my Days [sic] are not restored by 3:00 pm today June 15, 2007 in writing along with all the days that were taken from me for the years 2005 & 2006 I will file a complaint and a grievance with the Office of Attorney Ethics against the entire Jersey City Law Department for unethical and unlawful practice.
The Personnel Department informed plaintiff that his days had been prorated, since he began work in April, not January 1, 2007. In his deposition, plaintiff testified that he understood the policy and that it was "fine."
Plaintiff testified that one day, Woodson told him a towing operator might come to the Division's office to make a refund to a customer who had complained about being overcharged. Woodson told plaintiff to take the payment, even if it was in cash. Plaintiff claimed this was against the City's policy and secretly recorded a phone conversation he had with Woodson and Barna regarding the subject.
Plaintiff: . . . What do you expect me to do? A tower to come in and I'm supposed to take cash from him? What am I gonna do with it? Put it in my pocket. Put it in a drawer.
Woodson: Write a receipt that you took cash.
Plaintiff: Oh, [come on] we don't do that.
Woodson: You don't do that.
Plaintiff: No, our policy is that, we don't handle cash.
Woodson: Where's the policy?
Plaintiff: I mean, I've been here longer than you've been workin' here.
Woodson: What does that mean though? Plaintiff: That, it's common knowledge. We don't deal in cash.
Woodson: You say that. That's your opinion
Woodson: . . . I don't have a problem with cash because the guy paid cash, the guy was coming right back for it. We give the guy direct cash, we write out a receipt for Easy Tow, we write out a receipt for the guy that we gave them cash money . . . It's not a problem.
Plaintiff: 'Cause I told Paul I was very uncomfortable accepting cash from a tower. Woodson: Well I never asked you to accept anything though.
Plaintiff: Well, that's not . . . well maybe I did misunderstand . .
Woodson: I never asked you to take cash.
Woodson: Was there a conversation, or a conflict, or a concern about us taking cash back, George said that he . . .
Barna: George said that he had a concern about it. Umm. We only did it once. Normally our policy has been check or money order.
Plaintiff: That's . . . what I thought. I was under the impression that we're not allowed . . .
Barna: No. no. I definitely said we did do one the other day so that's not a problem.
Barna: So. But if he has a problem taking cash, you know . . .
Plaintiff: We don't deal in cash.
Barna: Normally we don't. Normally, most of the time it's a money order. There are certain circumstances where it's cash. And that's it. If your [sic] uncomfortable with it that's fine. I don't have an issue with that.
Plaintiff: I don't want to be responsible for it.
Barna: You don't have to be. I'm gonna be responsible for it.
On July 25, plaintiff again wrote to the Corporation Counsel's office complaining that Woodson ordered him to accept cash from the towing operator. Corporation counsel advised there was no policy on the subject, but, henceforth the Division should only accept a check or money order. Barna issued an appropriate memo to Division staff on July 26.
Plaintiff again taped a conversation with Woodson regarding the policy. On August 6, plaintiff wrote to the Corporation Counsel's office complaining that Woodson "dismissed the memo saying its [sic] not the official policy of the City." That same day, Barna wrote a memo to plaintiff advising he was "taking numerous smoke breaks and coffee breaks throughout the day," in excess of the "two approved fifteen minute breaks allowed by the City . . . ."
On September 13, 2007, plaintiff sent a letter to Corporation Counsel in which he referenced a meeting on August 21 between his attorney, the City, and himself, which purpose "was to try and resolve some of the employment concerns we discussed." Plaintiff advised: "I will not work in the Division because I do not feel safe or comfortable working in a hostile environment where criminal activity is occurring."
The City filed a preliminary notice of disciplinary action on September 17, citing plaintiff's failure to report to work on numerous days in August and September, and charging him with insubordination, chronic and excessive absenteeism and resignation not in good standing. Plaintiff contested the charges and furnished medical notes from Dr. Davendra Kurani, a psychiatrist. The first indicated that plaintiff was "advised to refrain from work on July 30 and 31," but was cleared to return to work on August 1. A second note from Kurani advised plaintiff to refrain from work between September 12 and September 26. The hearing officer concluded that while these notes covered some of the dates in the specifications, there was "no documentation to support prior approval or verification verbally of [plaintiff] calling in." The City suspended plaintiff for thirty days in early 2008.
