HENRY H. THOMAS, Jr v. PRINCETON UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0744-12T2

HENRY H. THOMAS, Jr.,

Plaintiff-Appellant,

v.

PRINCETON UNIVERSITY, ANNE

ST. MAURO, and MARK BURSTEIN,

Defendants-Respondents.

_________________________________

June 14, 2013

Argued May 28, 2013 Decided

Before Judges Parrillo, Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2468-09.

William J. Koy argued the cause for appellant (Law Firm of William J. Koy,

attorneys; Mr. Koy, on the brief).

Thomas J. Barton argued the cause for respondents (Drinker Biddle & Reath, attorneys; Mr. Barton and Maria L. H. Lewis, on the brief).

PER CURIAM

In this employment case alleging age discrimination and various common-law claims, plaintiff appeals from an April 1, 2010 order dismissing five counts of his complaint pursuant to Rule 4:6-2(e), and an August 31, 2012 order granting summary judgment to defendants on the remaining counts. We affirm and reverse in part regarding the April 2010 order, and remand and direct the court to make findings of fact and conclusions of law pertaining to the August 2012 order.

In 2003, Princeton University (Princeton) hired plaintiff to act as a construction manager regarding the Lewis Library building. Princeton initially indicated to plaintiff that "[t]he position is a term position until February[] 2007." Although he started out with a specified term of employment, Princeton extended plaintiff's term of employment several times due in part to his favorable performance reports and incomplete status of the library project.

Plaintiff's 2004 staff performance appraisal indicated that he was "a conscientious project manager and is committed to solid achievement in leading the management of the Science Library, a very complex and challenging assignment."1 In 2005, plaintiff received a rating of "highly effective" in most categories. The 2005 appraisal stated that he "continues to meet the challenges presented on the Science Library project. His resourcefulness and resilience to changes on the project are exemplary. [Plaintiff] is an accomplished, highly effective senior project manager." In 2006, he received a similarly positive appraisal. In 2007, Princeton gave plaintiff a rating of "highly effective" in most categories and stated that he "continues to be a valuable member of our office." In 2008, plaintiff received marks of "exceptional" and "highly effective" and his supervisor noted: "This past year, [plaintiff] has successfully completed the Lewis Library project, one of the most technically complex and challenging construction projects in the University's history. Job well done!" In addition to these documented work-related expressions of praise, Princeton gave plaintiff salary raises amounting to 3.5%.

Plaintiff alleged his supervisors represented to him that he would remain employed at Princeton in some capacity. For example, he contends that in 2008, Anne St. Mauro plaintiff's then-supervisor told plaintiff that there would be future projects for him. In April 2008, defendant Mark Burstein, Princeton's executive vice president, allegedly reassured plaintiff, that "[y]ou have absolutely nothing to worry about, there's going to be plenty of work here for you at Princeton, we've got lots to work on." In August 2008, Mike McKay, who was St. Mauro's boss, congratulated plaintiff on what he had accomplished on the Lewis Library project and told him that Princeton planned to have him continue to work on other projects.

In October 2009, however, Princeton terminated plaintiff. St. Mauro testified at her deposition that she had made the decision to terminate plaintiff, not based on plaintiff's performance or skills, but rather because of budgetary cutbacks and fewer available projects. Nevertheless, plaintiff testified at his own depositions that St. Mauro expressed to him on numerous occasions that she was hoping older people would retire so she could hire younger people and referred to another employee she wanted to leave as "one of those old guys."2

In September 2009, plaintiff filed his complaint against Princeton, St. Mauro, and Burstein (collectively "defendants"). He alleged breach of contract (Count One), breach of covenant of good faith and fair dealing (Count Two), negligent misrepresentation (Count Three), promissory estoppel and detrimental reliance (Count Four), age discrimination (Count Five), defamation/slander (Count Six), tortious interference with plaintiff's economic gain (Count Seven), retaliation (Count Eight), and intentional infliction of emotional distress (Count Nine).

As further evidence of age discrimination, plaintiff produced a spreadsheet showing that from July 1, 2002 through September 1, 2011, there were seventy-nine term appointments or extensions and, of those, three were terminated due to "end of term." Those three employees were aged sixty-four, sixty-one, and sixty. Plaintiff alleged that since his termination, within Princeton's Department of Design and Construction, there have been zero terminations due to "end of term"; twenty-one term extensions; one promotion to project manager; one "new hire" as "term" employment to project manager; and two changes to "regular" status in lieu of extension. Plaintiff claims that out of twenty-one similarly situated employees, only the oldest two, one of which was plaintiff, were not renewed or placed elsewhere.

