(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3846-18T1
Plaintiff-Appellant, APPROVED FOR PUBLICATION
April 14, 2020
Argued January 27, 2020 – Decided April 14, 2020
Before Judges Messano, Ostrer 1 and Vernoia.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-0142-
Thomas A. Mc Kinney argued the cause for appellant
(Castronovo & McKinney, LLC, attorneys; Thomas A.
Mc Kinney, of counsel; Megan Frese Porio, on the
Margaret O'Rourke Wood argued the cause for
respondent (Chiesa Shahinian & Giantomasi PC,
attorneys; Margaret O'Rourke Wood and Aaron Paul
Davis, on the brief).
Judge Ostrer did not participate in oral argument. The parties consented to
Judge Ostrer's participation in the decision without further oral argument.
The opinion of the court was delivered by
Plaintiff Emiliano Rios, an emergency medical technician (EMT)
formerly employed by defendant Meadowlands Hospital Medical Center,
appeals from an order granting defendant summary judgment and dismissing
his complaint alleging retaliatory discharge in violation of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and from an order
denying his motion for reconsideration. Based on our review of the record, we
are convinced the motion court erred in its determination plaintiff did not
present sufficient evidence establishing the good faith and reasonable basis
prerequisite for a LAD retaliatory discharge claim established by our Supreme
Court in Carmona v. Resorts International Hotel, Inc., 189 N.J. 354, 372
(2007), and we reverse and remand for further proceedings.
In our review of the record before the motion court, we accept the facts
and all reasonable inferences therefrom in the light most favorable to plaintiff
because he is the party against whom summary judgment was entered. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that
standard, we summarize the pertinent facts as follows.
Defendant employed plaintiff as an EMT in its Emergency Medical
Services Department (EMS) from August 2012 to July 16, 2015, when
defendant terminated plaintiff's employment. From December 2013 through
the termination of his employment, plaintiff held the title of Supervisor of
In November 2013, defendant terminated plaintiff's co-employee and
friend Heatherlee Bailey from her employment in EMS. In April 2014, Bailey
filed a sexual harassment complaint against defendant and several others.
Bailey had never informed plaintiff she was harassed while employed by
defendant; plaintiff was unaware of any alleged harassment against Bailey; and
plaintiff never reported any harassment or discrimination to defendant's human
resources department. Bailey never told plaintiff she was filing the lawsuit,
and plaintiff never encouraged her to do so. Thus, plaintiff did not know if
there was a good faith or reasonable basis for Bailey's complaint.
After service of Bailey's complaint on defendant, Rostik Rusev, the
Coordinator of EMS, "repeatedly told" plaintiff "he needed to be a team player
and [d]efendant needed his support against the Bailey lawsuit." Rusev showed
plaintiff "papers" from the lawsuit and said "[p]laintiff need[ed] to play ball
and help the hospital." Plaintiff described Rusev as "scared or . . . frantic"
when he showed plaintiff "papers that [said] Heatherlee Bailey versus
Meadowlands Hospital," and Rusev said he "need[ed] [plaintiff] to help [him]
out" and "go . . . and get a restraining order" against Bailey. Rusev also said
the hospital's owner "expect[ed] [plaintiff] to help out." Plaintiff did not agree
to seek a restraining order against Bailey.
Plaintiff testified about a conversation he had with Rusev and Glenn
Berchtold, an Assistant Director of EMS, during which they discussed
plaintiff's possible appointment as an Assistant Director of EMS. According to
plaintiff, Rusev said that, in order for the appointment to happen, plaintiff
needed to "play ball" and say Bailey "was giving [him] a hard time." Plaintiff
testified Rusev said, "that's going to be the key for us to win this" and "I need
you in on this." Plaintiff asserted that, in response, he told Rusev that he
"wasn't all that comfortable with that," and Rusev said plaintiff was "an
employee of the hospital and [was] required to protect the hospital."
Plaintiff testified he had many conversations with Rusev concerning the
Bailey lawsuit and, at one point, Rusev said that when plaintiff met with
defendant's lawyers, he "need[ed] to say . . . there was a hostile work
environment"; and that Bailey "was caught giving [plaintiff] a hard time, . . .
