NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-475-12.
Law Offices of William J. Courtney, L.L.C., attorney for appellant (Mark G. Yates and William J. Courtney, on the briefs).
Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys for respondents (Margarita Romanova and Alan Genitempo, on the brief).
Before Judges Fisher, Espinosa and Koblitz.
Plaintiff Bernice Will appeals from an October 26, 2012 order granting defendants' summary judgment motion on claims that defendants violated the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and public policy when they terminated plaintiff's employment. We affirm the dismissal of the public policy count because Will waived her right to pursue this cause of action when she filed her CEPA claim. We reverse the dismissal of the CEPA count because it was based on a credibility determination not properly made at the time of summary judgment.
Plaintiff is an accountant who was employed with defendant accounting firm Caruso Thompson, L.L.P. (Caruso Thompson) for approximately seven weeks. Defendant Robert Caruso, one of the firm's partners, claims plaintiff's employment was terminated due to incompetence and insubordination. Plaintiff claims her employment was terminated because she voiced objection to one aspect of the firm's compensation scheme.
Plaintiff was hired by Caruso Thompson to serve as an accountant starting in November 2008. Although plaintiff testified at her deposition that she left her prior accounting job because her position was temporary, employment records show that plaintiff's employment was terminated because of the firm's dissatisfaction with her job performance.
Plaintiff's compensation package at Caruso Thompson included an annual salary of $100, 000, bonuses, and a $12, 000 annual allowance for business development expenses. According to plaintiff, the business development allowance was actually intended by Caruso Thompson to be part of plaintiff's base compensation. To receive the promised additional $1, 000 each month, plaintiff claims that she was required to submit false expense reports; that is, she would have to report that she incurred expenses she never actually incurred. As an example, on an expense report, plaintiff stated that she incurred $97 in expenses to travel to Lakewood, but never actually traveled to that location. Caruso Thompson compensated employees in this way, plaintiff alleges, in order to avoid taxes that would have to be paid by both the firm and its employees if the base salary were higher.
Plaintiff does not deny that she understood the illegality of this arrangement when she accepted the job nor that she submitted false expense reports, but she claims she "had no choice" if she wanted to receive the promised additional $12, 000 each year. Plaintiff asserts that she complained to Caruso or his partner Michael Thompson "[a]t least four or five times" about this practice, but her objections were met with displeasure at her having raised the subject. Plaintiff also claims to have expressed her disapproval of the arrangement in a conversation with Mary Lou Bayer, a certified public accountant at the firm. Bayer allegedly responded only by saying that "this is how it is done." Caruso and Bayer deny those conversations with plaintiff ever occurred and there is no evidence other than plaintiff's testimony that she expressed any objection to Thompson or Bayer.
Plaintiff's employment with Caruso Thompson was terminated in February 2009. Caruso testified the reasons for the termination included "gross insubordination, failure to follow company procedures, failure to be a team member, " only "cursory" knowledge of how to prepare tax returns, and generally poor performance culminating in the mishandling of a client's tax return in early February of 2009. Caruso admitted that he wrote on plaintiff's unemployment paperwork that the reason for plaintiff's termination was "lack of work, " but he claims that he did so in order to allow plaintiff to receive unemployment benefits. Caruso Thompson gave plaintiff two weeks of severance pay and continued to pay for plaintiff's health insurance "probably through the end of February, " according to Caruso. The firm also wrote a reference letter for plaintiff in May 2009 stating that plaintiff was an "intelligent, personable and hardworking" senior tax manager.
Plaintiff contends that her employment was terminated not because of incompetence or insubordination, but in retaliation for her objection to Caruso Thompson's allegedly fraudulent compensation system. With regard to the allegedly mishandled tax return that precipitated plaintiff's termination, the parties agree that plaintiff composed a memorandum explaining her actions. However, defendants claim that Caruso "threw the memorandum she composed away" and failed to ...