WILFRED COLON v. PRUDENTIAL INSURANCE CO. OF AMERICA AND RICK RABIDEAU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4422-04T34422-04T3

WILFRED COLON,

Plaintiff-Appellant,

v.

PRUDENTIAL INSURANCE CO. OF AMERICA

AND RICK RABIDEAU,

Defendants-Respondents.

_____________________________________________________________

 

Submitted January 23, 2006 - Decided March 3, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10588-02.

Brickfield & Donahue, attorneys for appellant (Joseph R. Donahue, of counsel and on the brief).

Proskauer Rose, attorneys for respondent (Marvin M. Goldstein, of counsel; Mr. Goldstein and Mark A. Saloman, on the brief).

PER CURIAM

Plaintiff, Wilfred Colon, appeals the Law Division's March 18, 2005 order granting summary judgment dismissing his claim that he was retaliated against and discharged from his employment at defendant, Prudential Insurance Company of America (Prudential) by his immediate supervisor, defendant Rick Rabideau, in violation of New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and his claim that his discharge was a violation of public policy. We affirm.

Plaintiff was hired by Prudential as a business analyst on November 18, 1996, and worked continually for Prudential in varying capacities until his termination on November 8, 2001. He was promoted to Vice President of Corporate Learning Services in June 2000.

In the years 2000 and 2001, plaintiff was based in Roseland and reported to Jody Doele, Vice President for Corporate Learning Services. When Doele was replaced by Rabideau in May 2001, plaintiff began reporting to Rabideau. During the time that Doele and Rabideau supervised plaintiff, both were based in Newark and each reported directly to Frank Bordenaro, Prudential's Chief Learning Officer. From 2000 until May 2001, Rabideau was Vice President of Performance Enhancement for Prudential Relocation and Prudential Real Estate and Relocation Services (PRERS).

In late 1999, Prudential announced that it was going to shut down certain relocation services that it operated throughout the country and transfer PRERS to Phoenix, Arizona. At the time Rabideau was responsible for managing the relocation services and for formulating a learning process that would enable PRERS to replace its workforce with a comparable workforce in Phoenix. In order to assist in accomplishing this task, Rabideau retained the services of Dr. Howard Lewis, a software designer and owner of a company named Integrated Performance Solutions (IPS). Rabideau and Lewis had previously worked together at Apple Computers from 1989 through 1994 and had a social relationship. At the time IPS was initially retained by Rabideau on behalf of PRERS, Rabideau and plaintiff were peers working for different companies affiliated with Prudential.

Lewis and IPS assisted Rabideau in designing a computer system to manage the PRERS relocation project. In September or October 2000, Rabideau requested assistance from Prudential Corporate Learning concerning his desire to coordinate the learning management process he was developing with the system Corporate Learning was developing throughout Prudential. As part of his responsibility for the operations portion of the learning management system at Prudential Corporate Learning, plaintiff was asked to assist Rabideau in this effort.

Shortly thereafter, plaintiff set up a meeting with Rabideau to show Rabideau his department's learning management system. Plaintiff met with Rabideau, Lewis and approximately twenty other consultants who Rabideau brought to the meeting. According to plaintiff, it became apparent at the meeting that Lewis did not know what he was doing and that he did not have the necessary experience to complete the proposed project. In one of the follow-up meetings, plaintiff was informed by either Lewis or Rabideau that they had a relationship that extended "way back" in time.

Throughout the fall of 2000, Lewis and IPS continued to work with plaintiff and his team on the project. During this time, plaintiff was of the opinion that Lewis and IPS were being pushed upon Prudential by Rabideau. On October 2, 2000, plaintiff sent an e-mail to Doele informing her that Lewis lacked the competency to meet the goals of the project and that Rabideau lacked both the understanding of how the project actually worked and what it would take to get the job done.

On November 27, 2000, plaintiff was told by Doele that Rabideau agreed that Lewis was moving slowly and had a tendency to "over-engineer." Plaintiff believed that there was potential "unethical play" as a result of Rabideau's continued support of and use of Lewis' services. Plaintiff also believed it was inappropriate to bring a vendor to the table who could not produce a result specific to the task at hand.

