HELEN LEVINS v. GREGORY M. BRACCIA, M.D.

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(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4290-07T24290-07T2

HELEN LEVINS and

ROBERT LEVINS,

Plaintiffs-Appellants,

v.

GREGORY M. BRACCIA, M.D.,

individually and d/b/a GREGORY

M. BRACCIA, M.D., L.L.C.,

Defendant-Respondent.

________________________________________________________________

 

Argued March 24, 2009 - Decided

Before Judges Skillman, Graves and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2980-06.

Stuart A. Wilkins argued the cause for appellants (Davis & Mendelson, L.L.C., and Law Offices of Stuart A. Wilkins P.C., attorneys; Howard Mendelson, of counsel; Mr. Wilkins, on the brief).

Michelle J. Douglass argued the cause for respondent (The Douglass Law Firm, L.L.C. attorneys; Ms. Douglass, on the brief).

PER CURIAM

Plaintiffs Helen and Robert Levins appeal from an order granting summary judgment, resulting in the dismissal of Helen's claims alleging defamation and violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 and Robert's derivative claims. We affirm.

Giving plaintiffs the benefit of all legitimate inferences, R. 4:46-2(c), the facts can be summarized as follows.

Helen Levins ("plaintiff" or "Levins") was employed as an office manager by defendant Gregory M. Braccia, M.D., from August 2003 until December 2005. Braccia gave plaintiff his credit card receipts to categorize as either personal or business expenses as part of her duties. Braccia admitted that "sometimes" he charged personal expenses to his business credit card. Levins contends that Braccia instructed her to designate such expenses as business expenses in his records. Braccia also employed both a bookkeeper, Terri Cattani, and an accountant, Richard Capasso. Levins gave the records she prepared to the bookkeeper and accountant, and Capasso made the ultimate determination about which expenses were treated as business expenses for tax purposes. Nevertheless, plaintiff allegedly became concerned that if the designation of business expenses were deemed erroneous by the Internal Revenue Service, Braccia would blame her. She also feared that she could be punished for aiding Braccia in what she perceived to be tax fraud.

In July 2005, Capasso met with Levins in conjunction with the preparation of Braccia's 2004 tax return. In response to Levins's questions about how to classify expenses, Capasso told her "if you're classifying something, classify it to where you believe it should go, and in doing that, we're protecting the client from [himself]." In his deposition, Capasso testified that he gave this advice to all his clients and their bookkeepers or office managers. Levins considered Capasso's statements to be a "warning" that she took "very seriously."

Levins "began seriously questioning Dr. Braccia about his instructions to [her] concerning the improper characterization of his expenses." Braccia "became more and more agitated and angry" with her. The friendship she described as "wonderful" became "extremely strained" and their "business relationship was jeopardized."

According to Levins, she had a confrontation with Braccia in early August 2005. Braccia eavesdropped on a telephone conversation between Levins and his bookkeeper, Cattani, about Levins's handling of some of Braccia's personal and business finances. Levins did not share her view that Braccia improperly characterized expenses but made "certain general inquiries . . . which confirmed [her] suspicions that Dr. Braccia's instructions to [her] about how to characterize his expenses likely constituted tax fraud." After this conversation, Braccia started yelling at her for discussing his finances with Cattani and told her that it was none of her business how he characterized personal expenses. Levins recalled saying something to the effect that she "was not going to aide [sic] and abet him in illegal activities, such as tax fraud and his response . . . was he was the boss."

Levins stated that they had repeated arguments thereafter about this issue. However, she admitted that Braccia "never actually threatened to fire [her] if [she] threatened to report him to any third parties for his wrongdoing." Braccia consistently responded that "he was boss" and that she needed "to do as he says."