[plaintiff] didn't want to come into work, [and] . . . [Bailey] was giving
[plaintiff] and [another employee] a hard time." Rusev also said he "need[ed]
[plaintiff] to go downstairs and tell all these employees to get any complaints
against [Bailey], put them in writing, and bring them up to me."
Plaintiff asserted that at various times he told Rusev he was not
comfortable with Rusev's instructions to make the requested statements
concerning Bailey or to obtain the requested complaints; the statements Rusev
asked he make about Bailey were not true; and he objected to Rusev's request
that he fill the role Rusev wanted him to play in defending against Bailey's
complaint. Plaintiff claims that following his objections to Rusev's requests
and his refusals to accede to the requests, defendant retaliated by removing
some of his job responsibilities as EMS supervisor and by later terminating his
Following his termination, plaintiff filed a complaint against defendant
alleging he "refused to cooperate with [d]efendant" in Bailey's lawsuit and
"refus[ed] to lie about" Bailey. He claimed defendant retaliated against him in
reprisal for his refusals, and defendant's actions violated the LAD.
Following completion of discovery, defendant moved for summary
judgment, asserting plaintiff could not establish the requisite elements of a
retaliatory discharge claim under N.J.S.A. 10:5-12(d). See generally Craig v.
Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995) (defining the
elements of a LAD-retaliation claim). In part, defendant also argued plaintiff
lacked evidence establishing the prerequisite to a LAD-retaliation claim
defined by our Supreme Court in Carmona; that plaintiff had a reasonable and
good faith belief in the underlying discrimination complaint that triggered the
alleged retaliatory actions. 189 N.J. at 373.
The court granted defendant's motion on narrow grounds. It determined
the undisputed facts established plaintiff had no knowledge concerning
Bailey's underlying complaint, and, therefore, he did not have a "good faith,
reasonable basis for complaining about the workplace behavior." The court
concluded plaintiff could not sustain his burden of proving the prerequisite
required by the Court in Carmona, and it granted defendant's summary
judgment motion for that reason alone.
The court later denied plaintiff's reconsideration motion. The court
again relied on Carmona and found the prerequisite applied "both to employees
opposing discriminatory conduct directed at them as well as employees who
purportedly assist or participate in proceedings of their colleagues regarding
alleged discriminatory conduct."
Plaintiff appeals from the court's orders granting defendant summary
judgment and denying his reconsideration motion. Plaintiff contends the court
erred by interpreting Carmona to require he demonstrate a good faith and
reasonable basis for Bailey's complaint because he did not allege Bailey's
complaint triggered the retaliation against him. He contends the Carmona
prerequisite only applies to retaliation claims premised on the filing of a
complaint by the plaintiff, whereas he was retaliated against in violation of the
LAD, N.J.S.A. 10:5-12(d), for opposing defendant's efforts to retaliate against
Bailey. He argues the motion court's application of Carmona constitutes error
requiring reversal of the court's orders.
We review the grant of summary judgment de novo, applying the same
standard used by the trial court, which
mandates that summary judgment 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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).]
We determine "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill, 142 N.J. at 540). We owe no deference to
the trial court's legal analysis. The Palisades at Fort Lee Condo. Ass'n v. 100
Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citing Manalapan Realty, LP v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In his single-count complaint, plaintiff alleges defendant's alleged
retaliatory actions violated N.J.S.A. 10:5-12(d). The statute provides it is "an
unlawful employment practice, or, as the case may be, an unlawful
discrimination" for an employer:
to take reprisals against any person because that
person has opposed any practices or acts forbidden
under this act or because that person has sought legal
advice regarding rights under this act, shared relevant
information with legal counsel, shared information
with a governmental entity, or filed a complaint,
testified or assisted in any proceeding under this act or
to coerce, intimidate, threaten or interfere with any
person in the exercise or enjoyment of, or on account
of that person having aided or encouraged any other
person in the exercise or enjoyment of, any right
granted or protected by this act.
It is well-settled that, to establish a retaliation claim under N.J.S.A. 10:5-
12(d), "plaintiffs must demonstrate that: (1) they engaged in a protected
activity known by the employer; (2) thereafter their employer unlawfully
retaliated against them; and (3) their participation in the protected activity
caused the retaliation." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125
(2008) (quoting Craig, 140 N.J. at 629-30).