In April 2001, plaintiff took a proposed vendor agreement between Prudential and another vendor to Prudential's Technology and Law Unit (TLU) for review. At that time, plaintiff had a discussion with the TLU regarding "the various relationships that can exist with 3rd party contract developers" such as Lewis. After that discussion, the TLU asked plaintiff to secure a copy of Lewis' contract with Prudential.

Pursuant to the TLU's direction, plaintiff secured a copy of Lewis' contract, which he forwarded to the TLU. The TLU reviewed the contract and found that the agreement departed from Prudential's standard requirements in a number of significant ways. They found (1) the agreement did not contain detailed specifications regarding the services and deliverables to be provided for the fixed fee of $180,000; (2) the descriptions of services and deliverables did not include any specifications or requirements; (3) the agreement departed from Prudential's standard technology contract requirements in that there was no acceptance clause giving Prudential the right to review and test deliverables; (4) the definition and protection of Prudential's confidential information was not as broad as Prudential typically requires; (5) there was no performance warranty; (6) there was no limitation on Prudential's liability; (7) there was no system security; and (8) there was no insurance clause requiring the vendor to carry certain minimal insurance coverages.

Plaintiff understood that Prudential had a code of ethics in place obligating employees to report violations of non-compliance with company policy. Plaintiff reiterated his strong concerns about Rabideau and his relationship with Lewis to Doele prior to her departure from Prudential in April 2001.

On April 20, 2001, plaintiff again voiced his concerns about Rabideau to Bordenaro, informing Bordenaro that he believed (1) there was no request for proposal (RFP) for the Lewis contract and no competitive bid process; (2) the market value for the services rendered by IPS was about one-half of what Lewis charged Prudential; (3) Lewis was quite limited in his expertise for the work enumerated under the contract; (4) the vendors retained by Rabideau for the project were largely academics who had little "know how" with which to accomplish the goals of the project; and (5) Rabideau and Lewis had been friends since college. Plaintiff did not assert that any money was being exchanged between Rabideau and Lewis but did contend that "this [w]as a very unethical arrangement which displayed extremely poor business judgment."

On that same date, Bordonaro forwarded an e-mail to Andrew Andalora, Chief of Prudential's Corporate Investigations Division (CID), indicating his understanding of the situation plaintiff had brought to his attention. Bordenaro noted that the contract "effected" by Rabideau and Lewis totaled approximately $1,300,000. Bordenaro recommended that CIS investigate these claims "for the extent of [Rabideau's] culpability, if any."

Andalora drafted a "memo for file" concerning a follow-up discussion he had with Bordenaro regarding plaintiff's allegations. Thereafter, Donald F. Sullivan, Director of CID, had CID conduct an investigation into plaintiff's allegations against Rabideau. Sullivan forwarded his investigative report on May 4, 2001 to Eric Schwimmer, the attorney in charge of Prudential's Labor and Employment Group.

In his report, Sullivan made the following observations: (1) IPS was incorporated just prior to performing work for PRERS; (2) PRERS appear[ed] to be the main, or only, client of the company; (3) there appear[ed] to be a previous relationship between Rabideau and Lewis; (4) it appear[ed] there were no RFPs and no other companies were considered [in awarding the contract]; (5) there was no review by [the TLU] of the agreement; and (6) that Rabideau has indicated that there was no conflict of interest between Prudential and IPS. Sullivan recommended that "Rich Rabideau and the principals of the companies involved should be interviewed for the purpose of establishing any pre-existing relationships."

On May 1, 2001, Sharon Taylor, a Corporate Vice President of Human Resources, met with plaintiff. Because Rabideau was to be promoted to Doele's position and would, therefore, be supervising him, plaintiff asked Taylor if he could be transferred out of Rabideau's department given his concerns about Rabideau and because he had cooperated in CID's investigation. The request for a transfer was never acted upon. About this time, plaintiff informed Rabideau that he was cooperating in Prudential's investigation of him relevant to Lewis and that he had been interviewed by Sullivan in connection with the investigation.

