ARTHUR O'KEEFE v. STATE OF NEW JERSEY, DEPARTMENT OF LABOR, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5520-05T55520-05T5

ARTHUR O'KEEFE,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

DEPARTMENT OF LABOR, HARRY

PAPPAS, MICHAEL McCARTHY,

LEONARD KATZ, MARTIN GARTZMAN

and MARK BOYD,

Defendants-Respondents.

________________________________________________________________

 
Argued telephonically on May 22, 2007 - Decided

Before Judges Cuff, Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-1687-02.

Lawrence N. Lavigne argued the cause for appellant (Norris, McLaughlin & Marcus, attorneys; Mr. Lavigne, of counsel; Rachel A. Wingerter, on the brief).

Jacqueline Augustine, Deputy Attorney General, argued the cause for respondents State of New Jersey, Department of Labor, Michael McCarthy, Leonard Katz, Martin Gartzman and Mark Boyd (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Augustine, on the brief).

Thomas W. Sumners, Jr. argued the cause for respondent Harry Pappas (Sumners George, attorneys; Mr. Sumners, of counsel and on the brief).

PER CURIAM

Plaintiff Arthur O'Keefe appeals from a May 17, 2006 order granting summary judgment to the State of New Jersey, Department of Labor (DOL) and several present and former employees of the DOL, and from the trial court's discovery orders of March 17, 2006 and April 12, 2006, denying his motion to compel depositions and extend discovery.

We agree with plaintiff's argument that he presented sufficient evidence to have withstood dismissal of his whistleblower claims under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We also agree that because plaintiff's defamation cause of action is not a claim for pain and suffering, the trial court erred by subjecting that claim to the verbal threshold of the Tort Claims Act, N.J.S.A. 59:9-2(d). Because discovery was not completed, we are unable to determine if the dismissal of plaintiff's constructive discharge claim was error. We reverse the dismissal of that claim, and remand for completion of discovery, without prejudice to defendants' right to renew their summary judgment motion on the constructive discharge claim once discovery is complete. Finally, we agree with plaintiff's contention that the denial of his request to continue discovery constituted a mistaken exercise of the court's discretion. Accordingly, we reverse the grant of summary judgment on all three claims and remand for the completion of discovery.

I.

Plaintiff began his employment with the DOL on April 10, 1981, when he was hired to work with disabled veterans. After four promotions, he became a Code Writer I in 1990. In 1993, defendant Leonard Katz, the Assistant Commissioner, asked plaintiff to serve as an unofficial liaison to labor unions that were complaining that DOL was not conducting timely investigation of their complaints. Plaintiff accepted that position, and for the next seven years, he continued to serve as unofficial liaison to those unions while also continuing his work as a Code Writer.

That arrangement continued until early 2000, at which time Katz and defendant Martin Gartzman, director of the Division of Wage and Hour Compliance, asked plaintiff to accept the position of assistant section chief of the pubic contracts section of the Wage and Hour Division, at a salary of $68,536. Plaintiff accepted that position. In order to become permanent in that title, plaintiff was required to take the civil service examination, and he registered to take the next one. Ultimately, plaintiff resigned before the exam was given.

Defendant Michael McCarthy, assistant director of the Division of Wage and Hour Compliance, evaluated plaintiff's job performance in September 2000, six months after plaintiff had assumed his responsibilities as assistant section chief. McCarthy rated plaintiff's work as "exceptional," adding that "[plaintiff] has done a remarkable job for someone with little previous supervisory or management experience, [and he demonstrates an] infectious enthusiasm for prevailing wage enforcement . . . ."

Friction began to develop between plaintiff and McCarthy in 2000, resulting from plaintiff's refusal to implement a computerized system to track and monitor public contract files because he believed WHATS (Wage and Hour Automatic Tracking System) was so flawed as to make it unusable. Only after McCarthy issued a direct order in January 2001 did plaintiff instruct his staff to start using WHATS.

