TAMMY A. RUSSELL v. RUTGERS, THE STATE UNIVERSITY

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                                                          SUPERIOR COURT OF NEW JERSEY
                                                          APPELLATE DIVISION
                                                          DOCKET NO. A-4230-16T2

TAMMY A. RUSSELL,

           Plaintiff-Appellant,

v.

RUTGERS, THE STATE
UNIVERSITY and JULIE L.
AMON, Associate Chancellor,

           Defendants-Respondents,

and

WENDELL E. PRITCHETT,
Chancellor,

           Defendant.


                    Argued September 20, 2018 – Decided November 29, 2018

                    Before Judges Alvarez and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-2607-15.

                    Nancy M. Mahony argued the cause for appellant.
             Ellis I. Medoway argued the cause for respondents
             (Archer & Greiner, PC, attorneys; Ellis I. Medoway and
             Tracy Asper Wolak, on the brief).

PER CURIAM

     Plaintiff Tammy A. Russell appeals the April 28, 2017 grant of summary

judgment to defendants Rutgers University and Julie L. Amon. 1 Russell sued

the named defendants, alleging violations of the Conscientious Employee

Protection Act (CEPA),  N.J.S.A. 34:19-1 to -14. For the reasons that follow,

we affirm.

     Amon, the Associate Chancellor, hired Russell in May 2012 to serve as

the Director of the Rutgers Camden Educational Opportunity Fund (EOF)

Program. She supervised Russell's job performance.

     The EOF was established to support access to higher education for

economically or educationally disadvantaged students.        The New Jersey

Commission on Higher Education has adopted regulations regarding the

administration of the program, through which the State provides funding for

campus programs and student grants.        This includes funding not only for

scholarships, but for academic year and summer institute programming.



1
   Summary judgment was also granted to the third defendant, Wendell E.
Pritchett, however, that dismissal is not being appealed.
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      Among the EOF Director's responsibilities is oversight of the program

budget, which must be submitted each year to the State. Separate budgets for

the academic and the summer terms are required, and the Rutgers EOF office in

New Brunswick submits one report to the State on behalf of both campuses. The

Director is also required to work with state representatives, supervise staff,

oversee the delivery of student services, and plan the summer institute.

      Upon assuming her job duties, Russell discovered EOF funds may have

been used to pay salaries for non-EOF Rutgers staff. After she raised the issue,

the problem was remedied. Russell alleges that challenging this practice early

on, changed the way she was perceived in the workplace.

      Russell claimed Amon took budgeting responsibilities away from her once

she expressed concern over budgeting practices. She also claimed Amon told

her that she would not have access to the budget, was no longer responsible for

completing state mandated EOF reports, and her responsibilities were otherwise

drastically reduced after she challenged Amon about EOF expenses being out of

compliance with State regulations.

      Russell acknowledged, however, that she was still responsible for

reviewing expenditures and approving items in the budget even though she did

not physically complete it. She was required to sign off on the budget before it


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went to New Brunswick. Russell said that State EOF employees complained to

her about the EOF reports being untimely and completed incorrectly.

      Russell also said in deposition that she "perceived" that Amon intended to

make the job more difficult if she did not approve the budget. But she admitted

that Amon never forced her to approve it or threatened her about it in any

fashion.   She and Amon disagreed on Russell's interpretation of EOF

regulations, and when there was a dispute, Amon would send Russell to other

members of the staff for assistance or perform the task herself. At deposition,

Russell testified she was told by a State EOF employee that Amon blamed her

for EOF report issues.

      On November 6, 2012, Russell sent an email to the Rutgers Camden Vice

Chancellor for Finance and Administration, Larry Gaines, raising concerns

regarding the budget and budgeting process, and highlighting problem areas the

State had identified with the EOF reports. In the email, she also indicated she

did not currently have access to some of the information noted in specific budget

items, and that the staff that had assumed her EOF duties had never performed

the work before, and thus had limited ability to correctly complete the reports.

Gaines emailed Amon and the relevant staff asking for an in-person meeting.