Plaintiff, during the time Doele was his supervisor, was repeatedly counseled by her concerning areas in which she "felt he was not meeting expectations." Specifically, she noted that he had a "need to develop the leadership skills that Prudential defines as part of their leadership development model." Plaintiff was also cited for "rubbing people the wrong way, [and] that he was being pretty abrupt with people." In sum, plaintiff demonstrated difficulty "[i]n [the] area of teamwork and organization, effectiveness and team building, . . . people skills." In early 2001, Doele considered terminating plaintiff's employment due to his ongoing behavioral problems. Instead, Doele and Bordonaro gave plaintiff his 2000 annual review, where he was counseled and given "a message about the importance of him being able to revise and change his ways." The message "was more than a counseling. It was a counseling and a caution." After Rabideau replaced Doele as plaintiff's direct supervisor, Rabideau and others continued to coach plaintiff on the same behavioral problems.

In October 2001, a subordinate of plaintiff, Zahra Jafar, charged plaintiff with sexual harassment. On November 8, 2001, plaintiff was informed by Rabideau that he had been placed on paid leave because Prudential was investigating a sexual harassment claim that had been filed against him by a subordinate. Lora Swindlehurst of Prudential's Equal Opportunity Complaint Investigation investigated Jafar's allegations, interviewed individuals who witnessed plaintiff's workplace behavior, and finalized her report on November 2, 2001.

Although there were no specific findings of sexual harassment of Jafar by plaintiff, Swindlehurst concluded that plaintiff disobeyed the directive "to not discuss this matter with anyone." Plaintiff had contacted a friend to discuss the matter and told the friend that if he told anyone that he discussed the matter, he would deny it. In violation of security, plaintiff sent e-mails that were dated after he was removed from the building, some of which were from his assistant's account. Overall, the evidence of plaintiff's interference with the internal investigation was "overwhelming."

Robin Katz, a Prudential Vice President and in-house counsel, subsequently met with Rabideau and Bordonaro, advising them of the facts Swindlehurst had gathered. She explained that the investigation conclusively proved that plaintiff interfered with the internal investigation of the sexual harassment claim and directly violated clear instructions. On November 8, 2001, based upon Katz's recommendation and after consultation with Maureen Hedden, a human resource consultant, Rabideau and Bordonaro terminated plaintiff's employment.

Plaintiff denies that he interfered with the sexual harassment investigation or that he did anything inappropriate to warrant his termination. Plaintiff claims that his employment was terminated after he had voiced his opinion thirteen months earlier to Prudential management that Rabideau might have violated Prudential's internal policy concerning the selection of outside vendors. At no time, either during his employment or in this litigation, did plaintiff assert that Rabideau or Prudential had violated any law, regulation or public policy.

In considering the CEPA claim, Judge Lombardi recognized that plaintiff's allegations, even if true, lacked an essential element of a prima facie claim, namely identification of a law, rule or clear mandate of public policy, which plaintiff reasonably believed could have been violated by Rabideau's alleged breach of Prudential's internal business practices. Noting that the record clearly established that plaintiff's CEPA claim arose out of his disagreement regarding the manner in which Prudential interpreted and applied its own internal vendor selection practices, the judge, after reviewing all of the material facts in the substantial record presented by the parties and giving plaintiff every reasonable inference, ruled that plaintiff failed to present evidence that he objected to an activity or practice which plaintiff reasonably believed violated a rule, law or regulation promulgated pursuant to law or was fraudulent or criminal, in violation of N.J.S.A. 34:19-c(1) or N.J.S.A. 34:19-3c(2):

This court has a hard time, and I find that I cannot reasonably infer from everything Colon said at the time in objecting to the conduct by [Rabideau] that it was objectively reasonably a violation of a criminal law . . . . It has to be that he reasonably believed that there had been criminal law. This is a business situation . . . particularly noting that Colon only made this objection . . ., I think approximately 18 months [after] the contract was trying to be performed by this consultant and they weren't getting a good result and it was coming to be realized that this particular consultant wasn't turning out to be competent . . . .