In Carmona, the Court further defined the elements of a LAD-retaliation
claim. 189 N.J. at 369-71. The plaintiff filed a LAD-retaliation claim alleging
he was terminated because he complained he was subject to racial
discrimination and harassment in the workplace. Id. at 361-63. The defendant
argued the plaintiff could not succeed on his LAD-retaliation claim because
his discrimination and harassment complaint was baseless and not brought in
reasonable good faith. Id. at 364-65. The trial court rejected the defendant's
argument; the plaintiff prevailed on the retaliation claim at trial; and we
affirmed, refusing to import a "qualification"—that a plaintiff prove he or
she had a good faith belief in the underlying complaint—that was "not
established in the statute." Id. at 367 (quoting Carmona v. Resorts Int'l Hotel,
Inc., No. A-5814-03 (App. Div. Oct. 25, 2005) (slip op. at 4)).
On appeal, our Supreme Court considered whether "as a condition
precedent to a retaliation claim under the LAD, a plaintiff bears the burden of
proving that his or her initial complaint that triggered the later claimed
retaliation was filed reasonably and in good faith in the first instance." Id. at
369 (emphasis added). The Court found "a requirement that a LAD-retaliation
plaintiff demonstrate that his [or her] underlying complaint was reasonable and
in good faith is entirely consonant with the purpose of the LAD," and "its
absence may well lead to abuse." Id. at 372-73. The Court concluded such a
requirement is consistent with its interpretation of the Conscientious Employee
Protection Act, N.J.S.A. 34:19-1 to -14, id. at 371, and with federal precedent
addressing retaliation claims under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, id. at 372-73. The Court also accepted the reasoning of
federal precedent interpreting the LAD to include a good faith and
reasonableness requirement for LAD-retaliation claims. Id. at 373 (citing
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 865 (3d Cir. 1990) and
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d. Cir. 1996)).
Persuaded by that authority, and by its determination "the Legislature
could not have intended that the LAD provide a safe harbor to one who files a
baseless, meretricious complaint," the Court held that where "a plaintiff
alleges retaliation under . . . N.J.S.A. 10:5-12[(d)], the plaintiff bears the
burden of proving that his or her original complaint—the one that allegedly
triggered his or her employer's retaliation—was made reasonably and in good
faith." Id. at 373 (emphasis added). In Tartaglia, the Court described the
holding in Carmona as a "refine[ment]" of the elements of a LAD-retaliation
claim that added a "prerequisite": "a plaintiff must . . . bear the burden of
proving that he or she had a good faith, reasonable basis for complaining about
the workplace behavior." Tartaglia, 197 N.J. at 125.
Here, the court granted defendant's summary judgment motion based on
its application of the reasoning in Carmona, concluding plaintiff did not satisfy
the prerequisite for a LAD-retaliation claim because he did not have a
reasonable or good faith belief in Bailey's complaint. In our view, the court
misinterpreted Carmona and misapplied the Court's holding.
N.J.S.A. 10:5-12(d) protects employees from reprisals taken in response
to various protected actions. For example, the statute prohibits reprisal s
because a person "filed a complaint," but it also prohibits reprisals because a
person "has opposed any practices or acts forbidden under" the LAD. N.J.S.A.
10:5-12(d). In Carmona, the plaintiff claimed retaliation in reprisal for making
a discrimination and harassment complaint under the LAD, and it was in that
context the Court determined a plaintiff must prove a reasonable and good
faith belief in the underlying complaint to establish a retaliation claim under
the LAD. 189 N.J. at 373.
Here, plaintiff does not allege he was retaliated against for filing a
discrimination complaint. Rather, he claims he engaged in conduct wholly
different than that of the plaintiff in Carmona, but which nonetheless is
protected under N.J.S.A. 10:5-12(d). He claims he was retaliated against
because he "opposed . . . acts forbidden under the" LAD. N.J.S.A. 10:5-12(d).
The facts proffered by plaintiff, which we accept as true for our analysis
of the court's disposition of the summary judgment motion, show defendant
attempted to retaliate against Bailey for the filing of her LAD complaint.
Following the filing of Bailey's complaint, defendant requested plaintiff file a
baseless complaint for a restraining order against Bailey; conjure up false
complaints about Bailey; and make false statements about her. Those requests
constitute an attempt by defendant to commit "an unlawful employment
practice" in violation of N.J.S.A. 10:5-12(d)—retaliation against Bailey for her
filing of a sexual harassment complaint.