In February and March 2001, McCarthy became concerned that plaintiff was not properly monitoring the work of his subordinates, and as a result, McCarthy "took it upon himself" to review all open public contract files to determine which ones were over six months old. McCarthy's March 2001 performance evaluation of plaintiff's work, unlike the September 2000 evaluation that had described plaintiff's work as "exceptional," resulted in a rating of "commendable." The evaluation described unsatisfactory performance in some areas of plaintiff's work including his inadequate supervision of his subordinates' productivity, which resulted in untimely completion of those subordinates' work assignments. Plaintiff's performance evaluation ended with the comment "[plaintiff] does a capable job despite little supervisory experience. He must find more time to ensure that his section supervisors and field staff follow established office policies and procedures."

Also in March 2001, defendant Harry Pappas was appointed confidential secretary to the Commissioner with the responsibility of bringing greater efficiency to the public contracts section of DOL, which put him in a supervisory position over plaintiff. McCarthy described Pappas's style of management as a "bludgeon and blow torch" approach. McCarthy recalled that everyone affected by Pappas's proposed changes to DOL policies and procedures complained about them.

On June 7, 2001, during a meeting with the public contracts staff, Pappas made statements that plaintiff believed violated the "New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environment in the Workplace." Pappas referred to Latino and female workers in offensive and derogatory terms. Plaintiff was present at the meeting and heard the remarks. Later that same day, in accordance with his responsibilities as a supervisor and in compliance with departmental directives requiring the reporting of such remarks, plaintiff reported Pappas's statements to McCarthy and Gartzman.

Plaintiff alleges that as a direct result of his filing of a report concerning Pappas's comments at the June 7 meeting, Pappas embarked upon a course of retaliation, reprisals and adverse employment actions. We will set them forth in some detail. The retaliatory actions included: Pappas's comment on June 20, 2001, to an employee on plaintiff's staff, James Valle, and in the presence of other employees, "this is your friend back there getting people to go after me and I'm going to cut his f[]ing head off"; Pappas forcing plaintiff to move his office into a file room where there was no telephone; Pappas and Gartzman prohibiting plaintiff's staff from discussing any public contract files with him, even though he was in charge of that unit; and Gartzman and Pappas forbidding plaintiff from being "privy to any information about public contracts."

Plaintiff further points to Pappas's comment made during a meeting of assistant section chiefs, when Pappas referred to "these so-called supervisors" as incompetent while looking directly at plaintiff. Plaintiff also contrasts DOL's failure to thoroughly investigate his workplace violence complaint against Pappas after Pappas threatened to "cut [plaintiff's] f[]ing head off," with the swift and thorough investigation of complaints made by Teresa Marin, Pappas's assistant and prot g , against plaintiff, all of which were later found to be unsubstantiated and were dismissed. Plaintiff also characterizes as retaliatory Marin's confronting him on an almost daily basis with "unanswerable" questions about WHATS; Pappas and Gartzman undermining his authority with one of his subordinates, Ray Smid, by directing Smid to undertake a project but instructing him not to tell plaintiff what he was doing; and Pappas attempting to have a valued and experienced member of plaintiff's staff fired, with the employee ultimately resigning from DOL because of Pappas's behavior.

Another act of reprisal, retaliation or harassment was Pappas's refusal on July 28, 2001, to permit plaintiff to rescind his request to be returned to his original Code Writer I position and the concurrent demotion of plaintiff. That sequence of events started on June 29, 2001, when Gartzman prepared documents requesting the Department of Personnel to remove plaintiff from his provisional appointment as Assistant Section Chief of the Wage and Hour Division and return him to his permanent title as Code Writer I based upon plaintiff's alleged performance deficiencies.

Unaware of Gartzman's pending request to demote him, but concerned about the way he had been treated, plaintiff wrote to McCarthy on July 6, 2001. He explained to McCarthy that he wanted to return to his former position of Code Writer "given the current climate of harassment, intimidation and innuendos." After learning of plaintiff's July 6, 2001 request to return to his original title, the Commissioner called plaintiff into his office and asked him why he had sought the demotion. In response, plaintiff described Pappas's course of conduct. After considering what plaintiff had told him, the Commissioner urged plaintiff to remain as assistant section chief. On July 12, 2001, three days after his meeting with the Commissioner, plaintiff wrote to McCarthy, stating "after consultation with Commissioner Boyd, I have decided to rescind my resignation dated July 6, 2001."