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Amon responded that no meeting was necessary, and that she would meet with

Russell personally to discuss the issue.

      On November 27, 2013, Russell wrote to Pritchett as follows:

            I apologize for contacting you directly but find it very
            important that I meet with you at your earliest
            convenience to discuss my concerns with [Amon],
            including the continued financial misdirection she
            provides which is negatively affecting EOF and this
            University.        Understand the New Brunswick
            compliance office and others in New Brunswick are
            now involved and prior to me moving forward with an
            official grievance procedure I wanted you to be well
            aware of all details in order for you to provide insight
            and have the opportunity to be informed and part of this
            process. . . . Please let me know how you wish for me
            to schedule an appointment with you or how you wish
            for me to proceed.

Pritchett thanked Russell for the communication, but directed her to others to

address the issues.

      As a result of Russell's allegations, Rutgers performed an internal

investigation of Rutgers Camden's EOF program. The report concluded that

although there was no need for further investigation, a full review of the program

should be made in a subsequent fiscal year, noting that EOF was currently on

the internal audit department's annual plan for fiscal year 2016. The main

concerns identified during this internal audit included the allocation of

administrative assistant salary and failure to timely sign off on the budget, which

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had been resolved. Governance and fund sources were identified as requiring a

full review of the EOF program for all of Rutgers, not just the Camden campus,

on its fiscal year 2016 annual audit plan.

         Russell's first performance review, made in April 2013, indicated she met

performance standards overall but did not meet expectations when evaluated

with regard to her collaboration skills. Under this category, Amon noted that

Russell had difficulty communicating with other staff, who had complained her

tone was "abrasive, harsh, and combative." Throughout 2013, Amon expressed

concerns to Russell in writing regarding her timeliness, communications

problems, and failure to follow instructions regarding the completion of cer tain

tasks.

         From January 2013 to July 2013, Russell's colleagues also expressed

concerns about her performance in writing to Amon. On August 1, 2013, Amon

forwarded a memo to Russell outlining problems with Russell's job

performance,      including   Russell's   "poor   communication    and   program

management." She commented that the issues had resulted in "serious damage

to both your credibility and that of your office."

         Nonetheless, in April 2014, Russell's performance was rated again as

meeting standards overall. However, Amon continued to inform Russell, from


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                                           6 June to July 2014, about problems with her job performance, including the

submission of work containing errors, decision-making beyond Russell's scope

of authority, timeliness, significantly poor event planning, and failure to convey

important information to Amon.

      Between April 2014 and July 2014, Amon received additional complaints

from Russell's colleagues along the same line as earlier problems: poor event

planning, untimeliness, and tone. On July 24, 2014, Amon forwarded a pre-

termination letter and scheduled a conference for the following day. The next

day, Amon terminated Russell, referring back to the August 1, 2013 memo.

      On July 24, 2014, Russell advised the Associate Vice President of Rutgers

Labor Relations Department that she was "fully prepared to have legal counsel

represent me and am very prepared to go outside of Rutgers University regarding

this case."   The email was forwarded to the Director of the Office of

Employment Equity, who assigned it to staff for investigation. Russell was then

suspended with pay, pending the outcome of the investigation. Rutgers Office

of Employment Equity issued an August 18, 2014 report concluding that no

violation of Rutgers employee policies had occurred, as there did not appear to

be a "causal nexus between [Russell's] complaint in November 2013 and the

issuance by [Amon] of the July 24, 2014 letter scheduling a conference with her


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to discuss the termination of her employment, and/or the issuance of the dr aft

letter of termination on July 25, 2014." The final termination letter was similar

to the earlier version, specifying in some detail errors and inaccuracies in budget

submissions and serious problems with the summer institute planning program.

      Turning to the genesis of this appeal, the Law Division judge decided the

summary judgment motion from the bench. After disposing of the claim against

Pritchett, who had left the university weeks before Russell's termination, the

judge said it was clear based on his review of the submissions that Russell "was

having issues on the job." Despite the fact she was informed about the problems,

she did not change course. He opined that the legions of complaints against her,

as well as her difficulties in planning the most important events for which she

was responsible as the EOF Director, were what resulted in her termination. He

concluded that the reasons defendants proffered for the termination were "real"

and "existed both before and after the November 2013 purported whistleblowing

email was sent[.]"

