PAMELA R. BERGSTROM v. WURTH USA, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PAMELA R. BERGSTROM,

Plaintiff-Appellant,

v.

WURTH USA, INC., MICHAEL

KRAUSE and DANIEL MOLINARI,

Defendants-Respondents.

Argued April 29, 2014 Decided June 19, 2014

Before Judges Alvarez and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6177-11.

George J. Cotz argued the cause for appellant.

Jack T. Spinella argued the cause for respondents (Nicoll Davis & Spinella LLP, attorneys; Christopher M. Santomassimo, Barbara Drasheff, and Mr. Spinella, of counsel and on the brief).

PER CURIAM

Plaintiff Pamela R. Bergstrom appeals the January 18, 2013 summary judgment dismissal of her statutory retaliation claim brought pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Earlier, the court dismissed her common-law wrongful discharge claim under Pierce v. Ortho Pharmceutical Corp., 84 N.J. 58 (1980), and pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Only dismissal of the CEPA claim is being appealed. We affirm.

The motion court granted summary judgment in reliance on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), finding that, since Bergstrom's job description required her to engage in the activities that she identified as leading to her termination, the conduct did not fall within the category of whistleblowing protected by CEPA.1 Additionally, the judge concluded that, even if Bergstrom had demonstrated a prima facie CEPA case, defendants "presented a legitimate nondiscriminatory reason[] for" termination, and Bergstrom had not refuted it.

In reciting the factual backdrop, we "view the evidence in the light most favorable" to Bergstrom. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (internal quotation marks omitted). Wurth is a supplier of automotive parts, products, and services, including automotive chemicals, regulated under various schemes, among them the California Air Resources Board (CARB) scheme. Bergstrom was transferred to the product department of Wurth in December 2008 or January 2009. Her role as "product department and material safety data sheet administrator" included the completion of administrative tasks relating to regulatory product compliance. Bergstrom checked regulatory compliance, responded to requests from customers and the sales force for material safety data sheets, and communicated with other staff about the impact of the regulatory schemes on the sale of Wurth products. She does not have a technical or scientific background, so her duties were limited to administrative responsibilities.

Daniel Molinari, Bergstrom's last supervisor, had worked at Wurth since June 6, 2010. Molinari, who has a science background, had substantial experience in the sales of chemical and food industry products, and compliance with labelling and ingredient values in their manufacture and distribution. When Molinari first arrived at Wurth, after consultation with all compliance staff, he blocked the sale of a number of the products that plaintiff asserted that she had earlier identified as violating regulatory schemes.

CARB instituted a regulation effective December 31, 2010, that potentially rendered Wurth's multi-purpose solvents unfit for sale in California. The regulation contained a "'sell through period'" that permitted the continued sale of products not in compliance through 2013 so long as they were manufactured prior to December 31, 2010. CARB generally required that regulated products bear a manufacturer's date stamp.

Molinari determined that one of Wurth's products, Article No. 89093000 (AN8-0), should be blocked from distribution in California, except for units manufactured on or before the sell-through cutoff. Shortly after the regulation went into effect, he instructed Bergstrom to monitor AN8-0's stock levels until an appropriate replacement could be located. In the process, Bergstrom discovered that AN8-0's manufacturer had failed to date-stamp some of the stock. Molinari claimed that, after learning of the omission, he had the undated stock recalled from California and sent to Florida, where a date code was not required. Subsequently, in September 2011, Wurth and its environmental consultants determined that AN8-0 was not banned under the new CARB regulation and decided to lift its sale blockage.

Bergstrom alleged, however, that in early May 2011, during a smoke break with Molinari and two other co-workers, Molinari suggested that Wurth tell customers that a different stamp on the product was a date code. She protested. Molinari then suggested that Wurth add a date to the stock on hand, and Bergstrom got upset and said that the conduct would be fraudulent and criminal, she could not believe what she was hearing, and that she wanted no part of it. She also alleged that, after her comments, Molinari became very angry.

Bergstrom believed that in early 2011 Molinari started to display antagonism towards her, including making pejorative comments and engaging in offensive conduct. Additionally, a chemist was hired to join the compliance team, and Bergstrom began to feel as if her "compliance duties were taken away little by little."

When deposed, Molinari acknowledged discussing the undated stock of AN8-0 with Bergstrom. He claimed that he learned Wurth could not date stamp the items themselves after "brainstorm[ing]" a variety of alternatives. The item was removed from sale in California, where the CARB regulations made it unacceptable, and shipped to other parts of the country where it did not violate a regulatory scheme.

On May 27, 2011, Raymundo Rivera, another product department employee, came to see Molinari about Bergstrom. According to Molinari,

[Rivera] told me that [Bergstrom] had ranted to him about me, using foul language [] , saying, among other things, "[Molinari] is an egotistical son of a bit[]h . . . he doesn't know what I do all day" and "as soon as I close on my mortgage loan I am f[]cking out of here." [Rivera] further said that [Bergstrom]'s outburst and behavior made him very uncomfortable, that her behavior was unprofessional, inappropriate, and did not give a good impression of the Product Department or represent the company well, and he asked that her conduct be addressed.

[(third omission in original).]

The in-house policy was that when an employee was uncomfortable with a co-worker's conduct, he or she was to first take the problem to the person's department head. Molinari told Rivera, who described the incident as the worst display of employee conduct that he had ever seen, that he could communicate his concerns to human resources. A few days later, on May 31, 2011, Molinari discussed Rivera's report with Steve Mullen, Wurth's chief financial officer, who also managed the human resources department. Mullen took the position that, as far as human resources was concerned, Bergstrom's behavior, if true, "was egregious and unacceptable." Mullen and the human resources staff decided that if plaintiff denied the incident, it should be investigated, and appropriate action taken once the investigation was completed. If plaintiff confirmed the conduct, she should be terminated. When Molinari and Pat Brawer, another human resource employee, discussed the matter with Bergstrom, she readily admitted the conduct, was "unapologetic," and said that she had "done worse." She was therefore terminated.