On either July 12 or 13, 2001, an employee in the Human Resources section called plaintiff to inform him "that [he] was out of the position" of assistant section chief as of July 28. When plaintiff protested that he had met with the Commissioner and rescinded his request to return to his Code Writer I title, the personnel representative responded that a decision had been made to "remove[] [him] from the position." Fifteen minutes later, plaintiff was told that Pappas wanted him to vacate his office that day.

Upon learning that Pappas had insisted that he immediately "clear his office out" and return to his Code Writer I position, plaintiff attempted to call the Commissioner, but was unable to reach him, because the Commissioner had just begun a sabbatical leave. Gartzman informed plaintiff of his demotion in a memorandum dated July 13, 2001. Upon receiving it, plaintiff approached Gartzman, who commented that "[i]t's out of my hands," and that Pappas had unilaterally made the decision to demote plaintiff.

When plaintiff returned to the position of Code Writer I on July 28, 2001, his salary was $66,867, rather than the $68,536 that he was earning as assistant section chief. After the demotion, plaintiff was forced to sit in his office and "make flyers for handouts."

Finally, on August 20, 2001, plaintiff wrote to Katz resigning from his position of Code Writer I as of August 30, 2001, and retiring from his employment with DOL. He explained in his letter that "due to the current climate of continued harassment, intimidation, retaliation and slanderous and libelous allegations which are currently affecting both my mental and physical well-being, I no longer wish to be employed by an organization which allows this type of treatment of its employees to occur." That August 20, 2001 letter of resignation ended plaintiff's twenty-year employment with DOL.

On May 22, 2002, plaintiff filed suit against DOL, Commissioner Boyd, Pappas, Assistant Commissioner Katz, Gartzman and McCarthy alleging that as a result of having reported Pappas's comments at the June 7, 2001 meeting, he had suffered reprisals and adverse employment actions in violation of CEPA. Plaintiff also alleged that he was constructively discharged from his employment with DOL because the harassment and reprisals he suffered at the hands of defendants left him with no alternative to quitting. Other counts in the complaint alleged defamation by Pappas. Plaintiff's complaint was consolidated by the Law Division with similar complaints filed by three other DOL employees, who had also heard and reported Pappas's unlawful comments during the June 7, 2001 meeting. Those three plaintiffs settled their claims in June and October 2004.

While plaintiff's case was proceeding, Pappas requested that the Department of Law and Public Safety provide him with a defense, pursuant to N.J.S.A. 59:10A-2. After the Attorney General denied Pappas's request, the Law Division granted Pappas's motion to compel the Attorney General to defend him, and the Appellate Division affirmed. Prado v. State, 376 N.J. Super. 231 (App. Div. 2005), rev'd, 186 N.J. 413 (2006) (Prado I). After the Supreme Court established the standard for the Attorney General's provision of a defense, and reversed and remanded to the Appellate Division, an appellate panel remanded the matter to the Attorney General, who again denied Pappas's request for a defense; we reversed that denial. Prado v. State, 388 N.J. Super. 359, 362, 373 (App. Div. 2006), certif. denied, 190 N.J. 394 (2007) (Prado II).

The litigation concerning Pappas's entitlement to a defense consumed fourteen months, during which time plaintiff's case was stayed. Although the stay was only in effect from July 2004 until the Law Division vacated it on May 6, 2005, discovery could not resume until an attorney entered an appearance on Pappas's behalf, which did not happen until September 6, 2005. Then, although plaintiff issued several notices to take the depositions of various DOL employees, those depositions were continually postponed because of changes in the deputy attorneys general (DAG) assigned to defend the case. Ultimately, four different DAGs handled this matter between its inception and the filing of the summary judgment motions. Each time a new DAG assumed responsibility for the file, he or she requested time to become familiar with the case, and obtained from plaintiff an adjournment of scheduled depositions.