Plaintiff alleged that in January 2011, Princeton hired a fifty-five-year-old field manager to replace him. And, he asserts that in February 2011, Princeton gave a salary increase to a thirty-eight-year-old, who Princeton promoted to project manager, a position plaintiff alleges he was qualified to perform. Plaintiff maintains that a construction or field manager and a project manager are both "Grade A positions" with similar salaries.

In December 2009, a Law Division judge (the first judge) granted defendants' Rule 4:6-2(e) motion and dismissed Counts One, Two, Seven, Eight and Nine of plaintiff's complaint. In August 2012, a different Law Division judge (the second judge) granted summary judgment and dismissed the remaining counts of the complaint without issuing findings of fact or conclusions of law. This appeal followed.

On appeal, plaintiff argues that the first judge erred by applying the wrong standard on defendants' Rule 4:6-2(e) motion. He also contends that, at a minimum, we should remand for the second judge to provide findings of fact and conclusions of law regarding the issuance of summary judgment.

I.

We agree that the first judge incorrectly applied a more stringent standard than is required by Rule 4:6-2(e) when he dismissed five counts in plaintiff's complaint. We therefore reverse that part of the April 1, 2010 order dismissing the following four counts: (1) breach of contract (Count One); (2) breach of covenant of good faith and fair dealing (Count Two); (3) tortious interference with plaintiff's economic gain (Count Seven); and (4) intentional infliction of emotional distress (Count Nine). We affirm, however, the dismissal of plaintiff's claim of retaliation (Count Eight).

On a motion to dismiss for failure to state a claim under Rule 4:6-2(e), the court must only consider "the legal sufficiency of the alleged facts apparent on the face of the challenged claim." Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) (internal quotation marks omitted). "The court may not consider anything other than whether the complaint states a cognizable cause of action." Ibid. The court must "accept as true the facts alleged in the complaint," Darakjian v. Hanna, 366 N.J. Super. 238, 242 (App. Div. 2004), and "search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary," Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (internal quotation marks omitted). The party opposing the motion is "entitled to every reasonable inference of fact." Ibid.

In general, plaintiff alleged the following potentially-relevant facts in his complaint: Princeton hired him and his superiors continuously represented to him that he would be a permanent employee; he relied on those representations and relocated from Maryland to New Jersey; Princeton's permanent staff, at the time he was hired, began as term employees, allegedly like plaintiff; plaintiff exhibited a "major commitment" to Princeton based on the promises of long-term permanent employment; he received promotions, praise, and salary increases during his employment with Princeton; in front of several members at a senior staff meeting, St. Mauro accused plaintiff of lying that he missed part of half a day from work due to medical reasons; St. Mauro acted maliciously to defame plaintiff by breaching his medical privacy rights; and plaintiff's superiors excluded him from a bribery investigation and implied that he was guilty in the scandal. Applying the standard of review required on a Rule 4:6-2(e) motion, we conclude that the dismissed counts, except retaliation (Count Eight), survive defendants' motion.

Regarding retaliation, plaintiff alleged in his complaint that

[i]n early 2007 and continuing with his positional responsibilities, [p]laintiff disclosed unethical and inappropriate behaviors to Michael Karl, as to the favorable treatment and protection of Barr and Barr by St. Mauro, including improper actions, faulty procedures, conflicts of interests within the office and the responsible department(s) of the University.

Shortly thereafter, St. Mauro's actions were part of an overt and retaliatory scheme against [p]laintiff for his "whistle blowing" of internal mistakes, bad decisions, and conflicts of interest within the department.

At that time, St. Mauro began to aggressively curtail [p]laintiff's responsibilities as a fiduciary and steward of the "University. . . ."

In dismissing Count Eight of the complaint, the first judge stated correctly that plaintiff's

retaliation claim is based on his having challenged Princeton's accounting procedures and practices as they apply to the construction projects on which he worked, which he believes led to his loss of authority, role diminishment, humiliation, and eventual termination. [Defendants] assert[] that the accounting procedures and practices challenged by [plaintiff] are internal policies and simply do not impact public policy. In contrast, [plaintiff] merely indicates that . . . Princeton's accounting . . . involved fraud, and he does not specifically identify any clear mandate of public policy from any sources as articulated by our Supreme Court in Pierce [v. Ortho Pharm. Corp., 84 N.J. 58 (1980)].

Thus, on balance, this [c]ourt finds that [plaintiff] has not satisfied the standards set forth in Pierce. . . .

