WILLIAM BROWN v. THE STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1516-07T21516-07T2

WILLIAM BROWN,

Plaintiff-Appellant,

v.

THE STATE OF NEW JERSEY,

WILLIAM CURRY, STEVE ADAMS,

JOSEPH CASSISI, TYRONE

JOHNSON, STEVE TROYANOVICH,

and JACK AMBERG,

Defendants-Respondents.

_______________________________

 

Argued September 15, 2009 - Decided

Before Judges Skillman, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-7501-05.

Christopher A. Gray argued the cause for appellant (Alterman & Associates, attorneys; Mr. Gray, on the brief).

Ivo Becica, Deputy Attorney General, argued the cause for respondents (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Becica, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff William Brown appeals from the grant of summary judgment dismissing his complaint alleging retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 49. We affirm.

The following facts are pertinent to our review, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff began his employment with the Juvenile Justice Commission (JJC) as a Teacher's Assistant. He was promoted to Teacher 3 and assigned to work at St. Joe's Residential Group Center, where he worked until the JJC assigned him to the New Jersey Training School for boys in Jamesburg (Jamesburg).

The JJC then assigned plaintiff to Aftercare/Parole Services in Camden (Camden), where he, along with several teachers holding the Teacher 1 title, worked as a Youth Transition Coordinator (YTC). Plaintiff also served as a union shop steward for Communication Workers of America Local 1034. In that capacity and on his own behalf, he complained to his supervisors about matters he believed violated the law and created public safety issues. Plaintiff also complained about the alleged lack of racial diversity among parole officers in JJC's Southern Region.

Plaintiff eventually filed a grievance, alleging that he was working out of title by performing the duties of a Community Program Specialist. After reviewing the grievance, the JJC concluded that all Camden teachers were working out of title and had to be transferred. Accordingly, the JJC transferred those teachers holding the Teacher 1 title to other available Teacher 1 positions. Rather than transfer plaintiff to an available Teacher 3 position, the JJC offered him the opportunity to head a pilot program at the Lumberton campus of the Burlington County Special Services School District (Lumberton). Plaintiff stated his intention to accept that position; however, he imposed nine conditions, several of which were unacceptable because they violated JJC policies. As a result, the JJC did not transfer plaintiff to Lumberton.

Due to budget limitations and civil service restrictions on the Teacher 3 title, the only available Teacher 3 positions were at Jamesburg and in Elizabeth. The JJC transferred plaintiff to Jamesburg because it was closer to his home than Elizabeth. At Jamesburg, plaintiff works in the optical lab program teaching juveniles to make eyeglasses, among other duties. Plaintiff admitted that the JJC had to transfer him from Camden and that his transfer to Jamesburg occurred as a result of his grievance. Nevertheless, he filed a complaint, alleging that his transfer was in retaliation for his complaints. In granting summary judgment, Judge Kassel concluded that plaintiff failed to establish a causal connection between his complaints and his transfer to Jamesburg.

We use the same standard as the trial court when reviewing a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Rule 4:46-2(c) requires a court to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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); Brill, supra, 142 N.J. at 528-29. If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).

Applying these standards, based upon our review of the record we are satisfied that summary judgment was properly granted. We affirm substantially for the reasons expressed by Judge Kassel in his oral opinion of October 19, 2007. We add the following comments.

CEPA precludes employers from taking retaliatory action against employees who disclose or threaten to disclose "to a supervisor . . . an activity, policy or practice of the employer . . . that the employee reasonably believes" violates a law, rule, or regulation, or "is fraudulent or criminal." N.J.S.A. 34:19-3(a). In addition, CEPA precludes employers from retaliating against an employee who "[o]bjects to or refuses to participate in any activity, policy or practice which the employee reasonably believes" violates a law, rule, or regulation; "is fraudulent or criminal"; or "is incompatible with a clear mandate of public policy concerning the public health, safety or welfare." N.J.S.A. 34:19-3(c).

To prove a CEPA claim under subsection a. or c., plaintiff must establish, among other things, that "a causal connection exists between the whistle-blowing activity and the adverse employment action." Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999). Plaintiff has not presented evidence supporting a finding of a causal connection. His transfer to Jamesburg was to resolve his grievance and had nothing to do with his complaints.

Further, although not specifically addressed by Judge Kassel, plaintiff's LAD retaliation claim warrants dismissal. CEPA's election of remedies provision states:

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

[N.J.S.A. 34:19-8 (emphasis added).]

This language is "clear and unambiguous" and the "institution of an action under CEPA constitutes a waiver of the rights and remedies available to plaintiff under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law." Young v. Schering Corp., 275 N.J. Super. 221, 238 (App. Div. 1994), aff'd, 141 N.J. 16 (1995). In other words, where a litigant seeks redress under CEPA, the litigant cannot plead other common law or statutory causes of action for the same conduct. Ibid. However, "the waiver provision does not bar common law or statutory claims that are distinct from the CEPA claim." Notte v. Merchants Mut. Ins. Co., 386 N.J. Super. 623, 630 (App. Div. 2006).

Plaintiff's LAD retaliation claim is not distinct from his CEPA claim and is based on the same facts as his CEPA claim. Indeed, plaintiff concedes in his reply brief that "[b]ecause the perceived lack of diversity [among parole officers in JJC's Southern Region] and the related whistle-blowing fall within the ambit of CEPA, it has thus been precluded as an issue to be brought under the NJLAD."

Affirmed.

We decline to address plaintiff's contention, raised for the first time on appeal, that Judge Kassel should not have heard the summary judgment motion because it was returnable more than 30 days before the scheduled trial date in violation of Rule 4:46-1. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); R. 2:5-4.

(continued)

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A-1516-07T2

September 29, 2009