Although the first DAG had agreed to schedule defendants' depositions for June 2005, the fourth and current DAG canceled those depositions and insisted that plaintiff's deposition be completed before she would produce any of her clients for deposition. Because of the delay resulting from the assignment of counsel to Pappas, defendants filed a motion to extend the discovery end date, and the Law Division granted an extension until December 31, 2005. That extension had been preceded by a similar extension of the discovery end date from July 2, 2004 to May 6, 2005, but as we have indicated, no discovery took place from July 2, 2004 through September 2005, in part because of the stay, and in part because of the DAG's refusal to produce her clients for deposition.

Defendants did not commence their deposition of plaintiff until December 15, 2005, and concluded it on February 2, 2006, which was beyond the discovery end date of December 31, 2005. As of December 31, 2005, plaintiff still had not had the opportunity to depose defendants. The DAG had provided seven dates in January and four dates in February 2006 for the depositions of defendants and other DOL employees. All of the dates she offered were after the discovery end date. Once counsel for plaintiff advised the DAG that he was available on the offered dates, the DAG changed course and reported that such dates were no longer available.

Unable to schedule depositions of defendants, plaintiff filed a motion to compel discovery. During the pendency of the motion, however, the DAG agreed to a schedule that would have completed the deposition of twelve witnesses during March and April 2006. On March 17, 2006, the court denied plaintiff's motion to compel defendants' depositions. The judge explained that discovery had ended on December 31, 2005, and that plaintiff had failed to move, before the end of discovery, to either extend discovery or compel the depositions, and that plaintiff was therefore "not vigilant with regard to [his] efforts to get discovery [completed within the discovery period]." The judge also pointed to the fact that the case was now on the trial list, an event that occurred after the filing of the motion. On March 20, 2006, the DAG advised plaintiff that in light of the court's March 17, 2006 denial of plaintiff's motion to compel depositions, she was canceling all of the depositions that the defendants had agreed to schedule during March and April.

On March 27, 2006, plaintiff filed a motion for reconsideration of the March 17, 2006 order. In a certification supporting that motion, plaintiff explained that during the time his motion to compel depositions was pending, defendants had agreed to a schedule that would have completed depositions of the remaining eleven witnesses in March and April 2006. The certification went on to explain that indeed plaintiff's attorneys had deposed one witness in February 2006, and had begun to depose McCarthy in March 2006 when defendants abruptly canceled the remaining scheduled depositions in light of the March 17, 2006 denial of plaintiff's motion to compel depositions. On April 12, 2006, the court denied the motion for reconsideration, concluding that plaintiff had failed to demonstrate that any facts had been overlooked or that there was any other reason to reconsider the March 17, 2006 order.

On March 13, 2006, defendants filed a motion for summary judgment, returnable April 12, 2006. The motion was adjourned until May 12, 2006, at which time the motions were granted. In granting the motion, the Law Division concluded that defendants' acceptance of plaintiff's request to return to his permanent civil service title and their refusal to acquiesce in plaintiff's later change of mind "is not the type of adverse employment action envisioned by CEPA"; and the conduct plaintiff characterized as an adverse employment action, including moving his office into a file room, forbidding him from discussing public contracts with other employees in his unit, forbidding them from talking to him, forcing him to make flyers for handouts, being subjected to four EEO charges and one workplace violence charge filed against him by Marin, "fail[ed] to demonstrate any adverse employment action by defendants."

Relying on Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), the judge held that "not everything that makes an employee unhappy qualifies as retaliation." For those reasons, and because the "reprisals that plaintiff alleges to have suffered . . . have [had] no effect upon his compensation or title or rank . . . the actions [complained of were not] virtually equivalent to discharge." Accordingly, the judge granted defendants' motion for summary judgment and dismissed plaintiff's CEPA claim.

