MICHAEL BARBOUR v. ASBURY PARK HOUSING AUTHORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL BARBOUR,

Plaintiff-Appellant,

v.

ASBURY PARK HOUSING AUTHORITY,

Defendant-Respondent,

and

GEORGE MATTEO,

Defendant.

_____________________________________

August 14, 2015

Argued November 13, 2014 Decided

Before Judges Fuentes and Kennedy.

On appeal from Superior Court of New Jersey Law Division, Monmouth County, Docket No. L-5915-11.

Lawrence N. Lavigne argued the cause for appellant.

David P. Oberkofler argued the cause for respondent (Hill Wallack, L.L.P., attorneys; Suzanne M. Marasco, of counsel; Mr. Oberkofler, on the brief).

PER CURIAM

Plaintiff Michael Barbour filed a complaint against his former employer, the Asbury Park Housing Authority (Housing Authority), and George Matteo, in his capacity as plaintiff's supervisor, alleging he was terminated from his position as a maintenance worker in retaliation for reporting that Matteo had taken a Housing Authority generator to his home the day before Hurricane Irene struck the shorefront communities located in the southern part of the State in August 2011. Plaintiff's cause of action is grounded under the protections afforded by the Legislature to whistleblowers in the Conscientious Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.

The Law Division granted defendants' summary judgment motion and dismissed plaintiff's complaint with prejudice for his failure to comply with the notice requirements under N.J.S.A. 34:19-4. The motion judge found plaintiff failed to provide his supervisor with written notice of Matteo's alleged improper act before disclosing it to a "public body." The judge concluded plaintiff's failure to provide this internal notice deprived the Housing Authority of "a reasonable opportunity" to take corrective action.

Plaintiff now appeals arguing the Law Division erred in dismissing his CEPA action because he was "excused from the requirement of providing written notice to his employer" under the facts of this case by the notice exception provision in N.J.S.A. 34:19-4, which relieves an employee of having to give written notice "where the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer[.]" We agree with plaintiff's argument and reverse.

Because this matter came before the trial court by way of defendants' motion for summary judgment, we will consider the factual record in the light most favorable to plaintiff, including giving him all reasonable inferences that can be drawn therefrom. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff worked as a maintenance technician for the Housing Authority from August 2009 through October 2011. On August 27, 2011, Hurricane Irene struck the northeastern part of the country, including oceanfront communities in New Jersey like Asbury Park. Matteo was plaintiff's direct supervisor at the time. Plaintiff testified at his deposition that a number of Housing Authority buildings were flooded from the heavy rainfall and that electrical service was also unavailable. The Housing Authority had only one generator at the time. All maintenance workers had two-way radios to communicate with each other and with their supervisor.

Plaintiff testified he radioed Matteo and asked him for the location of the generator because he needed to start pumping out the floodwater from the basement of one of the affected buildings. According to plaintiff, Matteo told him, "I don't know where I put it. I have to locate it and when I locate it, I'll give you a call." Matteo made the following admission as part of his deposition testimony

Q. [J]ust after [the hurricane] when everybody came back to work. There was a period of time because of the state of emergency people weren't allowed to drive, so as soon as people started returning to work and your maintenance staff was starting to fix and take care of any problems that occurred during the hurricane.

[MATTEO:] So you're talking post-storm?

Q. Post-storm.

[MATTEO:] Yes.

Q. Where was the generator at the time that [plaintiff] asked?

[MATTEO:] It was at my house.

Matteo claimed he removed the generator from Housing Authority property and placed it in his passenger van for safekeeping.1 According to Matteo, he left the generator at his home because he needed to transport people to an emergency Housing Authority meeting at Asbury Park City Hall. Matteo denied using the generator at his home for his own personal benefit.

On August 30, 2011, plaintiff wrote a letter to the Housing Authority, the United States Department of Housing and Urban Development (HUD) (the federal agency that regulates and oversees public housing authorities like defendant), and the Monmouth County Prosecutor's Office, stating that two days before the Hurricane, Matteo "asked some of the maintenance employees to put the Asbury Park Housing Authority's generator into his assigned van." Plaintiff claimed Matteo took the generator to his home in the Township of Brick and left it there during the storm. Plaintiff then stated,

[a]s a public official, the taking of this property for his personal use violates the trust expected from any employee, but especially one in a position of authority. His actions further left the [Housing Authority] without an alternative power source, the very reason the generator was purchased.

Plaintiff then described the conversation he had with Matteo over the two-way radio about the location of the generator on the day the maintenance staff returned to work after the storm. Plaintiff claimed that "seven (7) basements of the Boston Way Village housing complex were flooded, including the boiler room[.]" Plaintiff also claimed Matteo called a private contractor on August 29, 2011, "to provide a generator and a pump in order to remove the water from the basements and boiler room." Plaintiff characterized Matteo's actions in this regard as a waste of Housing Authority funds.

Plaintiff claimed Matteo returned the generator on August 30, 2011, finally making it possible for the maintenance staff to remove the water from the boiler room areas. Plaintiff nevertheless opined that the unnecessary delay in removing the standing water "compromise[d] the infrastructure and increase[d] the risks of any health issues." Plaintiff claimed the Housing Authority's "second in command[] was also fully aware of this wrongdoing and failed to report it." Although the letter was not signed and did not identify plaintiff in any direct way, plaintiff claims Matteo was aware he was the author. Matteo denies this and claims the first time he indicated to plaintiff that he was aware that plaintiff was the author of the "Concerned Citizens" letter was at a staff meeting on October 27, 2011, when plaintiff accused him of taking the generator in August 2011.