If plaintiff had acceded to the requests, Bailey would have been
compelled to respond to a baseless complaint seeking a restraining order
against her, forced to fend off false complaints, and required to confront false
allegations made by plaintiff solely as a result of requests made by defendant
in response to, and in retaliation for, Bailey's filing of her LAD lawsuit.
Defendant's alleged requests to plaintiff constitute a paradigm of retaliatory
conduct the LAD expressly prohibits. Plaintiff's opposition to defendant's
requests, effectuated through his refusal to take the actions and make the
statements defendant requested, prevented defendant from retaliating against
N.J.S.A. 10:5-12(d) provided Bailey with protection from any reprisals
made in response to the filing of her LAD complaint, and, if Bailey filed a
retaliation claim, Carmona would have required that Bailey prove she had a
good faith and reasonable belief in her underlying LAD complaint. See
Carmona, 189 at 373. However, distinct from the protections against
retaliation Bailey had under N.J.S.A. 10:5-12(d), the statute provided plaintiff
with protection from retaliation triggered by his opposition to defendant 's
efforts to retaliate against Bailey.
We interpret the Court's holding in Carmona to require that a plaintiff
asserting a retaliation claim under N.J.S.A. 10:5-12(d) must establish as a
prerequisite that the alleged action triggering the retaliation was taken on a
good faith and reasonable basis. In Carmona, the Court required the plaintiff
demonstrate his underlying complaint was made on a good faith and
reasonable basis because it was the filing of that complaint—an action
protected from reprisals under N.J.S.A. 10:5-12(d)—that triggered the alleged
Here, the filing of Bailey's complaint was not the protected action under
N.J.S.A. 10:5-12(d) that triggered the retaliation plaintiff alleges in the
complaint. The Court's decision in Carmona, therefore, does not require that
plaintiff demonstrate a good faith and reasonable basis for Bailey's complaint.
Such a requirement would be inconsistent with the broad remedial purposes of
the LAD because it would bar claims of employees, like plaintiff, who have no
knowledge regarding the basis of a co-employee's underlying complaint, but
who nonetheless have a good faith and reasonable basis to oppose an
employer's actions that otherwise violate the LAD. N.J.S.A. 10:5-12(d)
expressly prohibits retaliation against a person who opposes practices or acts
forbidden by the LAD, but the motion court's misapplication of the Carmona
standard incongruously protects defendant from liability for alleged retaliatory
acts that clearly fall within the statute's proscription.
We apply the Court's broad holding in Carmona—that a prerequisite to a
N.J.S.A. 10:5-12(d) claim is a showing the protected action triggering the
retaliation was taken on a good faith and reasonable basis—to plaintiff's claim.
Thus, as a prerequisite to his claim, plaintiff was required to demonstrate there
was a good faith and reasonable basis for his opposition to defendant's actions
that are forbidden by the LAD. 2 Having reviewed the summary judgment
record, we are satisfied plaintiff sustained that burden by presenting evidence
2 N.J.S.A. 10:5-12(d) also prohibits reprisals against a person who "assist[s]
[another person] in any proceeding under" the LAD or "aided or encouraged
any other person in the exercise or enjoyment of, any right granted or protected
by" the LAD. We are not convinced the protected activity plaintiff claims
triggered the alleged retaliation against him falls within these categories, and,
we therefore do not consider the application of the Carmona holding to claims
made under those provisions.
he refused defendant's requests that he seek a meritless restraining order
against Bailey and make misrepresentations concerning her. Giving plaintiff
the benefit of all favorable inferences, plaintiff demonstrated he had a good
faith and reasonable belief defendant's requests constituted efforts by
defendant to unlawfully retaliate against Bailey for the filing of her
discrimination and harassment complaint.
We therefore reverse the court's order granting defendant's summary
judgment motion. We do so on the narrow ground that the court erred by
finding plaintiff did not present sufficient competent evidence establishing the
Carmona prerequisite for his LAD-retaliation claim. We offer no opinion on
the merits of defendant's other arguments supporting its summary judgment
motion before the motion court. They were not addressed by the motion court,
and we do not decide summary judgment motions "tabula rasa." Estate of
Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02 (App. Div. 2018). The
court shall address those arguments as appropriate on remand.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.