JUDITH A. THORNTON v. NEW JERSEY MANUFACTURED HOUSING ASSOCIATION, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2509-05T52509-05T5

JUDITH A. THORNTON,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURED

HOUSING ASSOCIATION, INC.,

a New Jersey nonprofit

corporation,

Defendant-Respondent.

_________________________________________________

 

Submitted September 5, 2006 - Decided October 10, 2006

Before Judges Payne and Gilroy.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

L-808-04.

David A. Gies, attorney for appellant.

Mandelbaum Salsburg Gold Lazris &

Discenza, attorneys for respondent

(William H. Healey, on the brief).

PER CURIAM

Plaintiff Judith Thornton appeals from an order of summary judgment entered on her claims against defendant New Jersey Manufactured Housing Association, Inc. (NJMHA) of wrongful discharge pursuant to the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 and the common law, claiming that material issues of fact regarding the reason for her termination require resolution by a jury and that her common-law claim should not have been dismissed pursuant to the waiver provisions of N.J.S.A. 34:19-8. We affirm.

I.

The factual background of this matter is complex, but largely undisputed. The NJMHA is a non-profit trade association that provides informational and lobbying services to its members, which are drawn from the mobile and manufactured home industries. It is governed by a Board of Directors comprised of approximately eighteen members, and operates through Board committees, including an Executive Committee composed of the organization's officers and its past president. Robert Dolan served as the NJMHA's president in the year 2002; Steve Bergstrom filled that office in 2003.

Thornton was initially employed by the NJMHA in 1977 and, after an employment hiatus from 1981 to 1984, she was rehired as its Executive Director. During the latter years of Thornton's employment, she was assisted by her daughter, Kimberly Britschge, who became a fulltime employee in 1996. Thornton's duties included establishing the NJMHA's policies and procedures, balancing its budget, lobbying, fundraising, handling member dues, and overseeing the creation and mailing of its newsletter, Housing Insight. By Thornton's estimate, her interaction with various governmental agencies occupied approximately one-third of her time. Additionally, she maintained supervisory authority over Britschge and over the daily maintenance of the office. She also served as the treasurer of the NJMHA's Continuing Political Committee (CPC).

The New Jersey Department of Community Affairs (DCA) maintains regulatory authority over the activities of the NJMHA's members, establishing standards and enforcing codes that relate to the mobile and manufactured home industries. It was Thornton's responsibility as the NJMHA's Executive Director to interact with employees of the DCA and to represent the interests of NJMHA's members before it. In March 2002, Paul Sachdeva, Thornton's principal contact at the DCA, became concerned about the safety of certain anchors used to fasten mobile and manufactured homes to the ground, and he requested that Thornton notify the NJMHA's members that the anchor should not be used and that prior installations using the anchor should be repaired. When member compliance did not occur, Sachdeva threatened monetary sanctions, which Thornton believed the DCA lacked the power to impose. She took the issue first to Dolan, who was then the NJMHA's president, who agreed with the thrust of Sachdeva's concerns and advised placating him. However, Thornton remained concerned, and she eventually obtained authorization from the Board to contact the United States Department of Housing and Urban Development (HUD) to obtain a ruling as to the extent of the DCA's powers. She wrote a Board-approved letter to HUD on September 10, 2002. HUD found that Sachdeva's proposed imposition of penalties exceeded the DCA's powers. Sachdeva, when informed of Thornton's letter, became angered that she had contacted HUD without his knowledge and demanded an apology. Dolan as the NJMHA's president complied; Thornton did not, although she was aware of Sachdeva's demand. Also, during this period, Sachdeva and Thornton engaged in a telephone call, during which Sachdeva claimed Thornton had called him "inept," (which Thornton appears to acknowledge) and also an "idiot" and "stupid." After the call, the two never spoke again.

In October 2002, Thornton drafted a letter as NJMHA's Executive Director to Sachdeva, in which she claimed that Sachdeva had "lied," referred to his conduct as "unethical," "unprofessional" and "inappropriate," demanded a letter of apology for his statement to the Board that she had called him an "idiot" and "stupid," and threatened to "take other action that is more unpleasant" if the apology were not received. Board members to whom she showed the letter convinced her not to send it.

