BERNARDFLASHMAN v. JET AVIATION FLIGHT SERVICES, INC

NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
     Although it is posted on the internet, this opinion is binding only on the
       parties in the case and its use in other cases is limited. R. 1:36-3.




                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-1526-16T2

BERNARD FLASHMAN,

       Plaintiff-Appellant,

             v.

JET AVIATION FLIGHT SERVICES, INC.,

     Defendant-Respondent.
___________________________________

             Submitted January 17, 2018 – Decided January 29, 2018

             Before Judges Fisher and Sumners.

             On appeal from Superior Court of New Jersey,
             Law Division, Bergen County, Docket No.
             L-0636-14.

             Steinberg Law, LLC, attorneys for appellant
             (Franklyn C. Steinberg, III, on the brief).

             Morgan, Lewis & Bockius, LLP, attorneys for
             respondent   (Richard   G.   Rosenblatt and
             Kimberley E. Lunetta, on the brief).

PER CURIAM

       Plaintiff appeals a summary judgment which dismissed his CEPA1

complaint; he argues he made a sufficient showing that his employer



1
    Conscientious Employee Protection Act, 
N.J.S.A. 34:19-1 to -8.
– defendant Jet Aviation Flight Services, Inc. – terminated his

employment due to complaints he lodged about defendant's chain of

communications, which he believed compromised flight safety. We

find    insufficient   merit   in   plaintiff's    arguments    to    warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm

substantially for the reasons set forth by Judge John J. Langan,

Jr. in his thorough and well-reasoned written opinion. We add only

the following.

       To sustain a CEPA claim, a plaintiff must furnish proof that

would   enable   a   determination,   as   a   matter   of   law,    that   the

plaintiff has identified "the asserted violation with adequate

particularity" for a jury's consideration. McLelland v. Moore, 
343 N.J. Super. 589, 601 (App. Div. 2001). To accomplish this, a

plaintiff must "identify and enunciate the specific terms of a

statute, rule, regulation, declaratory ruling, professional code

of ethics, or clear expression of public policy that the employee

reasonably believes would be violated if the facts as alleged are

true and determine that there is a substantial nexus between the

complained-of conduct and the law or public policy identified by

the court or the plaintiff." Klein v. Univ. of Med. & Dentistry

of N.J., 
377 N.J. Super. 28, 40 (App. Div. 2005). In considering

plaintiff's attempt to meet this standard, we look to the nature

of defendant's business and plaintiff's role in the organization.

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     Defendant maintains two distinct flight operations. Its "Part

91" operation includes the maintenance, operation, and piloting

of private, non-commercial jets. Before 2009, this was a rather

small operation. In 2009, defendant acquired another entity, which

had employed plaintiff, and thereafter operated that entity's

"Part 135" operation, which includes commercial charter flights.

Upon that acquisition, plaintiff became Director of Operations

(DO) for defendant's Part 135 operation. Defendant did not have –

because it was not required to have – a DO position for its smaller

Part 91 operation.

     In late 2011, defendant decided it would reorganize so as to

have a single DO with responsibility over both Parts 91 and 135.

Defendant placed plaintiff into that role but plaintiff asserted

he should be given a substantial salary increase commensurate with

that undertaking. This led defendant to take another course.

     Defendant had hired a new Chief Pilot – a position lower in

authority than the DO position – for both operations. Because

plaintiff had refused to perform the dual responsibilities of DO

for both parts, defendant gave the DO job to the Chief Pilot; as

a result, defendant no longer had a need for plaintiff and his

employment was terminated. Plaintiff claims this reorganization

was an "artifice," designed to impact only him. And, indeed,



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plaintiff was the only employee terminated as a result of the

reorganization.

     In     arguing   that   safety         concerns     were   implicated       by

defendant's actions and its manner of communicating, plaintiff

emphasizes that the DO position serves, in essence, as a "watch

dog" to ensure compliance with federal regulations and "overall

safe operation" of the business. Plaintiff claims his role in the

organization was repeatedly undermined, and that his complaints

about this undermining led to his dismissal in violation of CEPA.

In response, defendant contends no safety concerns were implicated

and plaintiff's complaints about his authority being undermined

were mere manifestations of a personal power trip.

     When    drilling   beyond    plaintiff's       conclusory      and   general

statements and allegations about an impact on safety, we find, in

borrowing Gertrude Stein's comment about the City of Oakland,

"there is no there there." As the trial judge observed, plaintiff

failed to identify "a clear standard by which [defendant's] conduct

is to be gauged." Plaintiff suggested only that management "was

not conducted with the highest degree of safety" without providing

"a   definite    standard"   as    to       how   this    alleged    method      of

communication impacted "the level of safety owed to the flying

public." Indeed, the only plausible interpretation of plaintiff's

broad allegations is, as the judge determined, that any significant

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communication flaws would be improved by the appointment of a

single DO over both Parts 91 and 135. When defendant reorganized

to consolidate these roles – thereby eliminating the potential for

confusion in communications that allegedly concerned plaintiff –

someone other than plaintiff was given the DO position. The judge

accurately    summarized     this    occurrence   and      its   impact      on

plaintiff's CEPA claim in the following way:

            Again, like the plaintiff in Klein, although
            the   [p]laintiff's    recommendations    could
            potentially improve the safety and efficiency
            of   [defendant],    "they   are    essentially
            disagreements with [defendant's] internal
            procedures and priorities . . ., and are not
            [based on] an objectively reasonable belief
            that [aviation safety] mandates are being
            violated." [
377 N.J. Super. at 44]. In fact,
            [defendant] implemented one of [p]laintiff's
            recommendations and gave [p]laintiff the role
            he recommended. [Defendant] placed [p]lain-
            tiff as [DO] over both Part 91 and Part 135
            operations. According to [p]laintiff, [defen-
            dant] having one [DO] for both Part 91 and
            Part 135 operations would eliminate the
            confusion   employees,   who   work   in   both
            operations, had because now the employees who
            would report to only the [DO], instead of
            someone else. Therefore, this [c]ourt finds
            that [p]laintiff's whistleblowing activity
            [w]as nothing more than a private disagreement
            on how to operate [defendant's business].

            [(Some alterations       added,   others      in   the
            original).]

     CEPA    was   enacted   to   prevent   retaliatory    action    when    an

employee blows the whistle on improper activities, "not to assuage


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egos or settle internal disputes at the workplace." Id. at 45.

After a close and careful review of the factual record, which we

undertook in complying with the applicable de novo standard of

review, Townsend v. Pierre, 
221 N.J. 36, 59 (2015), we agree that

when viewing the allegations in the light most favorable                  to

plaintiff, Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520,

540 (1995), defendant was entitled to summary judgment because

plaintiff failed to sufficiently identify any rule, regulation,

statute,   or   public   policy   violation   sufficient   to   bring   his

complaints within CEPA's ambit; plaintiff demonstrated only an

internal squabble and disputes personal only to him.

    Affirmed.




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