December 2, 2005, was a Friday. This was a day off for Shirley Biancorroso, a nurse in defendant's office. According to Biancorroso's affidavit, Levins nevertheless called her approximately nine times about office-related matters and told her she had to return four telephone calls from patients. Biancorroso determined that the calls were non-emergent and told Levins that Braccia had told her that such calls did not need to be returned right away, particularly on her day off. Levins then called Braccia and told him that he had to return the phone calls because Biancorroso refused to do so. Braccia became angry with Levins for not managing the situation on his day off.

Plaintiff's notes of December 5, 7 and 8, 2005, were included in the record. Plaintiff stated that Braccia rebuffed her requests to discuss the events of December 2, again stating that he was the boss and she was the employee and that he would discuss it when he was ready. Her notes reflect that she told him on December 2 that "he doesn't seem happy and he should take the weekend to decide if he wants to continue to work with [her]." She stated that he laughed in reply and continued to refuse her demand to discuss the matter until he was ready to do so.

Braccia stated in his affidavit that Levins took offense at his loss of temper and expected an apology. Braccia did not apologize.

On Wednesday, December 7, 2005, plaintiff left work at 10:00 a.m. leaving the following letter to Braccia:

Unfortunately, I am going to have to leave to see my medical doctor. The situation in the workplace (your verbal, obsenity [sic] ridden language), your refusal to discuss the situation and your ignoring me in the workplace and refusal to discuss anything with me, has caused me undue stress.

After my medical doctor visit, I will inform you of the situation. At this time, I am requesting I be carried for paid sick leave.

In support of his motion for summary judgment, defendant submitted an affidavit in which he stated that he did not receive any communication from Levins for two work days after she left, and he "concluded at 4pm on December 8, 2007, that Ms. Levins had no intention of returning to her job." Both Biancorosso and Sharon Valenti, a part-time receptionist, confirmed this version of events and that plaintiff never returned to work. Although she disputed abandoning the job, plaintiff did not dispute failing to call defendant on either December 7 or 8. Defendant's letters to the New Jersey Department of Labor & Workforce Development, Unemployment Insurance Office, state that he had not received any communication from plaintiff as of December 15, 2005.

Plaintiff contends that Braccia made two defamatory statements about her after she left his employ. The first is described in Braccia's affidavit as follows:

Nurse Biancorosso stated to me that Helen Levins had mentioned that she believed I was in love with her and would have liked to have had an affair with Levins. Surprised at this comment, I responded that the only person that Helen would possibly have had an affair with was not me but possibly Dr. Lowe.

He explained that the reason for his suspicion was that he had seen plaintiff's and Dr. Lowe's cars in the parking lot after hours on Wednesday evenings, when plaintiff's husband played tennis, but had not seen either of them in their offices on such occasions.

Braccia made the other allegedly defamatory statement in April 2006 to Dr. Leslie M. Meltzer, a psychologist to whom he had previously referred Levins. Braccia stated that after Levins's employment ended, she stopped by the office and contacted employees by telephone and email "continuously" despite his repeated requests that she stop doing so. According to Braccia, he "became so concerned over Helen's irrationality" that he contacted Dr. Meltzer. He asked Dr. Meltzer whether she was "unable to cut her ties with the office as a result of a possible affair she had with Dr. Lowe." Braccia stated that the "conversation was to remain confidential." Braccia characterized his telephone call to Dr. Meltzer as "a discussion regarding a medical opinion drawn by the referring doctor, in an effort to optimize the patient's care."

Dr. Meltzer did not share this view. She stated that Braccia "initially told [her] that he was calling [her] because he was 'concerned' about Mrs. Levins' behavior and her emotional state." Without a release, Dr. Meltzer was unable to "discuss" plaintiff but could listen to Braccia's concerns. According to Meltzer, Braccia "also mentioned that Mrs. Levins was having an 'affair with one of the doctors,' though he added that he never witnessed it." He gave her the same explanation regarding cars in the parking lot that he had given Biancorroso. Dr. Meltzer reported that there was nothing in her treatment notes that suggested that plaintiff was having such an affair.

