January 27, 2014
ROBERT DUKIN, Plaintiff-Appellant,
MOUNT OLIVE TOWNSHIP BOARD OF EDUCATION, MOUNT OLIVE TOWNSHIP BOARD OF EDUCATION TRANSPORTATION DEPARTMENT, DIANE DAVIDSON, BRIAN LEWIS, LARRIE REYNOLDS, SUSAN DECKER, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2018-10.
Bell, Shivas & Fasolo, P.C., attorneys for appellant (Joseph J. Bell, of counsel; Valerie Fasolo, on the briefs).
Methfessel & Werbel, attorneys for respondents (Eric L. Harrison, of counsel and on the brief; Leslie Koch, on the brief).
Before Judges Fisher, Espinosa and Koblitz.
Plaintiff Robert Dukin, an auto-mechanic who worked for the Mount Olive Township Board Of Education (MOBE), appeals from a February 17, 2012 order dismissing his claim pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-3(a), and granting summary judgment to defendants MOBE, MOBE Transportation Department, Diane Davidson, Brian Lewis, Larrie Reynolds and Susan Decker. Because Dukin demonstrated a nexus between the adverse employment action of non-renewal of his annual contract and his complaints about both the safety of a school bus and the working conditions in the garage, we reverse.
Summary judgment is appropriate where there are no genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532 (1995). Viewing the facts in a light most favorable to the nonmoving party, a court must determine whether the materials presented "are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the nonmoving party." Carmichael v. Bryan, 310 N.J.Super. 34, 47 (App. Div. 1998). Credibility findings are not germane for judicial determination on summary judgment. Brill, supra, 142 N.J. at 540. We use the same standard as the trial court when we review a summary judgment decision. Henry v. N.J. Dep't. of Human Servs., 204 N.J. 320, 330 (2010).
We accept the facts as presented by Dukin, as we must in this posture of the case. Dukin was employed by MOBE from 2007 until 2010, rising from the position of mechanic's helper to mechanic before his contract was not renewed in 2010. He became a union shop-steward during his employment.
In 2009 defendant Diane Davidson assumed the role of supervisor of transportation. Her responsibilities included supervising the mechanics in the garage as well as the bus drivers and bus aides. When the mechanics met with Davidson on September 17, 2009, she told them "if you go above me in any which way, I will find a way to bury you." Davidson memorialized this meeting in a memorandum stated that she "asked mechanics to follow [the] chain of command" and that the mechanics "must come to [their immediate supervisors] before going to [the] Board office."
Dukin was suspended from work from November 2 through November 6, 2009 for not putting away equipment and using disrespectful language. Dukin filed a grievance and these charges were ultimately dropped. He was reimbursed for lost wages during the suspension. Shortly thereafter, on November 20, 2009, Dukin was also issued a written reprimand (action memo) for "maintaining sloppy work" and "dangerous work conditions." He lost this appeal and the reprimand remained in his personal file. On December 8, Dukin was cited for insubordination.
In early January 2010, Dukin was assigned to complete a quarterly inspection on bus 19 and prepare an inspection report. After checking the bus, Dukin told his supervisor, lead mechanic Brian Lewis, that there was "a severe air leak in the air tank" on bus 19's brake fittings. Lewis told Dukin to take the bus out of service until after the State bus inspections were completed. Dukin did not go into work for the next two days because of illness. On the morning he returned to work, Dukin saw a driver attempting to take bus 19 on the road. The driver told Dukin that the bus had passed state inspection. Dukin knew that state Motor Vehicle Commission (MVC) inspectors were on site checking MOBE's bus fleet and he thought that Lewis sent bus 19 for inspection in order to avoid a state audit of the garage because too many vehicles were off the road for repairs. After confirming that the school bus had not been repaired, Dukin told the driver not to take the bus because there were severe problems with the brakes and that "if it were to lose air, she could lose brake pressure and eventually get into an accident. . . ." The driver told Dukin that Lewis gave her permission to place bus 19 back into service. Dukin informed the on-site MVC inspector of the problem. He told the inspector that Lewis had sent bus 19 to the inspectors without repairing the brakes or informing them of the problem. The inspectors confirmed Dukin's concerns and told Lewis that the bus was to be taken out of service.