      On appeal, Russell raises the following points:

            POINT I
            THE TRIAL COURT'S GRANT OF SUMMARY
            JUDGMENT IN FAVOR OF DEFENDANTS
            SHOULD BE REVERSED BECAUSE IT DOES NOT
            COMPORT WITH R. 4:46-2.


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            A.    The Trial Court Erred When It Rejected
            Plaintiff's Evidence Which Demonstrates That
            Plaintiff's Whistleblowing And Defendant Amon's
            Retaliation Began Soon After Plaintiff's Hire in May
            2012.

                  1.    The Record Is Replete With Evidence Of
                  Plaintiff's Whistleblowing in 2012.

                  2.   The Trial Court Erred When It Concluded
                  That Plaintiff's Sole Negative Job Action Was
                  Her August 2014 Termination.

            B.    Defendant Amon's Animosity Towards Plaintiff
            is Unmistakeable; Moreover, It Creates Factual Issues
            That Can Only Be Resolved By A Trial.

      We review grants of summary judgment employing the same standard as

the motion judge. Bhagat v. Bhagat,  217 N.J. 22, 38 (2014). Therefore, we

"review the competent evidential materials submitted by the parties to identify

whether there are genuine issues of material fact and, if not, whether the moving

party is entitled to summary judgment as a matter of law."        Ibid.; Brill v.

Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995); R. 4:46-2(c). In order

to prevail under a CEPA claim, a plaintiff must demonstrate:

            (1) he or she reasonably believed that his or her
            employer's conduct was violating either a law, rule, or
            regulation promulgated pursuant to law, or a clear
            mandate of public policy;

            (2) he or she performed a "whistle-blowing" activity
            described in  N.J.S.A. 34:19-3(c);

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            (3) an adverse employment action was taken against
            him or her; and

            (4) a causal connection exists between the whistle-
            blowing activity and the adverse employment action.

            [Lippman v. Ethicon, Inc.,  222 N.J. 362, 380 (2015)
            (quoting Dzwonar v. McDevitt,  177 N.J. 451, 462
            (2003)).]

Where a plaintiff establishes these elements, a defendant "must come forward

and advance a legitimate nondiscriminatory reason for the adverse conduct

against the employee." Klein v. Univ. of Med. & Dentistry of N.J.,  377 N.J.

Super. 28, 38 (App. Div. 2005) (citation omitted). A plaintiff must then raise

genuine issues of material fact establishing that the employer's proffered

explanation is pretextual. Id. at 39.

      Russell contends that the trial court overlooked or ignored incidents

before the November 2013 email she sent Pritchett, incidents which Russell

claims were protected under CEPA. The record does not support the argument,

however, that even if her complaints were protected by CEPA, any retaliatory

action was taken against her.

      Certainly, stripping an employee of job responsibilities has long been

recognized in New Jersey as retaliatory action. See Mancini v. Twp. of Teaneck,

 349 N.J. Super. 527, 564 (App. Div. 2002).


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      The trial court rejected Russell's allegation that, for retaliatory reasons,

she had been stripped of job responsibilities. We see no error in that finding.

Although Russell testified in deposition that the dispute regarding the use of

EOF funds to pay non-EOF salaries arose shortly after her appointment, the

problem was remedied and the salaries properly removed from the EOF budget.

After that conflict, Russell continued to be actively involved with the budget,

and with state mandated EOF reports. She was required to review expenditures

and approve certain processes, even if she no longer prepared the EOF budget

report. She signed off on it before it was forwarded to New Brunswick for

approval. Russell said she "perceived" that if she did not approve a budget,

Amon would make her job much more difficult, but she was unable to identify

anything that Amon did or said to that effect. The absence of specifics, even

viewing the allegations in a light most favorable to plaintiff, does not support

the claim of retaliatory diminution of the job responsibilities.