A second disciplinary action was commenced on July 14, 2008, when the City again cited plaintiff for similar infractions, specifying that plaintiff "did not report to work on June 9, 2008 and each day thereafter . . . ." Plaintiff did not contest the charges and his employment was terminated effective July 23, 2008. Plaintiff filed his CEPA complaint on July 18.*fn2
In a comprehensive written opinion, the motion judge extensively reviewed this record in the context of the prima facie elements of a CEPA claim. She initially concluded that plaintiff had not engaged in any "protected whistle[-]blowing activity" since he returned to work in 2007. Regarding plaintiff's claim that his initial lawsuit was itself protected activity, the judge stated:
Plaintiff cannot base a CEPA claim upon the theory that the act of complaining about retaliatory conduct is itself protected whistle[-]blowing activity, as such logic would make any complaint by any New Jersey employee regarding the manner in which that employee is being treated a whistle [-]blowing activity.
The judge then concluded that there was "[n]o credible evidence . . . indicating that [p]laintiff suffered an adverse employment action upon his post-verdict return to work . . . ." The judge further found that "[t]he City had legitimate, non-retaliatory motives for initiating disciplinary action . . . ." She rejected plaintiff's claim that he was constructively discharged based upon a hostile work environment.
Finally, the judge addressed the causation requirement of a CEPA claim. She noted that, "Barna alone made every decision pertaining to the conditions of [p]laintiff's employment on his return, and Barna is the person who initiated the disciplinary actions leading to [p]laintff's suspension and termination." The judge noted that even if "Woodson did display some animus toward [p]laintiff, Woodson was not a decision maker . . . ."
The judge entered the order under review, and this appeal ensued.
We conduct our review of a grant of summary judgment de novo applying the same standards that governed the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). To the extent factual disputes exist, we accord plaintiff the benefit of all favorable evidence and inferences in the motion record. Henry, supra, 204 N.J. at 329; see also R. 4:46-2(c). We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
"CEPA prohibits an employer from taking 'any retaliatory action against an employee' who engages in certain protected activity." Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011) (quoting N.J.S.A. 34:19-3). To establish a prima facie CEPA claim, a plaintiff must demonstrate: "(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 . . .; (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." Dwonzar v. McDevitt, 177 N.J. 451, 462 (2003).
Whistle-blowing activity includes an employee's disclosure "to a supervisor or to a public body" of, or his objection to or refusal to participate in, "any activity, policy or practice which the employee reasonably believes . . . is in violation of a law, or a rule or regulation or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment." Donelson, supra, 206 N.J. at 256 (quoting N.J.S.A. 34:19-3(a) and (c) (internal quotation marks omitted). "'Retaliatory action' means 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.
"The burden shifting analysis under the Law Against Discrimination (LAD) should be applied to CEPA cases." Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008) (citations and internal quotation marks omitted). For example, "once plaintiff establishes a prima facie case of retaliatory discharge, the defendant must then come forward and advance a legitimate reason for discharging plaintiff." Ibid. (quoting Zappasodi v. New Jersey, Dept. of Corrections, 395 N.J. Super. 83, 89 (App. Div. 2000). In the context of a summary judgment motion, the burden then shifts back to plaintiff to "raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 39 (App. Div.), certif. denied, 185 N.J. 39 (2005).
Plaintiff contends the motion judge erred in determining that he had not engaged in any whistle-blowing activity. In particular, plaintiff argues that his prior suit was protected activity, as were his complaints of "ongoing retaliation" because of that suit and his "refusal to participate in handling the cash transaction." Plaintiff further argues that the judge erred in determining he suffered no adverse employment activity and cites the following as examples: the City refused "to restore him to his pre-whistleblowing position," refused "to equalize his pay with his peer," refused "to promote him" "and/or constructively terminat[ed] his employment." Lastly, plaintiff argues that there was a genuine factual dispute as to causation.
Whether the second element of a CEPA cause of action --engaging in
whistle-blowing activity -- is satisfied by having filed a prior
complaint presents an interesting question that has not yet been the
subject of a reported opinion by the courts of this State.*fn3
We choose not to address the issue, or whether plaintiff's
complaints made after his return in April 2007 were whistle-blowing
activities, because we are convinced that plaintiff failed to
establish that adverse employment action was taken against him after
his return to work in April 2007.