On September 26, 2011, the Housing Authority sent plaintiff a "laid off notice," terminating his employment effective November 1, 2011. The notice stated, "[a]s previously noticed and discussed, this Authority is in severe and critical financial condition and cannot continue to employ all employees. We cannot employ personnel without the funds to pay [them] therefore, we must reduce staff." Although Matteo did not have the direct authority to terminate plaintiff's employment, plaintiff notes that as his direct supervisor, Matteo submitted his performance evaluation of plaintiff's work to the Housing Authority's Executive Director. It is undisputed that the Executive Director based his decision to terminate plaintiff's employment on the fact that plaintiff "scored one point less than [another maintenance worker]" on his performance evaluation.

As this record shows, there are a number of disputed material questions of fact that ordinarily would have been sufficient to deny summary judgment. However, the motion judge based his decision to grant defendants' motion for summary judgment on plaintiff's alleged failure to comply with the provisions of N.J.S.A. 34:19-4, which provides, in its entirety, as follows

The protection against retaliatory action provided by this act pertaining to disclosure to a public body shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice. Disclosure shall not be required where the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer or where the employee reasonably fears physical harm as a result of the disclosure provided, however, that the situation is emergency in nature.

[(Emphasis added).]

Plaintiff argued before the trial court, and continues to argue here, that Matteo knew plaintiff had inquired about the generator's whereabouts the day the maintenance staff returned to work after the hurricane. According to plaintiff, the statute's notice requirement is intended to "afford[] the employer a reasonable opportunity to correct the activity, policy or practice." See ibid. According to plaintiff, this concern is not relevant here because Matteo's misconduct, the improper removal of the generator at a time when it was most needed, was completed at the time plaintiff became aware of it. This was a single event of misconduct by Matteo, not an ongoing activity, practice, or policy. Plaintiff also alleges Matteo's supervisor at the Housing Authority was aware of his improper removal of the generator.

The motion judge acknowledged plaintiff's arguments with respect to the notice provision in N.J.S.A. 34:19-4, but found "no credible evidence on this record, even giving the plaintiff all benefit, all the reasonable inferences, that any supervisor heard it." Plaintiff now appeals raising the same argument the motion judge rejected. In response, defendants agree that in adopting N.J.S.A. 34:19-4, the Legislature intended to afford employers the opportunity to investigate and, if necessary, correct any unlawful activity, policy or practice. Neither side in this appeal has cited a published opinion directly addressing the preclusive effect of the notice provision in N.J.S.A. 34:19-4.2

The Supreme Court has recently reaffirmed that "[i]n determining whether [a] plaintiff is entitled to bring his CEPA cause of action or, conversely, whether defendants should be entitled to summary judgment based on their assertion that plaintiff is not entitled to whistleblower protection[,]" we construe CEPA's language de novo. Lippman v. Ethicon, Inc., ____ N.J. ____, ____ (2015) (slip op. at 31) (citations omitted). In our view, the motion judge's interpretation of the preclusive provisions in N.J.S.A. 34:19-4 is inconsistent with the Supreme Court's repeated admonitions that, as a remedial statute, CEPA should be construed liberally to effectuate its social goal of protecting employees who report workplace misconduct from retaliation. Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013) (citations omitted). This case presents a discrete legal question: whether the notice requirements of N.J.S.A. 34:19-4 apply to the facts of this case. Mindful of the public policy concerns the Supreme Court reaffirmed in Battaglia, we hold that N.J.S.A. 34:19-4's notice requirements are not implicated in this case.

In Lippman, supra, the Court noted that "the Legislature has required prior notice to the employer and opportunity to correct the activity, policy, or practice, in order for a putative whistleblower plaintiff to obtain protection against retaliatory action for disclosure made to a public body." Id. at ___ (slip op. at 47). Here, plaintiff has not alleged that the misuse of the generator is indicative of a practice or pattern of misconduct or a culture of corruption at the Housing Authority. He merely claims he was terminated from his position because he reported a single act of misconduct by his direct supervisor. Although the "Concerned Citizens" letter refers to this isolated incident as a waste of the Housing Authority's funds, plaintiff does not claim Matteo's act is indicative of similar misdeeds he has committed in the past, which have been overlooked by the management of the Housing Authority. In short, the legislative intent underpinning N.J.S.A. 34:19-4, to provide the employer the opportunity to investigate and correct any unlawful activity, policy or practice, is not undermined by plaintiff's failure to bring this isolated incident to the attention of senior management.

Finally, we note Matteo was not just an employee of the Housing Authority. He was plaintiff's direct supervisor and the individual who evaluated plaintiff's job performance. Defendants concede the Housing Authority's Executive Director relied on Matteo's performance evaluation of plaintiff in terminating plaintiff's employment. Under these circumstances, it is not unreasonable for plaintiff to distrust an employer's internal reporting procedure and militates against strict enforcement of N.J.S.A. 34:19-4's notice requirement. However, applying traditional cannons of statutory construction, we are satisfied the Legislature did not intend to leave plaintiff outside the protections afforded to whistleblowers under CEPA under these circumstances.

Reversed and remanded. We do not retain jurisdiction.

1 Although it moves on wheels, the generator is a heavy-duty piece of equipment that weighs approximately three hundred pounds and is capable of generating 10,000 watts of electricity.

2 Defendants have cited a number of unpublished opinions in support of their argument. However, as Rule 1:36-3 makes clear, such opinions do not "constitute precedent" and are in no way "binding upon any court."