In January 2003, the Board treasurer, Lori Greenberg, and Board member, Nancy Viviano, conducted an audit of Thornton. As the result, the Board learned of problems commencing in July 2002, including the fact that Thornton had transferred $8,000 in compensation from herself to her daughter, which her daughter had claimed as salary for purposes of computing workers' compensation benefits. Additionally, Thornton had signed and forwarded a NJMHA check to her daughter in the amount of $2,031 without authorization and purchased with NJMHA's funds a laptop computer for her own use without authorization, claiming it constituted compensation for unused vacation time.

Following disclosure of the audit, Thornton was called to appear before the Board to address its findings at an emergency session held on February 6, 2003 and presided over by Steve Bergstrom, who was by then president. Following consideration of Thornton's responses, the Board resolved to ratify Thornton's conduct and to increase her salary. However, ratification of the salary transfer by Thornton to her daughter was made dependent upon the daughter's acknowledgement that the funds transferred to her did not constitute true salary for any purpose. The acknowledgement was never received. According to Board president Bergstrom, the Board was hoping by its actions to get Thornton "back on track" and to "get her back to work" at the NJMHA.

After receipt of the audit but prior to the Board meeting, Thornton wrote a memo to the Board, dated January 30, 2003, in which she announced that she would no longer "act on [her] own." She continued:

I will not sign any checks, documents or correspondence, nor distribute publication[s] or make any decisions based on what I determine as the best action to take on any issue. Approval in writing via e-mail, fax or postal delivery, with the knowledge of at least five members of the Board, is required to disburse funds, present a position to any representative of government, lobbying agent, seek any services of independent contractors, or distribute any literature to the members or general public without clear Board authorization.

Following the February 6, 2003 Board meeting, Thornton engaged in additional conduct of concern to certain members of the Board. On the day after the Board's meeting, Thornton advised the Board by memo that she would no longer serve as CPC treasurer and that she demanded additional compensation to attend NJMHA meetings and fundraisers occurring on the weekend or in the evening. Additionally, she sought a policy on personal cell phone usage, and the Board's advice as to whether she should continue as the NJMHA's legislative agent.

On February 10, 2003, Thornton advised the Board that the NJMHA's Annual Legislative Report was due that day, and that a $1,000 fine would be imposed for late submission. The twenty pages of instructions necessary for completion of the report were included with Thornton's memo.

On February 13, 2003, Thornton addressed a memo to several members of the Board in which she criticized Dolan, Greenberg and Viviano and asked: "Should we allow a few Board members to maim or kill the Association." The memo provoked a strong response from Greenberg and a demand by Bergstrom that she must advise all recipients of the memo that it did not represent the position of the NJMHA. Additionally, in a memo to Greenberg dated March 7, 2003 attaching her legislative update that was copied to the remaining Board members, Thornton observed that holding the title of Chair of NJMHA's Legislative Committee "does not make one knowledgeable nor effective," and she continued:

If you truly desire to learn the ropes and become more active, start with attending NJBIA's legislative breakfasts. It's easy to say that someone is falling down on the job when you don't know what is involved, who is responsible for making decisions, what is possible to achieve and what is a waste of time and money.

* * *

You have been on the Board for five years, do you have a clue as to what you are asking me to do?

By letter dated March 21, 2003, Board president Bergstrom sent a letter of reprimand to Thornton on behalf of the six members of the Executive Committee, the committee charged with personnel matters, listing actions of concern as the following:

An internal audit discovered an $8,000 transfer of payroll to another employee without board approval.

An internal audit identified a $2,033 disbursement to an employee without Board approval.

Failure to disclose how the above-mentioned disbursement ($2,033) was calculated.

Refusal to complete tasks, inherent to the office of the Executive Director over past years, including but not limited to:

1. CDC Treasurer

2. Bulk mailings

3. Day to day office operation

decisions.

4. Tracking and reporting pertinent

legislative issues.

Refusal to attend am/pm meetings w/o additional compensation.

Circumvented authority by seeking out an uninformed Board Member for approval on a payroll check after being explicitly told the payment was denied and should be issued for a different amount.