In granting summary judgment to defendants on plaintiff's constructive discharge claim, the court concluded that defendants' conduct was not "so intolerable that a reasonable person would be forced to resign rather than continue to endure it." As to the defamation claim, the judge did not address the merits of plaintiff's claim, instead finding that plaintiff failed to satisfy the verbal threshold of the Tort Claims Act. In particular, the judge concluded that plaintiff had failed to demonstrate a permanent injury and medical expenses in excess of $3600 as required by N.J.S.A. 59:9-2. For that reason, the court granted defendants' motion to dismiss plaintiff's defamation claim as well.

II.

Summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When we review a grant of summary judgment, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, this court uses the same standard as the trial court applied. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We decide first whether there is a genuine issue of material fact, and if not, we then decide whether the trial court's ruling on the law was correct. Ibid.

We begin our analysis by addressing the dismissal of plaintiff's CEPA claim. CEPA prohibits an employer from taking "retaliatory action" against an employee who:

[o]bjects to . . . any activity . . . which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . or

. . . .

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

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

"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).

In Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003), the Court explained that to pursue a cause of action under N.J.S.A. 34:19-3(c), an employee must show: (1) a reasonable belief of a violation, (2) a whistle-blowing activity, (3) an adverse employment action, and (4) a causal connection "between the whistle-blowing activity and the adverse employment action."

Defendants do not dispute plaintiff's assertion that he engaged in whistle-blowing activity by reporting Pappas's comments to plaintiff's superiors, and that plaintiff reasonably believed that Pappas's comments violated a law, rule, regulation or policy. The only issue is whether defendants subjected plaintiff to "retaliatory action."

We agree with plaintiff that a jury could conclude that the conduct he alleges was sufficient to amount to a change in the terms and conditions of his employment, and thus to constitute an adverse employment action under N.J.S.A. 34:19-3(c). That conduct included Pappas's and McCarthy's refusal to accept plaintiff's rescission of his request to return to his permanent Code Writer I title; Pappas's threat to decapitate plaintiff and his reference to plaintiff as incompetent; Marin's daily harassment of plaintiff and his staff; Marin's filing of four groundless EEO complaints, and one workplace violence complaint, against him; Pappas's and Gartzman's orders to plaintiff's staff to conceal assignments from plaintiff; Pappas's attempt to terminate plaintiff's key aide; after plaintiff's demotion, Pappas taking away his telephone, locking him out of his office, and changing his assignment; and "them" requiring plaintiff to perform the task of making flyers for handouts.

The trial judge relied on Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 356-58 (App. Div. 2002), appeal dismissed, 177 N.J. 217 (2003), in which the plaintiffs, police officers who reported a superior officer's potential criminal conduct, alleged that a series of disciplinary charges and unfavorable directives constituted retaliatory action under CEPA. We held that, viewing the evidence in a light most favorable to the plaintiffs, "the allegations of retaliation are minor and have no impact on either plaintiffs' compensation or rank." Id. at 360. We also determined that the alleged retaliatory actions "relate[d] either to general actions that made plaintiffs' jobs mildly unpleasant or specific disciplinary charges." Ibid. The disciplinary charges were substantiated, and the unfavorable directives were appropriate and applied to all officers. Id. at 361.

Here, in contrast, plaintiff alleges incidents of reprisal that were directed to him or his staff, rather than to all staff equally as in Hancock. Defendants contend that Pappas's remarks referring to plaintiff as incompetent and threatening to cut his head off were not specifically directed to plaintiff. We disagree because a jury could reasonably find that plaintiff was their target. Indeed, the trial judge should have given plaintiff the benefit of all favorable inferences that a reasonable jury could draw. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Valle apparently interpreted Pappas's decapitation threat as directed toward plaintiff because he reported it to plaintiff. This was a potential threat of violence, which was more egregious than merely making plaintiff's job unpleasant. Additionally, plaintiff alleges that Pappas pointed at him when Pappas made the "incompetent supervisor" remark. Pappas's and McCarthy's refusal to accept plaintiff's rescission of his request for a demotion was also obviously directed at him alone.