On January 19, 2010, Dukin received two more action memos, one for operating a vehicle engine without proper ventilation while other employees were working, and a second for calling his union representative on the phone while at work to report the reprimand.
Shortly thereafter, Lewis ordered Dukin to elevate a bus using a bumper-jack on what Dukin claims was "uneven asphalt." When Dukin refused because it was unsafe and in violation of stated safety procedures, Lewis sent Dukin home from work for insubordination. After being sent home, Dukin lodged a work-safety violation complaint with the New Jersey Office of Public Employees Occupational Safety and Health department (PEOSH). At approximately the same time as Dukin's complaint, Lewis circulated a memorandum to the mechanics indicating PEOSH informed him that the garage was to follow different procedures for securing a bus elevated by a bumper-jack.
When the Superintendent of the district, defendant Larrie Reynolds, learned that Dukin had informed the MVC inspector of bus 19's brake problems, he arranged a meeting with Davidson, Lewis, Dukin and union representatives on January 25, 2010. At the meeting, Dukin was questioned as to why he informed the state inspector of bus 19's problems. Dukin was fired. He then told defendants that he "had the right" to inform the MVC of safety concerns and was protected under the whistleblower law. Reynolds then asked for a "five minute break." After the break, Reynolds reinstated Dukin, told him that there would be no suspension for his actions and that he would no longer be spoken to about the incident. The next day, Reynolds prepared a memorandum to assistant superintendent Susan Decker summarizing the findings he made during the meeting. Reynolds found that Dukin lied when he claimed that he could not find Davidson or Lewis to inform them of the problem before informing the inspector. Reynolds noted that Dukin informed him that he feared retaliation for speaking up and claimed protection under the "whistleblower's act" during the meeting.
On February 4, 2010, PEOSH sent an inspector to inspect the bus garage based on Dukin's second complaint on January 28. The inspector found thirteen regulatory violations, including seven "serious" violations, each carrying a $425 daily penalty, and six "other than serious" violations, each carrying a $263 per day penalty. Among the serious violations were unsanitary work conditions and unsafely stored electrical equipment. Four days later, Reynolds sent Dukin a letter, requesting his presence at a public hearing to "discuss matters pertaining to your employment." Dukin also received a call from his union representative, Diane Spear, who informed him that his employment was going to be terminated at the meeting. Spear informed Dukin of a potential settlement in which MOBE would agree to pay Dukin through May 2010, with health benefits through June 2010, if Dukin agreed to resign and release MOBE from his right to sue. Spear told him that his employment contract would not be renewed in June 2010. Instead of entering into this agreement, Dukin elected to remain at work. Dukin then learned from another representative that MOBE withdrew his termination from the public hearing agenda of the upcoming meeting.
Dukin's employment contract was not renewed when it expired in June 2010. While Dukin claims that he was the victim of retaliation in the wake of his whistleblowing activities, defendants claim that his "poor performance and insubordination continued" through the spring of 2010 and that Dukin's contract was not renewed for that reason.
The motion judge ruled that defendants engaged in conduct that was in violation of the law and that Dukin's action in informing the authorities about bus 19 and garage safety concerns constituted whistleblowing activity. The judge, however, held that Dukin did not demonstrate "adverse employment action" or a causal connection between his whistleblowing activity and non-renewal of his contract. The judge granted summary judgment to defendants on the CEPA and punitive damages claims.