Plaintiff filed a complaint on April 20, 2006, alleging the following causes of action: breach of employment contract, wrongful discharge, CEPA violation, violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, intentional infliction of emotional distress, defamation, breach of implied covenant of good faith and fair dealing and loss of consortium.

Defendant's motion for summary judgment was granted, dismissing the complaint in its entirety. Plaintiff appeals from the dismissal of her CEPA and defamation claims and seeks the reinstatement of emotional distress and loss of consortium claims in the event that the dismissal of either the CEPA or defamation claim is reversed.

Plaintiffs raise the following issues on appeal:

POINT I

THE LOWER COURT COMMITTED ERRORS OF LAW THAT REQUIRE REVERSAL OF THE GRANTING OF SUMMARY JUDGMENT DISMISSING PLAINTIFF'S CLAIMS.

POINT II

THE COURT BELOW FAILED TO GIVE ANY WEIGHT TO THE REPORT OF JOHN CRAYTON PLAINTIFF'S EXPERT.

POINT III

BRACCIA'S STATEMENTS TO DR. MELTZER AND NURSE BIANCOROSA [SIC] WERE DEFAMATORY.

POINT IV

PLAINTIFF'S DERIVATIVE CLAIMS OF EMOTIONAL DISTRESS AND LOSS OF CONSORTIUM SHOULD BE REINSTATED.

I.

We first consider plaintiff's CEPA claim. N.J.S.A. 34:19-3(c) provides 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]

(2) is fraudulent or criminal . . . .

 

"Retaliatory action" is defined as "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(e).

To maintain a cause of action under these subsections, plaintiff must satisfy the following elements:

(1) she reasonably believed that her employer's conduct was violating the law;

(2) she performed a "whistle-blowing" activity described in the statute;

(3) an adverse employment action was taken against her; and

(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); accord Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999).

In granting summary judgment, the motion judge accepted plaintiff's assertion that she was terminated for the purpose of the motion but concluded that plaintiff had failed to satisfy the first, second or fourth prongs described above. On appeal, we review the summary judgment motion de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We disagree with the motion judge's analysis but affirm the order granting summary judgment because plaintiff has failed to show through competent credible evidence that a genuine issue of fact exists as to both an adverse employment action and a causal connection between the whistle-blowing activity and the termination of her employment. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

In discussing the requirements of the first prong of a CEPA claim, the Supreme Court has explicitly stated that the plaintiff need not show that her employer "actually violated the law." Dzwonar, supra, 177 N.J. at 462. All that is required to satisfy this prong is that the plaintiff show that she "reasonably believes" that her employer's conduct was violating the law. Ibid.; Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000); Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 40 (App. Div.), certif. denied, 185 N.J. 39 (2005); Gerard v. Camden County Health Servs. Ctr., 348 N.J. Super. 516, 522 (App. Div.), certif. denied, 174 N.J. 40 (2002); see also Turner v. Associated Humane Soc'ys, Inc., 396 N.J. Super. 582, 597-98 (App. Div. 2007). Plaintiff is not charged with precise legal knowledge as to what constitutes a violation of the law. Her stated concern that tax fraud was being committed by the labeling of personal expenses as business expenses must be treated "indulgently." Id. at 598; Gerard, supra, 348 N.J. Super. at 524. Because she has presented "an arguably reasonable basis for believing that defendant[] engaged in activity" that violated the tax laws, she has presented prima facie evidence of the first prong that is sufficient to withstand summary judgment. See Turner, supra, 396 N.J. Super. at 598.

As to the second prong, it is undisputed that plaintiff complained to Braccia directly about the labeling of expenses and his recurrent reply was that he was the boss and she should do as she was told. An activity protected by CEPA occurs when an employee "[o]bjects to, or refuses to participate in any activity . . . or practice which the employee reasonably believes . . . is in violation of a law." N.J.S.A. 34:19-3(c)(1). Plaintiff's complaints to Braccia plainly satisfy this prong for summary judgment purposes. See Maimone v. City of Atl. City, 188 N.J. 221, 231 (2006) (stating "an employee may pursue an action under [N.J.S.A. 34:19-3(c)(1)] based on objections to employer conduct that he or she reasonably believes violated any law, rule or regulation").