And to me it's just a garden variety that somebody perhaps not following company policy does make a bad contract and you don't get a lot of work out of somebody, and maybe you shouldn't have . . . relied so much on the personal relationship in giving him the work. He should have tried to find somebody who would be able to do this particular type of work. And after 18 months there was a realization by Colon that maybe this was a bad contract.

And that's all I think you can objectively determine that it was a bad contract entered into that [Rabideau] had agreed to.

The judge then reviewed plaintiff's allegation brought under N.J.S.A. 34:19-3c(3) and ruled that plaintiff also failed to present evidence that he objected to an activity or practice by Rabideau or Prudential, which plaintiff reasonably believed was incompatible with a clear mandate of public policy concerning the public health, safety or welfare:

I don't find anything that you can reasonably infer that there's complicity or a ratification by the employer as to [Rabideau] engaging in this activity differently by not complying with competitive bidding or not getting the right legal department to ratify it or not disclosing on paper that he had a personal relationship with these people . . . .

Here, all Colon was complaining about and I find he reasonably complained about is that this was a bad contract in which he had given it to some guy who had good credentials and he had worked with before and he had a personal relationship and after 18 months everybody's realizing it's a bad deal.

. . . .

I don't find that someone complying with internal policies for good business reasons in hiring a contractor that there's a great public policy mandate concerning whether companies are that business-wise to make sure that they get the best thing for their buck [in] making contracts and allowing people to hire people that may turn out to be incompetent or allowing them to hire them on non-competitive bid. The non-competitive bidding I think there's no mandated public policy interest with private corporations.

. . . .

[T]he fact it was just somebody doing some fast business dealing and letting out contracts that we're not getting our value for, that's all that Colon was complaining about and rightfully so. He articulates it as such . . . . I don't think it rises to the level of this public importance about ethics in business. I don't find that the facts support that.

Plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DISMISSING COLON'S CEPA CLAIM.

POINT II

THE TRIAL COURT ERRED IN DISMISSING THE FOURTH COUNT OF THE COMPLAINT.

Summary Judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In other words, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

On appeal, we apply the same standard: we first decide whether there was a genuine issue of material fact, and if there was no error, we decide whether the lower court's ruling on the law was in error. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Any legal determinations by a trial judge are reviewable by this court de novo. Manalapan Realty v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995).

I

The Legislature enacted CEPA "to protect from retaliatory action employees who 'blow the whistle' on organizations engaged in illegal or harmful activity." Young v. Schering Corp., 141 N.J. 16, 23 (1995) (citing Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 417-18 (1994)). CEPA safeguards the public by prohibiting retaliation "against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public, health, safety or welfare." Mehlman v. Mobile Oil Corp., 153 N.J. 163, 193-94 (1998).

In analyzing CEPA claims, New Jersey courts apply the three-stage burden shifting analysis articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Blakburn v. United Parcel Service, Inc., 179 F.3d 81, 92 (3d Cir. 1999); Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290 (App. Div. 2001). The plaintiff has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of CEPA retaliation by demonstrating: (1) an objectively reasonable belief that his employer violated a law or rule or regulation promulgated by law, or committed a fraudulent or criminal act, or acted in a manner incompatible with a clear mandate of public policy concerning the public welfare; (2) he performed a "whistle-blowing" activity as described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him; and (4) a causal connection existed between his whistle-blowing activity and the adverse employment action. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).

N.J.S.A. 34:19-3c(1) and (2) state in pertinent part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

. . . .

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 promulgated pursuant to law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

 
(2) is fraudulent or criminal;

To meet the summary judgment threshold pursuant to N.J.S.A. 34:19-3c(1) or (2), plaintiff is required to "'furnish the trial court with enough by way of proof and legal basis to enable the court to determine as a matter of law' that the plaintiff has identified 'the asserted violation with adequate particularity' for a jury's consideration." Klein v. University of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 40 (App. Div.) (quoting McLelland v. Moore, 343 N.J. Super. 589, 601 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002)), certif. denied, 185 N.J. 39 (2005). The trial court then "'must . . . find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true.'" McLelland, supra, 343 N.J. Super. at 600-01 (quoting Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied, 138 N.J. 267 (1994)). The trial court must also find that the employee reasonably believes that the law or public policy "would be violated if the facts as alleged are true[.]" Klein, supra, 377 N.J. Super. at 40 (citing Dzwonar, supra, 177 N.J. at 464). The court is then required to "determine that there is a substantial nexus between the complained-of conduct and the [identified] law or public policy[.]" Ibid. The motion will be granted in favor of the defendant if the law or public policy is not forthcoming. Ibid.