      In support of her position, Russell relies on Nardello v. Twp. of Voorhees,

 377 N.J. Super. 428 (App. Div. 2005). There, however, the employee, a police

officer, identified concrete action by his employer that appeared retaliatory: the

denial of permission to obtain firearms instructor training, coercion to resign as

a leader and a member of a S.W.A.T. team, the denial of the ability to work on


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crime prevention programs, removal from the detective bureau, removal of th e

authority to supervise others, and the assignment to demeaning tasks for

someone of his rank. Id. at 435-36. Those steps constituted a prima facie case,

which a jury could conclude demonstrated a pattern of retaliatory conduct. Id.

at 436. Although there was a shift in responsibility, ultimately Russell still had

final approval and decision-making authority over the EOF budget. At no time

was she explicitly told, or had objective cause to believe, that she was being

punished or retaliated.

      Not every action that makes an employee unhappy constitutes an

actionable retaliatory action under CEPA. Id. at 434. That Russell's duties

shifted, although she bore the same responsibility as the ultimate signatory on

the budget submission, may have been the product of the ongoing shortcomings

her employer conveyed to her, including problems with communication, an

inability to work well with colleagues, complete tasks in a timely basis, and

submit materials without error.

      Defendants also argue that even if Russell has made a prima facie case,

they have presented a legitimate, non-retaliatory reason for Russell's

termination: her poor work performance. An employer's burden of proof in

demonstrating a legitimate, non-retaliatory reason for the termination "has been


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described as so light as to be 'little more than a mechanical formality; a

defendant, unless silent, will almost always prevail.'" Mogull v. CB Commer.

Real Estate Grp.,  162 N.J. 449, 469 (2000) (quoting Developments in the Law -

- Employment Discrimination: Shifting Burdens of Proof in Employment

Discrimination Litigation, 
109 Harv. L. Rev. 1579, 1590 (1996)).         Amon's

concerns over Russell's performance, particularly her communication skills,

were extensively and consistently documented throughout Russell's time at

Rutgers and were often echoed by Russell's colleagues. Therefore, defendants

have met their burden.

      After the employer has met its burden, "the plaintiff has an opportunity to

establish that the proffered reason was pretextual, thereby enabling the

employee to 'prove an employer's [unlawful] intent through circumstantial

evidence.'" DePalma v. Bldg. Inspection Underwriters,  350 N.J. Super. 195,

214 (App. Div. 2002) (quoting Bergen Commer. Bank v. Sisler,  157 N.J. 188,

209 (1999)) (alteration in original). "If a plaintiff who has established a prima

facie case can raise enough suspicions that the employer's proffered reasons for

termination were pretextual, the motion for summary judgment should thus be

denied." Greenberg v. Camden Cty. Vocational and Tech. Schs.,  310 N.J. Super.
 189, 200 (App. Div. 1998).


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      An example of circumstantial evidence of pretext includes an indication

in a termination letter that the plaintiff's testimony against the employer in a

lawsuit brought by a former employee caused substantial economic damages to

the employer. See Romano v. Brown & Williamson Tobacco Corp.,  284 N.J.

Super. 543, 552 (App. Div. 1995). Another is the retention of employees who

participated in illegal activity but who did not report the employer's violations,

unlike the plaintiff. See Donofry v. Autotote Sys., Inc.,  350 N.J. Super. 276,

293 (App. Div. 2001).

      Russell's characterization of the reduction of her duties as circumstantial

evidence of a retaliatory intent simply fails. Amon's communications expressing

concern with her performance were more than, as Russell would have it, just a

paper trail justifying her termination.     Defendants' proffered reasons for

terminating Russell were supported by the record—such as her performance

reviews and emails from Amon and others. The documentation defendants

produced supporting Russell's termination were not inherently flawed, and

established that the termination was not pretexted. Thus, we are satisfied there

are no genuine issues of material fact, and that defendants are entitled to

judgment as a matter of law. See R. 4:46-2(c); Brill,  142 N.J. at 540.

      Affirmed.


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