The third prong of plaintiff's CEPA claim required evidence of an adverse employment action. The parties agree as to many of the facts that relate to this element. Indeed, plaintiff admits that defendant never threatened to terminate her employment. Their conclusions differ sharply, however. Plaintiff claims that her employment was terminated. Defendant contends that she abandoned her employment.

In support of his motion for summary judgment, defendant submitted "a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted," as required by Rule 4:46-2(a). The statements of fact relating to the events of December 2 through 8, 2005 were supported by affidavits submitted by defendant, Shirley Biancorosso and Sharon Valenti.

"When, as here, a motion for summary judgment is made, the party opposing that motion bears the affirmative burden of responding. . . . That burden is not optional . . . ." Polzo v. County of Essex, 196 N.J. 569, 586 (2008). To oppose the motion, plaintiff was required to file a responding statement either admitting or disputing each of the facts in the movant's statement. Lyons v. Twp. of Wayne, 185 N.J. 426, 435 (2005); R. 4:46-2(b). Despite a delay of nearly six months in filing opposition to the motion, she did not do so. Instead, she submitted her affidavit, which made references to some but not all numbered paragraphs in defendant's statement of material facts; two affidavits from her psychologist, Dr. Leslie Meltzer, and an affidavit from Diane Persson, a scheduler for defendant. Plaintiff argued that these affidavits reflected "significant factual disputes" that precluded summary judgment.

However, the affidavits submitted by plaintiff fail to dispute the essential facts relied upon by defendant, including her departure without notice and refusal to respond to Braccia's efforts to contact her. In fact, her notes reveal that she took steps to avoid having contact with him. Defendant left a message on her cellphone regarding her abandonment of her job after two business days of failed efforts to contact plaintiff and after plaintiff's ultimatum on the prior Friday that defendant needed to decide if he wanted to continue working with her. Plaintiff's opposition did not include any additional facts to refute the reasonableness of defendant's conclusion that she had abandoned her job. There is, for example, no evidence that she made any effort to contact defendant to correct his conclusion, if mistaken. In fact, according to defendant's letters to the unemployment office, plaintiff had still not communicated with him as of December 15. Offering no additional facts, plaintiff rests upon her own conclusory statement that her employment was terminated and Persson's equally conclusory statement that it was her "impression that Mrs. Levins simply needed a few days off from work . . . ."

CEPA defines "retaliatory action" as 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(e) (emphasis added). The action itself must be a "completed personnel action that [has] an effect on either compensation or job rank," Beasley v. Passaic County, 377 N.J. Super. 585, 606 (App. Div. 2005); see also Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002), appeal dismissed, 177 N.J. 217 (2003); Keelan v. Bell Commc'ns Research, 289 N.J. Super. 531, 539 (App. Div. 1996), and "does not encompass action taken to effectuate the 'discharge, suspension or demotion.'" Keelan, supra, 289 N.J. Super. at 539. The action complained of here consists of defendant's not unreasonable conclusion that plaintiff had abandoned her employment. This was his interpretation of conduct that she does not dispute. Even granting plaintiff the benefit of all legitimate inferences, we are unable to conclude that plaintiff's abrupt departure from the workplace, with little notice and no responsive communication thereafter, constitutes prima facie evidence of an "adverse employment action taken against an employee" within the meaning of the statute. (Emphasis added.)