Plaintiff asserts that Rabideau should be found liable under an accomplice liability theory. Important to an accomplice liability claim is the existence or absence of allegations pertaining to illegal conduct. At the outset of the investigation, Andaloro prepared a memo for the file documenting plaintiff's allegations. This memo stated:

[I]t is alleged that Rabideau has a relationship with the unidentified vendor which pre-dates his Prudential employment that the vendor's services are overpriced and it is suspected he is receiving gratuities for the association. This vendor currently services Institutional under Rabideau's authority, is a small business, and Pru paid it high six-figures to low seven-figures in 2000.

However, plaintiff did not allege a financial connection between Rabideau and Lewis or illegal activities, though Bordonaro gave him every opportunity to do so. He asserted that it was an unethical arrangement displaying extremely poor business judgment. Apart from plaintiff's allegations that Rabideau was engaged in questionable behavior, none of the findings reported by Sullivan indicate that Rabideau behaved illegally.

Plaintiff never articulated any facts that could suggest Rabideau was the "accomplice" to any crime or illegal act of another person, and the record does not contain any facts that identify fraudulent or illegal acts allegedly committed by Rabideau or Prudential. Plaintiff never claimed that Rabideau had received kickbacks from Lewis or had engaged in anything fraudulent or illegal. We are satisfied that based upon the record that the trial court correctly concluded that plaintiff had not stated a viable claim under N.J.S.A. 34:19-3c(1) or (2).

Plaintiff relies on Estate of Roach v. TRW, Inc., 164 N.J. 598 (2000), to support his claim. However, the facts here are distinguishable from the facts presented in Roach. Roach had identified definitive criminal acts, including the falsification of expense forms and time cards, use of insider information, and payment of kick-backs. Id. at 604.

In contrast, plaintiff presented nothing more than his opinion that something was not right concerning the retention and performance records of IPS. While Roach complained about discreet criminal acts, plaintiff here reported only what he believed might be a possible violation of internal Prudential policy and not the commission of a crime or fraud.

N.J.S.A. 34:19-3c(3) states in pertinent part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

. . . .

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

. . . .

 
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

To sustain a cause of action under N.J.S.A. 34:19-3c(3), "the determination whether the plaintiff adequately has established the existence of a clear mandate of public policy is an issue of law[]" which will implicate a value judgment that must be made by the court, and not by the jury." Mehlman, supra, 153 N.J. at 187. "A basic requirement . . . is that the mandate of public policy be clearly identified and firmly grounded." MacDougall v. Weichert, 144 N.J. 380, 391 (1996). "A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate." Id. at 392; Cosgrove v. Cranford Bd. of Educ., 356 N.J. Super. 518, 524 (App. Div. 2003); Smith-Bozarth v. Coalition Against Rape & Abuse, Inc., 329 N.J. Super. 238, 245 (App. Div. 2000). In other words, "a 'clear mandate of public policy' conveys a legislative preference for a readily discernable course of action that is recognized to be in the public interest." Maw v. Advanced Clinical Communs., Inc., 179 N.J. 439, 444 (2004) (quoting N.J.S.A. 34:19-3c(3)). "A 'clear mandate' of public policy suggests an analog to a constitutional provision, statute, and rule or regulation promulgated pursuant to law such that, . . . there should be a high degree of public certitude in respect of acceptable verses unacceptable conduct." Ibid.