Pursuant to N.J.S.A. 34:19-3(a), employers are prohibited from retaliating against an employee because the employee "discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law or rule or regulation . . . ." The Legislature enacted CEPA 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." Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (internal citations omitted). In furtherance of that goal, an "employer shall not take any retaliatory action against an employee" if the employee "objects or refuses" to participate in activity that the employee believes is "in violation of the law, " or is "fraudulent or criminal" or "incompatible with a clear mandate or public policy. . . ." N.J.S.A. 34:19-3(c)(1) to –(3). A plaintiff who brings a cause of action pursuant to this statute must set forth that: (1) he reasonably believed the employer's action violated a rule or law; (2) he performed a "whistleblowing" activity; (3) adverse employment action was taken against him and (4) a causal connection exists between "the whistleblowing activity and the adverse employment action." Dzwonar, supra, 177 N.J. at 462.
A plaintiff's evidentiary burden for presenting a prima facie case is modest. Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 81 (1978). Our Supreme Court noted this policy is intended to prevent "rampant discrimination [from going] unchecked." Ibid.
Defendants do not dispute that Dukin satisfied the first prong. Upon inspection, both bus 19 and the MOBE garage were in violation of many state safety regulations.
Defendants argue that the trial judge incorrectly found that Dukin engaged in whistleblowing activity under N.J.S.A. 34:19-3(a) and (c) and therefore failed to prove the second prong of the CEPA test. Defendants claim that Dukin's alleged instances of "whistleblowing" conduct, his complaints to the MVC inspector and PEOSH, are not "cognizable act[s] of whistleblowing" under the statute.
In support of this proposition, defendants rely chiefly on Massarano v. N.J. Transit, 400 N.J.Super. 474, 491 (App. Div. 2008) to argue that "an employee does not engage in CEPA protected activity" when the employee bases his claim on activity "within the sphere of [his] job related duties." We have recently held to the contrary in a similar factual scenario. In Lippman v. Ethicon Inc., we held that a "watch dog" employee who informs authorities about matters that fall within the scope of his job assessing risk is afforded protection under CEPA. 432 N.J.Super. 378, 406-07 (App. Div. 2013). We reasoned that denying such an employee protection under CEPA is inconsistent with the statute's broad remedial purpose and that this result fails to protect "watchdog" employees who are "uniquely positioned to know where the problem areas are and to speak out . . . ." Id . at 407.
Dukin, however, was clearly in a different position than the plaintiffs in both Massarano and Lippmann. In both cases, the plaintiff's central job description was to assess and analyze risk for their respective employer. Dukin was not tasked with assessing corporate risk, but rather he was a mechanic assigned to repair school buses. The motion judge properly held Dukin engaged in whistleblowing activity.
We agree with Dukin that the trial judge failed to fully consider all of the evidence when the motion judge determined that there was insufficient evidence of an adverse employment action.
A motion for summary judgment should be denied where determination of material disputed facts depends primarily on credibility evaluations or where the record reveals genuine, material disputes of fact. Parks v. Rogers, 176 N.J. 491, 502 (2003). The motion judge should never resolve a "dispute on the merits that should have been decided by a jury." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 50 (2012).
Dukin presented sufficient evidence of retaliatory action by defendants. Dukin perceived his employer's activity as violating a law, he reported it to authorities and was subject to immediate threats of termination and other adverse actions following his whistleblowing. Although the failure to renew Dukin's contract may have been due in part or in whole to budgetary constraints or poor job performance, certainly this negative job action could also have been in retaliation for Dukin's whistleblowing activities. The motion judge improperly assessed credibility, accepting defendants' explanation for not renewing Dukin's contract.
Retaliatory action is defined under CEPA as "the discharge, suspension or demotion of an employee or other adverse employment action taken against an employee in terms and conditions of employment." N.J.S.A. 34:19-2(e) (emphasis added).
The motion judge opined that defendants did not take adverse employment action against Dukin because they simply chose not to renew his yearly employment contract. Our Supreme Court, however, in similar circumstances has held to the contrary. In Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405 (1994), the Piscataway Board of Education did not renew a non-tenured industrial arts teacher's contract after the teacher reported "inadequate health and safety conditions" at the school's metal shop. Id . at 410. Shortly after writing letters to the superintendent and informing the Occupational Safety and Health Administration (OSHA) of the problem, the Board voted not to renew the plaintiff's contract for the upcoming year. Id . at 413. A jury returned a verdict against the Board which was upheld by the Court. In Abbamont, as here, the evidence indicated that the district superintendent, as well as others, threatened the plaintiff on multiple occasions that his contract would not be renewed following plaintiff's whistleblowing activity. Id . at 422-424. Dukin set forth evidence of similar statements during a meeting with Reynolds and school officials.