Even if the challenged action were considered an adverse employment action, plaintiff has failed to present prima facie evidence of a causal connection between the events of December 7 and 8, 2005, and her earlier objections regarding the labeling of defendant's expenses. "The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific." Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997). To prove the requisite causal link, plaintiff is permitted to proceed under a "mixed motive" theory or a "pretext" theory. Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000); Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290 (App. Div. 2001). The "mixed motive" theory requires evidence of "conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged [retaliatory] attitude" and which directly relate to the challenged employment decision. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995). Since plaintiff has acknowledged that defendant never threatened to terminate her employment in conjunction with her objections and has no other direct evidence of a retaliatory motive, this is a "pretext" case. As a result, plaintiff may rely upon circumstantial evidence "to establish that [her] protected conduct was a substantial or motivating basis" for defendant's statement that she had abandoned her employment. Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 611 (D.N.J. 2003).

In addressing this issue, courts have often focused on the temporal proximity of the employment action and whether there was "evidence of ongoing antagonism." Id. at 612. In Hancock, this court affirmed an order granting summary judgment in part because the plaintiffs had failed to establish a nexus between the protected activity and the allegedly retaliatory actions taken against them. We noted that temporal proximity alone is insufficient to establish causation and, although there was "most likely animosity between plaintiffs [and their superiors] as a result of the investigation," summary judgment was appropriate because "plaintiffs failed to demonstrate that they were treated differently from any of the other" employees. Hancock, supra, 347 N.J. Super. at 361.

Although plaintiff was certainly not limited to evidence of temporal proximity and ongoing antagonism to establish her prima facie case, that is the nature of the evidence she proffered here. We review the evidence within the context of the circumstances as a whole.

There were approximately four months between plaintiff's confrontation with defendant regarding the labeling of expenses and the end of her employment. Although our courts do not apply any bright-line test that cuts off causation after a specific lapse of time, some federal courts have concluded that a lapse of such duration supports an inference that a retaliatory motive was absent. See Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (granting summary judgment because disciplinary letter issued four months after discrimination charge filed had insufficient causal link to employer action); Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272-73 (6th Cir. 1986) (reversing judgment after a bench trial and holding that discharge four months after filing of discrimination charge not causally linked to adverse employment action); see also Tasadfoy v. Ruggiero, 365 F. Supp. 2d 542, 551 (S.D.N.Y. 2005) ("Three months is on the outer edge of what courts in this circuit recognize as sufficiently proximate to admit of an inference of causation."). Given the circumstances in this case, the lapse of approximately four months between the August confrontation and the end of plaintiff's employment in December does not support an inference that a retaliatory motive was a substantial factor in the challenged action.

Although she contends that her relationship with defendant deteriorated after she voiced her objections, plaintiff has not cited any example of antagonism or retaliatory animus in the intervening months. To the extent that there were additional arguments regarding this issue in the interim, defendant's unvarying response was that he was the boss and that plaintiff had to do as he said. Moreover, despite the alleged worsening of their relationship, defendant celebrated plaintiff's birthday in November by giving her a $200 gift certificate, flowers and a cake. Plaintiff wrote to him one week before her employment ended, thanking him for his "thoughtful and generous" birthday gift, and stated, "You are such a special person, and I appreciate your making my day a special one too! As always, your friendship is the most special gift of all." Therefore, the documented interaction most recent in time to the events of December betrayed no antagonism or even a seriously deteriorated relationship.

If an employer gives a false reason or inconsistent explanations for the challenged employment action, that circumstance can be relevant to a determination of causation. See Bowles v. City of Camden, 993 F. Supp. 255, 265 (D.N.J. 1998); Donofry, supra, 350 N.J. Super. at 292-93. There is no evidence that defendant ever deviated from taking the position that plaintiff abandoned her employment. To the contrary, the same reason he provided to the unemployment office a week after plaintiff's departure was entirely consistent with this view.

Another circumstance to be considered regarding the element of causation is plaintiff's own conduct on December 7 and thereafter. Even if her abrupt departure and failure to respond to defendant's calls is not considered an intervening and legitimate cause for the challenged employment action, see Tasadfoy, supra, 365 F. Supp. 2d at 551, this evidence strongly undercuts any inference that a retaliatory motive was a substantial or determinative factor in the termination of plaintiff's employment.