Furthermore, "[t]he legislative approach vis- -vis a 'clear' mandate of public policy bespeaks a desire not to have CEPA actions devolve into arguments between employees and employers over what is, and is not, correct public policy." Ibid. The public policy involved must be more than one "that is implicated." Id. at 444-45. To reach its determination, the court must determine whether "the employee's individual right . . . outweigh[s] the competing public interest . . . ." Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 100 (1992). The Court stated, "[a] 'clear mandate of public policy' must be one that on balance is beneficial to the public." Ibid. Frequently, the determinative factor rests on whether the dispute is public or private in nature. See Mehlman, supra, 153 N.J. at 188 (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.).

For example, in Maw, the plaintiff had a private dispute with her employer pertaining to a non-compete agreement. Maw, supra, 179 N.J. at 445. The plaintiff conceded that she knew proprietary, confidential information, and she did not contest the provisions which prevented her from divulging the information. Id. at 446. Therefore, the plaintiff's dispute pertained to whether the terms of the non-compete agreement were reasonable, as indicated by her repeated comments that if she signed the agreement it would affect "'her ability to find employment in her field,'" and that "'she believed that there was no legitimate business reason for defendants to require her to enter into a noncompete agreement.'" Ibid. The Court found that "[a]llowing plaintiff's admittedly private dispute with her employer to go forward under CEPA's rubric dilutes the statute's salutary goals." Ibid.

Judge Lombardi, in granting summary judgment, explained:

What's the strong mandate of public policy? This is a private corporation. Non-competitive bidding. This is not a public contract. This is a private company. They could give all the work they want to a sister company without competitive bidding knowing that it's 20 percent higher than what the market is but for business reasons, they're doing it. Why is that non-competitive contract a violation of public policy in private industry?

The judge held:

This is a case in which somebody is alleged, and I found there was an objective, reasonable belief that they weren't following good policy so Prudential would get good value and good money, and basically, they were [costing] the company money.

The law you reference[] was the CEPA law and I've made my determination on that. So it's redundant . . . there's a public policy that people should make sure that companies have the best profit margins even though they're not going to share it with the general public or their clients, perhaps, but they're just going to keep it as profit for the shareholders or if it's a private company, whoever owns it.

The judge also rejected plaintiff's assertion that Rabideau's alleged non-conformity to Prudential's vendor contracting practices violated some unidentified "code of conduct [which is] universal throughout corporate America":

Companies have different policies . . . .

[W]hether you do competitive bidding or not depends on company's industries, long-term relationships with other companies. It depends on a lot of things, so I don't think it's across the board whether on every contract it should be competitive bidding or not . . . . I don't agree that the Prudential policies are across the board.

Prudential's internal vendor retention practices were private in nature. Plaintiff knew this. PRERS was a non-participating subsidiary of Prudential, which according to Rabideau "means that we were not a wholly-owned subsidiary; that we had many of our own processes. . . . We had our own compensation plan. We didn't participate in the Prudential pension plan. We had our own benefits package and our own 401(k)."

When an employee simply disagrees with the lawful practices of his employer he cannot seek protection under the CEPA. This is so because CEPA "was not intended to provide a remedy for wrongful discharge for employees who simply disagree with an employer's decision, where that decision is entirely lawful." Young v. Schering Corp., 275 N.J. Super. 221, 237 (App. Div. 1994). For example, an employer has the legal right to determine the type of scientific research it engages in, and a plaintiff cannot object to his employer's choice to research a drug because it is controversial. Id. at 236-37. In another instance, when a company adopted lawful regulations concerning the disclosure of client files, we found that the plaintiff could not use the company's regulation as a basis for his CEPA claim. Smith-Bozart, supra, 329 N.J. Super. at 248-49.

To retain IPS's services, Rabideau disclosed his prior work experience with Lewis to his direct supervisor, received internal approvals from his supervisors, completed the corporate requisition paperwork, and worked with PRERS' legal department to write the IPS contract. Moreover, Rabideau sent copies of the signed contract to plaintiff after plaintiff requested the documents, and did not "draw[] the connection that [plaintiff] instigated Prudential's investigation into my compliance with Prudential's internal vendor management guidelines." The consulting materials Rabideau sent to plaintiff "contained all required Authorizations of my then-supervisor, David Franzetta, and his superiors at PRERS."