Here, unlike Hancock, Marin's charges against plaintiff were unsubstantiated, but Gartzman used them, before the investigation was complete, as part of the reason for plaintiff's demotion. Defendants contend that they had no control over Marin, and that she was entitled to file complaints against plaintiff. However, plaintiff testified in his deposition that Pappas directed Marin's activities by "ma[king] her his mouthpiece." As we have noted, plaintiff is entitled to the benefit of all favorable inferences a reasonable jury could draw, Brill, supra, 142 N.J. at 540, and he is therefore entitled to the inference that Pappas directed Marin to retaliate against him.

In addition, a jury could conclude that Marin harassed plaintiff and his staff almost daily, treating staff members like "dogs on the street," to the point of causing them to cry. Pappas and Gartzman gave assignments to plaintiff's staff and directed them not to tell him. The plaintiffs in Hancock were not subjected to this type of treatment or undermining of their authority.

Plaintiff correctly argues that after Hancock was decided, the Supreme Court held in Green v. Jersey City Board of Education, 177 N.J. 434, 448 (2003) that even if retaliatory conduct does not affect an employee's job title or compensation, it can qualify as adverse employment action under N.J.S.A. 34:19-2(e). In Green, the Court held:

'Retaliation,' as defined by CEPA, need not be a single discrete action. Indeed, 'adverse employment action taken against an employee in the terms and conditions of employment,' N.J.S.A. 34:19-2e, can include . . . many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.

[Ibid. (emphasis added).]

After Green was decided, a panel of this court also held that even though the plaintiff retained his rank and pay, the incidents, though relatively minor, in the aggregate were sufficient to have survived a motion for summary judgment. See Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 435-36 (App. Div. 2005) (holding that the plaintiff, a police lieutenant who was denied training, forced to resign as leader of the SWAT team, removed from the detective bureau, and assigned to demeaning and non-supervisory jobs had established a prima facie case under CEPA even though he retained his rank and pay).

We do not view the decision in Klein v. Univ. of Med. & Dentistry, 377 N.J. Super. 28 (App. Div.), certif. denied, 185 N.J. 39 (2005), as compelling a contrary result. There, we held that suspension of a doctor's clinical privileges and then restoration with supervision did not constitute adverse employment action under CEPA. Id. at 45-46. We viewed this as "a minor sanction," id. at 46, because it did not result in termination, suspension, demotion, or "the functional equivalent of a demotion or suspension." Id. at 47. Although the plaintiff contended that working under the supervision of younger and less experienced colleagues was demeaning, we rejected that claim and held that "[a]n employer's actions are not retaliatory under CEPA merely because they resulted in a bruised ego or injured pride on the part of the employee." Id. at 46.

Here, in contrast, making direct assignments to plaintiff's staff and excluding him from his supervisory role could be considered the functional equivalent of a demotion or suspension. Demoting plaintiff after he withdrew his request to be demoted might also be considered the functional equivalent of a demotion. Additionally, the threat to decapitate plaintiff and the filing of groundless EEO complaints against him make his allegations more serious than those in Klein.

In light of Green and Nardello, we hold that the trial judge erred when he concluded that plaintiff had not submitted sufficient evidence to raise a genuine issue of fact as to whether defendants' conduct constituted an adverse employment action.

We next determine whether plaintiff presented sufficient evidence of a causal connection between his report of Pappas's discriminatory remarks and the adverse employment action to which defendants subjected him. "[T]he framework for proving a CEPA claim follows that of a[n] LAD [Law Against Discrimination, N.J.S.A. 10:5-1 to -42] claim," which in turn follows the framework of a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e. Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290 (App. Div. 2001).

Under this framework, to counter the difficulty of proving an employer's intent, once the plaintiff has established a prima facie case, which includes a causal connection between the whistle-blowing activity and the adverse employment action, the burden shifts to the employer to articulate legitimate, nondiscriminatory, business reasons for its conduct. Id. at 290-92. Then, the burden shifts back to the plaintiff to show that the employer's reasons were pretext, and that the real reason was the plaintiff's protected activity. Id. at 292. The plaintiff retains the burden of proof. Ibid.