Therefore, we conclude that summary judgment was properly granted here because plaintiff failed to present prima facie evidence regarding two essential elements of her claim: that the challenged action constituted an "adverse employment action taken against" her and that there was a causal connection between her protected activity and the challenged action.

II.

We next turn to plaintiff's argument that the court erred in dismissing her defamation claim.

The Restatement (Second) of Torts 559 (1977) defines a defamatory statement as one that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The question whether a statement may be defamatory is a question of law. Kotlikoff v. Cmty. News, 89 N.J. 62, 67 (1982). In determining that question, courts consider the "content, verifiability, and context of the challenged statement[]." Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). The content of the statements here, an allegation of adultery, can reasonably be considered susceptible of a defamatory meaning. See Time, Inc. v. Firestone, 424 U.S. 448, 459, 462, n.7, 96 S. Ct. 958, 967-69, 47 L. Ed. 2d 154, 166-67 (1976); Hawkins v. Harris, 141 N.J. 207, 213, 222 (1995); Gnapinsky v. Goldyn, 23 N.J. 243, 250-51 (1957). However, after reviewing the verifiability and context of these statements, we conclude that the statements are not defamatory.

"Verifiability" is a critical factor in our determination that Braccia's statements are not defamatory. In Ward, the Supreme Court analyzed the principles that lay at the core of tests used to determine whether a statement is defamatory:

True statements are absolutely protected under the First Amendment. . . . Factual statements, unlike non-factual statements, are uniquely capable of objective proof of truth or falsity. Opinion statements, in contrast, are generally not capable of proof of truth or falsity because they reflect a person's state of mind. Hence, opinion statements generally have received substantial protection under the law.

[Ward, supra, 136 N.J. at 530-31.]

The link between verifiability and defamation is forged, then, not only because truth is an absolute defense but also because as a statement loses its character as a factual statement and becomes an impression, an evaluation of facts or a thought, it gains greater entitlement to the protection of the First Amendment. As the Supreme Court observed, "Requiring that a statement be verifiable ensures that defendants are not punished for exercising their First Amendment right to express their thoughts." Id. at 531. Verifiability is also required because without a "plausible method of verification," the trier of fact will have to resort to speculation to determine whether the statement is true or false. Ibid.

However, characterizing a statement as an opinion does not trigger a "wholesale defamation exemption." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S. Ct. 2695, 2705, 111 L. Ed. 2d 1, 17 (1990); Ward, supra, 136 N.J. at 531. Further review is needed to determine to what degree the statement relies upon facts. A defamatory opinion statement becomes actionable only when the statement "explicitly or impliedly rests on false facts that damage the reputation of another." Ward, supra, 136 N.J. at 531. The Restatement, supra, 566 described this principle as follows: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." Kotlikoff, supra, 89 N.J. at 69. The Supreme Court explained the distinction this section draws between "protected expressions of opinion and unprotected false statements of fact":

The first, or "pure", kind is found when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then states a view as to the plaintiff's conduct, qualifications or character. "Pure" expression of opinion occurs also when the maker of the comment does not spell out the alleged facts on which the opinion is based but both parties to the communication know the facts or assume their existence and the statement of opinion is obviously based on those assumed facts as justification for the opinion. The second, or "mixed", type of expression of opinion is one that, while an opinion in form or context, is apparently based on facts about the plaintiff or his conduct that have neither been stated by the defendant nor assumed to exist by the parties to the communication.

[Id. at 68-69.]

See also Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 147-48 (1986). Applying the Restatement approach, it is only the last of these, the "mixed" type of expression, that can be actionable. See also Nanavati v. Burdette Tomlin Mem'l Hosp., 857 F.2d 96, 107 (3d Cir. 1988), certif. denied, 489 U.S. 1078, 109 S. Ct. 1528, 103 L. Ed. 2d 834 (1989); Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446, 452-53 (3d Cir. 1987).