Plaintiff's retaliation claim amounts to a claimed violation of Pierce. Although plaintiff did not allege a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8,3 CEPA analogously provides, in relevant part, that

[a]n employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy[,] or practice of the employer, or another employer, with whom there is a business relationship, that 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, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity . . . .

[N.J.S.A. 34:19-3.]

CEPA also protects an employee who "[o]bjects to, or refuses to participate in any activity, policy[,] or practice which the employee reasonably believes" is in violation of a law or is fraudulent or criminal. N.J.S.A. 34:19-3(c).

CEPA is recognized as a codification of principles articulated in Pierce. Hitesman v. Bridgeway Inc., 430 N.J. Super. 198, 209 n.5 (App. Div. 2013). Under Pierce, supra, 84 N.J. at 72, an employee only has a cause of action for wrongful discharge "when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions." In Jenkins v. Region Nine Housing Corp., 306 N.J. Super. 258, 263 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998), we held that the plaintiff failed to state a claim for wrongful discharge in violation of public policy because the plaintiff "cite[d] no specific, clearly enunciated public policy sufficient to support such a claim."

The Supreme Court has held that "the trial court must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct," but the plaintiff does not need to "allege facts that, if true, actually would violate that statute, rule, or public policy." Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003). The plaintiff need only "set forth facts that would support an objectively reasonable belief that a violation has occurred." Id. at 464.

Pierce does not apply "where discharge resulted from disputes which were internal and implicated only private interests." Devries v. McNeil Consumer Prods. Co., 250 N.J. Super. 159, 171 (App. Div. 1991). Moreover, while plaintiff is not required to make an external complaint, plaintiff must make a "sufficient expression" of a disagreement with a corporate policy, directive, or decision

to support the conclusion that the resulting discharge violates the mandate of public policy and is wrongful. That is to say, a complaint to an outside agency will ordinarily be a sufficient means of expression, but a passing remark to co-workers will not. A direct complaint to senior corporate management would likely suffice, but a complaint to an immediate supervisor generally would not.

[Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 109 (2008).]

Viewing plaintiff's complaint with the liberality required for review of a motion to dismiss under Rule 4:6-2(e), we conclude that plaintiff's vague allegations of retaliation do not closely relate to a clear mandate of public policy, and that plaintiff has not pled facts that would support an objectively reasonable belief that a violation of that policy has occurred.

Plaintiff's vague references to "internal mistakes, bad decisions, and conflicts of interests" do not adequately implicate any clear mandate of public policy. Moreover, in Demas v. National Westminster Bank, 313 N.J. Super. 47, 53-54 (App. Div. 1998), certif. denied, 161 N.J. 151 (1999), we affirmed the dismissal of the plaintiff's CEPA claim and stated that the conduct "harmed only [the employer's] private business and was not a source of any but the most indirect harm to the public interest." As sparsely framed in the complaint, the allegation of potential harm to Princeton by an outside contractor is "'not the type of activity [CEPA] was designed to combat, or whose disclosure the statute was designed to protect.'" Id. at 54 (quoting Littman v. Firestone Tire & Rubber Co., 715 F. Supp. 90, 93 (S.D.N.Y. 1989)).

II.

We agree with plaintiff's contention that a remand is warranted because the second judge failed to make the requisite findings of fact and conclusions of law when he granted summary judgment dismissing plaintiff's claims for promissory estoppel and detrimental reliance (Count Four); age discrimination (Count Five); and tortious interference with plaintiff's economic gain (Count Six).

Rule 1:7-4(a) provides in relevant part that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right . . . ." Because the second judge provided no reasons for his decision to grant summary judgment, we remand and direct that he do so. We leave it to the judge to decide whether to require additional oral argument. To assist the second judge in his reexamination of this matter, counsel shall furnish him with courtesy copies of their appellate briefs and appendices within twenty days. Regarding the remand proceedings, we make the following observations pertaining to plaintiff's allegation that Princeton discriminated against him on the basis of age, particularly as to the alleged "fourth element" of a statutory wrongful discharge claim.

The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, prohibits employers from discriminating against employees or job applicants on the basis of, among other things, age, when making hiring or termination decisions. N.J.S.A. 10:5-3; 10:5-12(a). The LAD does not bar "the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment, nor to preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standards." N.J.S.A. 10:5-2.1.

Because of the difficulty of proving that an employer was motivated by a discriminatory intent in making a personnel decision, New Jersey has adopted the burden-shifting analysis that the United States Supreme Court articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). The plaintiff may make his or her case through circumstantial evidence. Ibid.