Defaming Board members through written and oral communications.

Using NJMHA time and supplies to complete the above mentioned activity.

Initiating a pattern of harassment against the treasurer responsible for the audit.

Failure to supervise your sole employee by allowing continued and repeated unprofessional behavior.

Repeatedly ignored written and verbal requests to cease insubordinate behavior.

In a letter dated March 24, 2003, another Board member urged the Board to terminate Thornton.

Further, on April 8, 2003, a member of the NJMHA threatened to cease his company's membership in the NJMHA or to materially reduce its financial support as the result of an inclusion in the trade publication of an "offensive" partisan, right-wing article by Thornton in the organization's newsletter for January/February 2003 that accused Al Gore, Bill Clinton and Warren Christopher of various security lapses commencing in 1971 that allegedly led to the 2001 Trade Center attack.

In a letter dated April 9, 2003, legal counsel to the NJMHA advised Thornton that they were investigating her "recent activities," that the locks on the office had been changed, and that the office had been temporarily closed. Her employment was terminated in a letter from Bergstrom dated April 15, 2003.

II.

N.J.S.A. 34:19-3 prohibits retaliatory action by an employer against an employee because the employee "(a) 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 a rule or regulation promulgated pursuant to law"; "(b) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer"; or "(c) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation . . . ; (2) is fraudulent or criminal; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment."

Thornton focuses her arguments upon section (c)(3) of this statute, and argues that the NJMHA's retaliation against her was based upon her refusal to participate in Dolan's policy of placating Sachdeva because "doing so would be incompatible with the federal law on anchoring manufactured housing units." We do not find that Thornton has established a prima facie case under this section.

In the deposition given in this matter, Thornton described Sachdeva's concerns as relating to safety.

His concerns were that he read a footnote that said an anchor distributed by Style Crest . . . did not have the ability to hold the poundage requirement of a mobile or manufactured home.

He wished use of Style Crest's anchors to be discontinued, and prior installations using those anchors to be remediated. He suggested the use of Minute Man anchors for this purpose. Although at Sachdeva's request, she relayed Sachdeva's "demands" to the NJMHA's membership, when compliance was not achieved and Sachdeva threatened monetary penalties, Thornton believed that Sachdeva had exceeded his authority. Although Dolan sought to avoid a confrontation with Sachdeva, Thornton took the matter to the Board, which directed her not to "turn in" any of the NJMHA's members and not to follow Sachdeva's commands without the Board's approval. The Board also authorized Thornton to seek an opinion from HUD. However, Thornton confirmed at her deposition that her letter seeking that opinion did not address the suitability of the anchors for their intended purpose or the substance of Sachdeva's demands, but only Sachdeva's power to impose fines on noncompliant NJMHA members. Although Thornton testified that she "believed" Dolan opposed her request to send the letter, it was sent pursuant to the Board's authorization. Further, when asked, "[b]efore the board, in front of the board, was Mr. Dolan agreeable to the HUD letter going out?" Thornton responded: "I don't remember him voting against it." The person from HUD who answered Thornton's inquiry also contacted Sachdeva.

Thus, the "practice" to which Thornton objected was the unrealized threat of imposition of fines by the DCA, not her employer; Thornton was authorized by the employer to determine the legality of the fines under federal law and received a ruling on the issue favorable to Thornton's position; and she was never required by the employer to engage in conduct that she found to be unauthorized or otherwise illegal with respect to the fines or other conduct that she may have deemed to be contrary to public policy. At most, Dolan (a single Board member) expressed his view to Thornton that she should attempt to placate Sachdeva, the NJMHA's principal contact in the DCA, which she did not do, resulting in a severance of her relationship with Sachdeva.

It does not appear to us that mere objection to the authority of a third-party administrative agency to levy fines constitutes an objection to an activity that the employee believes is "incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment." We start with the purpose of CEPA, which the Supreme Court has articulated as: "to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private employers from engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994); see also Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003). We find no language to suggest that the purpose of the Act is to protect challenges by employees to the authority of third-parties to levy fines, especially in circumstances in which the challenge has been authorized by the claimant's employer.