When we assess the verifiability of Braccia's statements, we note that he stated the facts upon which he based his opinion, i.e., his observations of the cars in the parking lot, to both Biancorroso and Meltzer. He acknowledged to Dr. Meltzer that he had not actually witnessed anything more. Therefore, in each case, the only fact that Braccia relied upon in forming the conclusion was disclosed and certainly verifiable. No evidence has been presented to indicate that the fact relied upon was false. There is no suggestion that Braccia intimated to either Biancorroso or Dr. Meltzer that he had other, undisclosed, facts within his knowledge to support his conclusion. Both listeners were fully capable of appreciating what inferences Braccia had drawn from the disclosed facts to form his opinion as well as the strength of those inferences. Defendant's statements, therefore, fit squarely within the category of "pure" opinion entitled to constitutional protection that is expressed "when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then states a view as to the plaintiff's conduct, qualifications or character." See Kotlikoff, supra, 89 N.J. at 68-69.

Our conclusion that defendant's statements were not defamatory is further supported by an examination of the context in which they were made. "[C]ourts must 'consider the impression created by the words used as well as the general tenor of the expression,' as experienced by a reasonable person." Ward, supra, 136 N.J. at 532 (citation omitted). The "nature of the listeners' understanding" is a key factor in this analysis. Nanavati, supra, 857 F.2d at 107.

Dr. Meltzer understood that defendant and her patient were in an essentially adversarial situation at the time of the statement and, based upon her knowledge of the facts, rejected Braccia's opinion. Further, the record indicates that, despite their differing views as to whether plaintiff was a mutual patient, defendant intended for the information to be confidential and Dr. Meltzer intended to treat it as such. This is not a context in which the statement is likely to "harm the reputation of another as to lower [her] in the estimation of the community or to deter third persons from associating or dealing with [her]." See Restatement, supra, 559.

The statement made to Biancorroso is even less likely to create such harm. Defendant made the statement as a response to Biancorroso's statement that plaintiff believed that defendant wanted to have an affair with her. This was apparently an unplanned exchange. As the Supreme Court has observed, "spoken words often do not evidence . . . [the] level of deliberation" that customarily precedes words published in a newspaper or magazine. Ward, supra, 136 N.J. at 528 (citing Restatement, supra, 568(3)). The Court found this distinction significant "because the apparent deliberation of the speaker or writer will influence how a reasonable audience perceives the speech." Ibid. As Biancorroso introduced the topic and Braccia's remark was a spontaneous, if not startled, response, it is evident that his comment was not the product of thoughtful deliberation and was unlikely to be perceived as such by Biancorroso.

We therefore find that defendant's statements were constitutionally protected expressions of opinion and that plaintiff's defamation claim was properly dismissed.

As a result of our holdings, plaintiffs' argument regarding the reinstatement of their derivative claims is moot.

Affirmed.

 

The motion judge dismissed claims for breach of employment contract, wrongful discharge and breach of the implied covenant of good faith and fair dealing on the grounds that they were subject to the CEPA waiver provision. See N.J.S.A. 34:19-8. That ruling is not challenged.

Plaintiff initially contended that a variety of other complaints she made while employed were also protected activities. On appeal she has acknowledged that these complaints do not constitute protected conduct under CEPA.

As a result of this holding, we need not address plaintiffs' argument that the motion judge failed to give adequate consideration to the evidence presented by their expert.

A similar level of conduct is sufficient where a disclosure forms the basis for the whistle-blowing activity under N.J.S.A. 34:19-3(a). See Roach, supra, 164 N.J. at 614-15; Turner, supra, 396 N.J. Super. at 598; Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super. 467, 474 (App. Div. 2002), aff'd o.b., 179 N.J. 81 (2004).

(continued)

(continued)

27

A-4290-07T2

June 16, 2009

 


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