A plaintiff may either discredit the employer's proffered reasons, or produce evidence "that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). To discredit the proffered reasons, the plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,'" and thus, infer that they were not the true reasons for the employer's action. Id. at 765 (citations omitted).

Here, the record demonstrates such inconsistencies and contradictions. Defendants contend that they demoted plaintiff because of poor job performance, all the while arguing that they did not demote him but instead merely granted his request for the job change. Plaintiff presented other evidence demonstrating inconsistencies and implausibilities in defendants' claim that they demoted him due to poor performance. For example, plaintiff points to defendants' failure to investigate his complaint about the beheading remark, but their swift investigation of Marin's complaints against plaintiff. In addition, Gartzman's severe criticism of plaintiff's work in his June 29, 2001 memorandum resulting in the demotion, was inconsistent with McCarthy's exceptional evaluation of plaintiff's performance in September 2000 and the commendable evaluation in March 2001. At no time prior to June 29, 2001 did McCarthy inform plaintiff that his job performance was deficient, attempt to assist him in improving, or allow him an opportunity to improve.

Boyd's request to plaintiff that he remain assistant section chief is also inconsistent with defendants' claim that plaintiff was demoted due to poor job performance. Defendants contend that Boyd was not aware of plaintiff's poor performance, but plaintiff is entitled to the benefit of his favorable evidence. Brill, supra, 142 N.J. at 540. Boyd's knowledge and motives are fact issues to be decided by a jury.

We cannot ignore the timing of Gartzman's request to demote plaintiff. That request was dated June 28, 2001, a mere twenty-one days after plaintiff reported Pappas's discriminatory comments on June 7. "The temporal proximity of employee conduct protected by CEPA and an adverse employment action is one circumstance that may support an inference of a causal connection." Maimone v. City of Atlantic City, 188 N.J. 221, 237 (2006).

Although defendants also point to their July 5, 2001, reprimand of plaintiff after he slammed doors and said "f[] this place," this occurred after Gartzman requested plaintiff's demotion in June and cannot retroactively serve as a basis for defendant's argument that poor performance justified plaintiff's demotion. Defendants further contend that plaintiff's poor relationship with Pappas, and complaints of harassment before the June 7 incident, undermine his causation claim and establish that he would have been demoted regardless of whether he had reported Pappas's discriminatory comments. Not so. The record demonstrates that plaintiff maintained a working, functional relationship with Pappas before June 7, which markedly changed after June 7. Again, plaintiff is entitled to the benefit of his favorable evidence. Brill, supra, 142 N.J. at 540.

Finally, although conceding that plaintiff engaged in whistle-blowing activity, defendants also contend that "plaintiff cannot blow the whistle if it has already been sounded," suggesting that others had already reported Pappas's objectionable comments on June 7 before plaintiff did so. We agree with plaintiff that CEPA does not require that an employee be the first or only person to complain in order to establish a cause of action. N.J.S.A. 34:19-3(c) requires only that a plaintiff object to an activity that he or she reasonably believes is in violation of a law, rule, regulation or public policy, not that he or she be the first to do so.

We thus conclude that although defendants made some showing that they demoted plaintiff because his job performance was unsatisfactory, plaintiff has produced evidence that could cause a jury to conclude that retaliation for reporting Pappas's discriminatory remarks was more likely than not the reason for the demotion, and that he has substantially discredited defendants' purported reasons.

Accordingly, we conclude that plaintiff submitted sufficient evidence to raise a genuine issue of material fact whether he was subjected to an adverse employment action, consisting of retaliatory harassment, and whether there was a causal connection between plaintiff's report of Pappas's discriminatory remarks and the alleged adverse employment action.

III.

Plaintiff next contends that the judge erred in dismissing his constructive discharge claim and argues that he produced sufficient evidence to raise a genuine issue of material fact on whether the conditions of his employment were so intolerable that he was forced to resign. As we discuss in section V, infra, we believe that the Law Division erroneously denied plaintiff's request to extend discovery. We are unable to determine from the existing record whether the dismissal of plaintiff's constructive discharge claim was error. We reverse the dismissal of that claim, and remand for the completion of discovery, without prejudice to defendants' right to renew their summary judgment motion on the constructive discharge claim once discovery is complete.