Further, the Court has required in both a common-law and CEPA context that the plaintiff clearly define the public policy giving rise to the employee's conduct and the alleged retaliation.

A basic requirement of the wrongful discharge cause of action is that the mandate of public policy be clearly identified and firmly grounded.

A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate. Its alleged violation will not sustain a wrongful discharge cause of action.

[MacDougall v. Weichert, 144 N.J. 380, 391-92 (1996)(citations omitted).]

See also Dzwonar, supra, 177 N.J. at 463 (requiring a clear articulation of the public policy but only a reasonable belief that it was violated).

In this case, the public policy that Thornton sought to effectuate in clarifying the scope of the DCA's regulatory authority remains ill-defined, and its relationship to public health, safety, welfare or the protection of the environment is wholly unstated. Compare, e.g., Mehlman v. Mobil Oil Corp. 153 N.J. 163, 172-78 (1998) (objection by toxicologist to sale of gasoline by company's Japanese subsidiary that contained levels of benzene in excess of U.S. limits); Abbamont, supra, 138 N.J. at 410 (finding cause of action stated as the result of failure to tenure and rehire teacher who complained about unsatisfactory health and safety conditions in the school's metal shop in alleged violation of OSHA standards); Le Pore v. Natn'l Tool & Mfg. Co., 115 N.J. 226, 227-28 (reporting of workplace safety violations), cert. denied, 493 U.S. 954, 110 S. Ct. 366, 107 L. Ed. 2d 353 (1989); Parker v. M & T Chem., Inc., 236 N.J. Super. 451, 460-63 (App. Div. 1989)(use of competitor's trade secrets contained in documents subject to court-imposed confidentiality order).

Whether plaintiff has adequately established the existence of a clear mandate of public policy is an issue of law, whose resolution "often will implicate a value judgment that must be made by the court, and not by the jury." Mehlman, supra, 153 N.J. at 187. As stated by the Mehlman Court:

the core value that infuses CEPA is the legislative determination to protect from retaliatory discharge those employees who, "believing that the public interest overrides the interest of the organization [they] serve[], publicly 'blow[] the whistle' [because] the organization is involved in corrupt, illegal, fraudulent or harmful activity." Ralph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility (1972).

[Id. at 187-88.]

Although a variety of sources can provide the foundation for a determination that a particular practice violates a clear mandate of public policy,

[a] salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee.

[Ibid.]

The facts that we have described as underlying this case depict, at most, a dispute between the NJMHA's Executive Director and Dolan, its president in 2002 and member of its Executive Committee thereafter, as to the proper approach to take in relationships with DCA's employee and close contact there, Sachdeva. They suggest no employer conduct that Thornton "reasonably believe[d] to be unlawful or indisputably dangerous to the public health or welfare." Dzwonar, supra, 177 N.J. at 464. As such, Thornton's ill-supported dispute with Dolan was merely private in nature, and thus not actionable under CEPA. Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439, 446 (2004). We thus find entry of summary judgment on Thornton's CEPA claim to have been properly entered.

III.

N.J.S.A. 34:19-8 provides that the institution of an action in accordance with the CEPA "shall be deemed a waiver of the rights and remedies available under . . . the common law." This provision has been interpreted not to apply to causes of action that are substantially independent of the CEPA claim. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 502 (2006); Young v. Schering Corp., 141 N.J. 16, 29 (1995). However, in this case Thornton's common-law claims for wrongful discharge merely duplicate those asserted under CEPA. Their dismissal was therefore proper.

The order of the trial court is affirmed.

 

The following facts are, in large measure, taken from the statement of uncontested facts submitted by the NJMHA in connection with its motion for summary judgment that were admitted by Thornton to be true.

The amount was allegedly deemed by Thornton to be compensation for unused vacation time and holidays worked.

Thornton's daughter allegedly had been rude to Board members and had closed a letter to a Board member with the word "disgusted" above her signature.

The letter is not included in the record,

We would find it difficult without additional evidence to premise a CEPA claim upon retaliation as the result of refusal to promote a DCA practice that was intended to increase the safety of the anchorage of mobile and manufactured homes.

(continued)

(continued)

4

A-2509-05T5

 

October 10, 2006