In the context of a discharge case, a plaintiff must first demonstrate a prima facie case of age discrimination by proving that "(1) he was in the protected group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he nevertheless was fired; and (4) the employer sought someone to perform the same work after he left." Id. at 450. In this case, there is no dispute that plaintiff was a member of a protected class, was performing his job duties adequately, and was terminated. The dispute focuses on the fourth element of the prima facie test.

The employer is entitled to summary judgment if, after proffering a non-discriminatory reason for its decision, plaintiff cannot "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Zive, supra, 182 N.J. at 455-56 (internal quotation marks omitted).

In Young v. Hobart West Group, 385 N.J. Super. 448, 459-60 (App. Div. 2005), we found that plaintiff failed to establish that she was terminated due to her age rather than as a cost reduction measure, noting that nobody was hired to replace her. However, we stated that

plaintiff cannot show either that she was replaced by someone sufficiently younger, or that "age in any significant way made a difference" in the treatment she was accorded by her employer. Even had plaintiff established that her age was a primary factor in [defendants'] decision to terminate her, she has not refuted defendants' legitimate business reasons for discharging her.

[Ibid. (emphasis added).]

Also, in Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 82 (App. Div.), certif. denied, 170 N.J. 388 (2001), we held that the trial court misconceived the fourth element to require a showing that the plaintiff had been replaced by a younger person, and stated that "'[t]he fourth element of the McDonnell Douglas test could be satisfied by proof of either replacement by someone outside the protected class or by someone younger or by other proof that the discharge was because of age.'" (Quoting Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986)).

In Williams v. Pemberton Township Public Schools, 323 N.J. Super. 490, 502 (App. Div. 1999), the court stated,

we consider it unwise to require a plaintiff to establish unfailingly as part of the prima facie case that plaintiff was replaced by an individual outside the plaintiff's protected class. The appropriate fourth element of a plaintiff's prima facie case requires a showing that the challenged employment decision (i.e., failure to hire, failure to promote, wrongful discharge) took place under circumstances that give rise to an inference of unlawful discrimination. . . .

Under this approach, a showing that a plaintiff was replaced by an individual outside the protected class could support an inference of unlawful discrimination. Similarly, a plaintiff who was replaced by an individual within the protected class but could show other circumstances indicating unlawful discrimination would not be unfairly precluded from presenting a case.

[(Emphasis added).]

We considered the fourth element of a prima facie case in the context of a reduction-in-force (RIF) in Baker v. National State Bank, 312 N.J. Super. 268 (App. Div. 1998), aff'd, 161 N.J. 220 (1999). There, the court rejected the defendants' argument that in such situations, the plaintiff should be required to produce additional evidence of discrimination, and stated that the reasoning of Marzano v. Computer Science Corp., Inc., 91 F.3d 497 (3d Cir. 1996) was "compelling": "There, the court noted that the Third Circuit Court of Appeals has relaxed the fourth prong of the prima facie case in the RIF situation, so that a plaintiff whose position was eliminated need not show that he or she was replaced, but must show that the employer retained someone outside the protected class." Baker, supra, 312 N.J. Super. at 289.

Finally, if plaintiff establishes his or her prima facie case, creating an inference of discrimination, the burden of production then shifts to defendant to "articulate a legitimate, nondiscriminatory reason for the employer's action." Zive, supra, 182 N.J. at 449 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988)). "The burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Ibid. To prove pretext, "a plaintiff may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent." Ibid. (citing Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002)). At all times, however, the burden of proof that the employer engaged in intentional discrimination remains with the employee. Clowes, supra, 109 N.J. at 596.

In light of this case law, we direct the judge to address within his findings of fact and conclusions of law whether replacement of plaintiff by a younger worker is a legally required element of his LAD proof,4 and then to analyze whether defendants are entitled to summary judgment dismissing plaintiff's claim of age discrimination as a matter of law.

Affirmed in part; reversed in part; and remanded in part. We do not retain jurisdiction.

1 "Science Library" refers to the Lewis Library.

2 Defendants deny this statement.

3 At oral argument before us, plaintiff's counsel explained that he had not included a CEPA count in the complaint because CEPA's short statute of limitations, see N.J.S.A. 34:19-13, had already expired. We need not reach whether plaintiff's alternate reliance upon a common-law theory of retaliation under Pierce is consistent with the legislative policy underlying CEPA's statute of limitations.

4 At oral argument before us, defense counsel acknowledged that a defendant employer's replacement of the plaintiff by a worker outside of that plaintiff's protected class is not legally required in all LAD wrongful discharge cases.