IV.

Next, plaintiff contends that the judge erred in dismissing his defamation claim. Plaintiff argues that Pappas's July 5, 2001 remark, that plaintiff was "a so-called supervisor" who did not know what he was doing, was made with actual malice and was defamatory. Defendant Pappas counters that because plaintiff cannot prove that the comment was directed at him, he cannot prove actual malice. Pappas also argues that plaintiff's argument fails to address the reason why the judge dismissed the defamation claim, plaintiff's failure to satisfy the damages threshold of N.J.S.A. 59:9-2(d). Defendants argue that the dismissal should be affirmed for this reason. We disagree.

The Law Division held that a plaintiff may recover damages for pain and suffering resulting from an injury against a public entity or public employee only when the plaintiff has sustained "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00." N.J.S.A. 59:9-2(d). The judge reasoned that because plaintiff neither alleged any permanent injury, nor satisfied this "monetary threshold," he was not entitled to pursue his defamation claim.

In reply, plaintiff argues that the verbal threshold of N.J.S.A. 59:9-2(d) applies only to damages for pain and suffering, and therefore does not encompass defamation claims, which involve damage to reputation and not damages for pain and suffering. Defamation, he argues, is the making of a statement that is "false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-65 (1999).

He further argues that N.J.S.A. 59:9-2(d) applies only to damages for pain and suffering resulting from an injury. "[T]he effect of the verbal threshold is limited to pain and suffering claims; economic or consequential damages are not limited by the Act." DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 164 (2005).

The damages that a defamed plaintiff can recover are not for pain and suffering. "[R]ecovery for slander exists to redress solely harm to reputation." Ward v. Zelikovsky, 136 N.J. 516, 539 (1994); see also Rocci v. Ecole Secondaire MacDonald-Cartier, 165 N.J. 149, 157 (2000) (plaintiff failed to allege "pecuniary or reputational harm"; embarrassment was insufficient to survive a motion for summary judgment on her defamation claim). Pecuniary harm to one's reputation is not pain and suffering and does not require medical care. The threshold set forth in N.J.S.A. 59:9-2(d) is thus inapplicable to a defamation claim. For that reason, the judge erred by relying upon N.J.S.A. 59:9-2(d) as a basis for dismissing plaintiff's defamation claim, and we reverse the grant of summary judgment.

V.

Finally, plaintiff contends that the judge erred by granting summary judgment before discovery was completed and by denying plaintiff's motion to compel depositions. Plaintiff argues that the orders of March 17 and April 12, 2006, reward defendants for improperly stalling discovery and reneging on their agreement to schedule depositions after the discovery end date.

Defendants counter that they were cooperative, that discovery was delayed for reasons beyond their control, and that plaintiff was not diligent. Defendants also argue that the discovery that plaintiff seeks could not have changed the outcome of the summary judgment motion.

Plaintiff sought to depose defendants and other witnesses before the discovery period ended. Much of his inability to do so resulted from the constant changing of DAG's, which was not the fault of plaintiff. Additionally, defendants' continuation of discovery after the end date led plaintiff's attorney to believe that defendants would continue to cooperate in providing discovery to plaintiff, which, after March 17, 2006, turned out to be no longer true.

Under these circumstances, the denial of plaintiff's March 17, 2006 motion to compel depositions, and the ensuing denial of the April 20, 2006 motion for reconsideration, constituted a mistaken exercise of the court's discretion.

In conclusion, the dismissal of the CEPA, constructive discharge and defamation claims is reversed, without prejudice to defendants' right to move for dismissal of the constructive discharge claim once discovery is complete. We remand for completion of discovery on a schedule to be determined by the trial court.

 
Reversed and remanded.

(continued)

(continued)

31

A-5520-05T5

July 10, 2007