Bergstrom alleged that she had a long-standing conflict with Michael Krause, the president and CEO of Wurth, over regulatory issues. She claimed that she and Krause had numerous disagreements regarding compliance with regulations. In 2009 she discovered that thirty-five of Wurth's products were noncompliant, and when she recommended that sales be blocked, Krause declined to do so. Bergstrom also alleged that Krause took to calling her '"Erin Brocovich' in a sarcastic way." From the record we have, Krause did not participate in the decision to fire Bergstrom.

As we have said, the judge, in his decision to grant summary judgment, noted that Wurth offered a reasonable rationale for Bergstrom's termination, namely, her inappropriate language regarding Molinari, which she had communicated to Rivera. Ultimately, he concluded that even if Bergstrom made out a prima facie CEPA case, defendants had "presented a legitimate non-discriminatory reason[] for" terminating Bergstrom, she had failed to refute that legitimate reason, and, so, her complaint should be dismissed.

We review an order granting summary judgment employing the same standard as the motion judge. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). Accordingly, we examine the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact; if not, we ask whether the moving party is entitled to summary judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

CEPA was enacted to "protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (internal quotation marks omitted). Employers are prohibited from taking retaliatory action against employees who "object[] to, or refuse[]" to participate in activities that they believe are "in violation of the law," "fraudulent, or criminal," or otherwise "incompatible with a clear mandate of public policy." N.J.S.A. 34:19-3(c). A plaintiff's evidentiary burden in establishing a prima facie case is modest, equated with the McDonnell Douglas Corp.2 burden-shifting paradigm. See Victor v. State, 203 N.J. 383, 408 (2010) (characterizing the McDonnell Douglas plaintiff's burden as modest); Zappasodi v. State, Dep't of Corr., 335 N.J. Super. 83, 89-90 (App. Div. 2000) (applying the McDonnell Douglas burden-shifting paradigm in the CEPA context). Once a plaintiff has established a prima facie case, the burden shifts to the defendant to demonstrate the legitimacy of the objected-to conduct. McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677. If the defendant is able to establish a legitimate business reason for an employment decision, the burden shifts back to the plaintiff, who must then demonstrate the reason is pretextual. Id. at 804, 93 S. Ct. at 1825, 36 L. Ed. 2d at 679.

In order to establish a prima facie case of retaliation under CEPA, a plaintiff must demonstrate:

(1) a reasonable belief that the employer's conduct was violating either a law, rule, regulation or public policy; (2) [] she performed a "whistle blowing" activity as described in N.J.S.A. 34:19-3a or c; (3) an adverse employment action was taken against [] her; and (4) a causal connection existed between [her] whistle-blowing activity and the adverse employment action.

[Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005).]

Once such a prima facie case is established, defendants must "come forward and advance a legitimate, nondiscriminatory reason for the adverse conduct." Id. at 38. If such reasons are proffered, "plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Id. at 39.

We are not convinced that a causal connection existed between Bergstrom's whistleblowing activity and the adverse employment action. After all, the initial, more serious, and longstanding claim of whistleblowing activity made by Bergstrom occurred approximately a year before her termination. In any event, the human resources staff involved in Bergstrom's termination did not appear to have any information regarding the alleged whistleblowing activities, or to hold any resentment that may have been harbored by Krause or Molinari. In fact, human resources decided that if Bergstrom denied the conduct, an investigation would follow to determine the truth of the occurrence, and that only if she admitted the statements would she be terminated.

Even if we assume, as did the motion judge, that a prima facie case was demonstrated, we are, as he was, satisfied that defendants have demonstrated that the termination was based on a legitimate reason and that plaintiff, in turn, has failed to establish that the reason was pretextual. Defendant's use of foul language when referring to her manager and statement that as soon as she was financially able she was leaving the company, established a basis for termination entirely unrelated to her job performance. And, plaintiff does not factually substantiate that the firing was pretextual; the termination decision was made by persons seemingly unaware of any whistleblowing history and who were willing to investigate before any action was taken against her.

That Krause may have referred to Bergstrom as Erin Brocovich or that Molinari may have been unhappy with her disagreement with his initial suggestion regarding the undated AN8-0 stock does not constitute a genuine issue of material fact as to the legitimacy of her termination. Bergstrom's contacts with Krause regarding noncompliance commenced in 2009 and about AN8-0, specifically, in 2010. Bergstrom was not terminated until May 31, 2011. Although earlier that month Bergstrom had expressed outrage at Molinari's suggestion made during a smoke break, that conversation alone is insufficient as Molinari did not, in fact, stamp dates on the product. See Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002) (explaining that, under CEPA, "[t]emporal proximity, standing alone, is insufficient to establish causation"), appeal dismissed, 177 N.J. 217 (2003). The product was simply sold in outlets other than California.

What is not clear, and what plaintiff cannot demonstrate, is that Molinari was an active participant in the decision to investigate and, if necessary, terminate her. He went to human resources initially once informed of Bergstrom's comments, but he left the manner of proceeding and the decisions to others. Therefore, defendants have advanced a legitimate reason for termination, and plaintiff has failed to demonstrate any basis for the conclusion that the proffered explanation was pretextual.

Affirmed.

1 The Supreme Court recently granted certification in a case concerning the proper breadth of this interpretation. See Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 406-08 (App. Div. 2013), certif. granted, 217 N.J. 292 (2014).

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).