"Retaliatory action" under CEPA means that the employer takes "adverse employment action . . . against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2. Any reduction in an employee's compensation, for example, qualifies. Maimone v. City of Atl. City, 188 N.J. 221, 235-36 (2006). "[E]ven without any reduction in compensation, a withdrawal of benefits formerly provided to an employee may be found in some circumstances to constitute an adverse employment action." Id. at 236. We have said that, as used in CEPA,
Terms and conditions of employment refer to those matters which are the essence of the employment relationship, and include further serious intrusions into the employment relationship beyond those solely affecting compensation and rank. The commonly understood meaning of the phrase includes, for example, length of the workday, increase or decrease of salaries, hours, and fringe benefits, physical arrangements and facilities, and promotional procedures. [Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div. 2005) (internal citations and internal quotation marks omitted) (alteration in original).]
Therefore, "not every employment action that makes an employee unhappy constitutes an actionable adverse action." Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 434 (App. Div. 2005) (citation and internal quotation marks omitted). We have interpreted N.J.S.A. 34:19-2(e) "as requiring an employer's action to have either impacted on the employee's 'compensation or rank' or be 'virtually equivalent to discharge' in order to give rise to the level of a retaliatory action required for a CEPA claim." Klein, supra, 377 N.J. Super. at 46 (quoting Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002), appeal dismissed, 177 N.J. 217 (2003)).
"Adverse employment actions do not qualify as retaliation under CEPA 'merely because they result in a bruised ego or injured pride on the part of the employee.'" Beasley, supra, 377 N.J. Super. at 607 (quoting Klein, supra, 377 N.J. Super. at 46). "CEPA's purpose is to prevent retaliatory action against whistle-blowers, it is not to 'assuage egos or settle internal disputes at the workplace.'" Ibid. (quoting Klein, supra, 377 N.J. Super. at 45).
In this case, plaintiff was not subject to action by the City that adversely affected "the essence of the employment relationship." Beasley, supra, 377 N.J. Super. at 608. It is undisputed that his salary was not reduced; in fact, plaintiff's salary was increased during the time his initial suit was pending and prior to his return in April 2007. The City did not change his title of Administrative Assistant, although it reassigned the duties he previously conducted to others and delegated different responsibilities to plaintiff. Plaintiff's dissatisfaction with the fact that he was no longer doing inspections in the field, carrying a badge, performing the biannual taxicab inspection, and was now sitting in a cubicle instead of a separate office is insufficient to establish retaliatory adverse employment action. See Klein, supra, 377 N.J. Super. at 46 ("Nor does the imposition of a condition on continued performance of duties in and of itself constitute an adverse employment action as a matter of law, absent evidence of adverse consequences flowing from that condition."). Moreover, plaintiff admitted in his deposition that his field work was restricted and his badge was taken from him in 2004, i.e., before he filed his first CEPA lawsuit.
We also reject plaintiff's contention that the City's "refus[al] to promote him," and, instead, promote Coyne, was retaliatory action under CEPA. The City's Personnel Director, Larry Ross, testified in deposition that the City played no role in this determination and DOP alone deemed plaintiff ineligible for the position of Assistant Director of Licensing. Plaintiff's allegations in his brief to the contrary -- "[t]he City could have found a way to promote [him] if it wanted to" --are bald assertions that are unsupported by the record.
We also find plaintiff's contention that the City's refusal to "equalize [his] pay with his peer," Coyne, was not retaliatory action under CEPA. Coyne was earning substantially more than plaintiff was in 2005. While Coyne's duties encompassed many of the duties previously assigned to plaintiff, he testified that he had other responsibilities. The City was not required, simply because it could, to either make plaintiff's salary commensurate to Coyne's or be deemed to have violated CEPA.
Lastly, plaintiff's claim that he was constructively terminated from his position lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). The City's treatment of plaintiff was not "virtually equivalent to discharge." Hancock, supra, 347 N.J. Super. at 360 (citation omitted). Nor can the disciplinary charges that actually led to plaintiff's termination form the claim of retaliatory action. See id. at 360-61 (substantiated disciplinary charges unrelated to the complaint do not satisfy CEPA's requirement of retaliatory action).
We recognize the Court has held that retaliation "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." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003). However, even when the comments of Montone and Woodson are added to the equation, the totality of conduct simply did not amount to the kind of pernicious behavior that CEPA was intended to deter.
To the extent we have not specifically addressed plaintiff's other allegations of retaliatory action by the City, we conclude they lack merit. R. 2:11-3(e)(1)(E).