Furthermore, internal codes of ethics rarely rise to the level of a clear mandate of public policy. It is true that "[i]n certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy . . . . [A] code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient." Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). In other words, a professional code of ethics does not contain an expression of public policy if it only serves the interest of a profession. Ibid.

"In order to satisfy the second element, plaintiff must show that: (i) he performed a 'whistleblowing' activity; (ii) he was terminated; and (iii) there was a causal connection between his whistleblowing activity and the termination." Blackburn v. United Postal Serv. Inc., 3 F. Supp. 2d 504, 516 (D.N.J. 1998). As to the latter, the record reflects ample evidence that plaintiff was dismissed for something other than his objection to Rabideau's interaction with IPS. During the time plaintiff objected to Rabideau's behavior, he was the subject of a sexual harassment investigation. Although there were no specific findings that plaintiff sexually harassed Jafar, Swindlehurst concluded that plaintiff disobeyed the directive "to not discuss this matter with anyone." The grounds for the dismissal were based on plaintiff's attempted interference with the internal investigation.

We are convinced that summary judgment was correctly granted on plaintiff's CEPA claim because he failed to demonstrate an objectively reasonable belief that his employer violated a law, rule or regulation promulgated by law or committed a fraudulent or criminal act in a manner incompatible with a clear mandate of public policy, thus failing to establish a prima facie CEPA claim.

II

Plaintiff contends that the trial court erred in dismissing the fourth count of his complaint. It is clear that "the institution of an action in accordance with [the CEPA] shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law." N.J.S.A. 34:19-8. In interpreting this provision, the Supreme Court in Young held that

[T]he waiver exception means, . . . that once a CEPA claim is "instituted," any rights or claims for retaliatory discharge based on a contract of employment; collective bargaining agreement; State law, whether its origin is the Legislature, the courts, the common law or rules of court; or regulations or decisions based on statutory authority, are all waived.

. . . .

Parallel claims based on those rights, privileges and remedies are waived because they represent multiple or duplicative claims based on retaliatory discharge.

 
[Young, supra, 141 N.J. at 29.]

In other words, "[a] claim must have a basis independent of the CEPA claim in order to be exempt from the waiver provision." Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 318 (App. Div. 1997). It is only those "[c]laims that involve collateral issues and 'require different proofs than those needed to substantiate' a CEPA claim, . . . [that] 'are not within the category of actions that are deemed to be waived.'" Ibid. (quoting Young, supra, 275 N.J. Super. at 238). It is true that an employee is permitted "to pursue a common-law tort or contract claim that is distinct from the CEPA claim." Higgins v. Pascack Valley Hosp., 158 N.J. 404, 421 (1999) (citing Young, supra, 141 N.J. at 25-26). However, we dismissed a plaintiff's public policy claim that alleged his dismissal was retaliation for his whistleblowing activity because he asserted the same claim under CEPA. Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 492-93 (App. Div.), cert. denied, 136 N.J. 298 (1994). See also Baldassare v. New Jersey, 250 F.3d 188, 202 (3d Cir. 2001) (dismissing plaintiff's state law claims because they arise from the same set of facts surrounding his retaliation claim, and CEPA prohibits litigating duplicative claims). Here, it is clear that the arguments and facts supporting this claim, as well as the CEPA claim, are identical.

Affirmed.

 

Plaintiff's notice of appeal asserts that the trial court erred in granting total summary judgment when it dismissed plaintiff's four count complaint in its entirety. Plaintiff's list of appealable issues, however, only asserts error in dismissing plaintiff's CEPA and public policy claims.

N.J.S.A. 2C:2-6 states that "a person is guilty of an offense" if it is committed "by the conduct of another person for which he is legally accountable."

According to the Prudential website, www.prudential.com, on December 13, 2001, Prudential Insurance Co. of America common stock began trading on the New York Stock Exchange. Therefore, December 13, 2001 is the date that Prudential stock was first traded publicly.

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A-4422-04T3

March 3, 2006