CEPA retaliation also includes "other adverse employment actions" taken against an employee for his act of whistleblowing. Klein, supra, 377 N.J.Super. at 38. Dukin argues that "cumulative" acts of retaliation also constitute adverse employment consequences. This argument is well supported by case law. See, e.g., Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003) (noting that retaliation under CEPA can occur through "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but may combine to make up a pattern of retaliatory conduct"); Nardello v. Twp. of Voorhees, 377 N.J.Super. 428, 436 (App. Div. 2005) (holding that cumulative, minor retaliation can amount to adverse employment action under CEPA).
The fourth and final element of a prima facie case under CEPA requires an employee to establish that a "causal connection exists between the whistleblowing activity and the adverse employment action." Dzwonar, supra, 177 N.J. at 462. A court will infer, based on the surrounding circumstances, whether or not a causal connection existed between adverse employment consequences and the protected event. Beck v. Tribert, 312 N.J.Super. 335, 343-44 (App. Div. 1998).
The record is replete with direct and circumstantial evidence that Dukin's contract non-renewal was directly related to his complaints to the MVC and PEOSH. Davidson told the mechanics, including Dukin, that she would "bury" anyone who attempted to go over her head, which Dukin did by informing the DMV and PEOSH of safety issues.
Once a plaintiff has demonstrated a prima facie case of discrimination pursuant to Title VII, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reasons" for adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 678 (1973). Similarly, once a plaintiff establishes a prima facie case pursuant to CEPA, the burden is shifted to the employer to rebut the presumption of unlawful retaliation by "articulating some legitimate nondiscriminatory reason for adverse employment action." Kolb v. Burns, 320 N.J.Super. 467, 478 (App. Div. 1999). The plaintiff "need not provide direct evidence that [his] employer acted for discriminatory reasons to survive summary judgment." Ibid. The plaintiff must only demonstrate "weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Ibid. (internal citations and quotation marks omitted).
In Kolb, we reversed the grant of summary judgment to defendants, noting that the trial court erred by failing to consider whether the plaintiff presented some evidence, direct or circumstantial, "from which a reasonable fact-finder could conclude that defendant's proffered reasons were either a post hoc fabrication or otherwise did not actually motivate the employment action. . . ." Id . at 480 (internal citations and quotation marks omitted). An employer's inconsistent explanations for the challenged employment action may be relevant to determination of causation. Donofry v. Autotote, 350 N.J.Super. 276, 292-93 (App. Div. 2001).
Defendants relied on differing rationales for not renewing Dukin's contract, arguing before us that it was based on poor performance while indicating to the motion judge that his contract was not renewed due to budgetary restrictions. At deposition, Reynolds noted that due to budget tightening, the district eliminated 10.5 positions of its approximately 840 employees. The motion judge accepted this argument even though after Dukin's contract was not renewed, the district hired another mechanic, a relative of Lewis, to help in the garage.
Defendants argue on appeal that plaintiff's nonrenewal was due entirely to his poor job performance despite the fact that plaintiff was promoted in 2009 with a history of action memos and on-the-job reprimands. Dukin has satisfied his modest burden to rebut defendant's proffer of non-discriminatory action at this preliminary stage in the proceedings.
We also reverse the motion judge's determination to dismiss the count in the complaint seeking punitive damages. Punitive damages may be awarded against public entities pursuant to N.J.S.A. 34:19-2(a). Our Supreme Court in Abbamont, supra, noted that there is no specific provision of CEPA that precludes punitive damages against public employers. 138 N.J. at 426. Because the Legislature intended CEPA claims to be treated like common-law tort actions, punitive damages should be determined by a jury as the trier of fact. Id . at 432-33.