NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2569-17T2
CHERESE BLANKS,
Plaintiff-Appellant,
v.
COMCAST CABLE, JONATHAN BEER, and SEAN PASTICK,
Defendants-Respondents. ______________________________
Argued February 13, 2019 – Decided July 18, 2019
Before Judges Fuentes, Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1539-16.
Deborah Lynn Mains argued the cause for appellant (Costello & Mains, LLC, attorneys; Deborah Lynn Mains, on the brief).
Frank Anthony Chernak argued the cause for respondents (Montgomery Mc Cracken Walker & Rhoads, LLP, attorneys; Frank Anthony Chernak and Erin K. Clarke, on the brief).
PER CURIAM Plaintiff Cherese Blanks appeals from the Law Division's January 5, 2018
order granting defendants Comcast Cable's (Comcast's), Jonathan Beer's, and
Sean Pastick's motion for summary judgment on plaintiff's claims that
defendants violated the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, by terminating plaintiff's employment in retaliation for
her complaints of a co-worker's alleged fraudulent absence and marijuana use,
as well as her complaint that another co-worker assaulted her. Because the
motion court did not find facts and make the requisite conclusions of law in
accordance with Rule 1:7-4(a), we vacate the January 5, 2018 order and remand
for further proceedings consistent with this opinion.
I.
Because we consider the court's order granting summary judgment, we
detail the undisputed facts before the motion court and consider those f acts in
the light most favorable to plaintiff, the party opposing defendants' motion for
summary judgment. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995); R. 4:46-2(c).
Plaintiff became a Comcast employee in 2011. Commencing in
September 2014, plaintiff began receiving numerous disciplinary "Corrective
Action" notices from Comcast regarding her attendance and conduct at work.
A-2569-17T2 2 For example, plaintiff received a "Written Warning" on April 29, 2014, after she
"ha[d] personal and domestic issues with a fellow employee," her second such
incident in the workplace, which was in "direct violation of the Code of Eth ics
and Business Conduct Policy" established by Comcast. Plaintiff's disciplinary
issues culminated in a May 16, 2015 "Final Written Warning," which notified
plaintiff that if her conduct failed to meet Comcast's expectations then "further
corrective action may be taken, up to and including termination." Plaintiff's
"Final Written Warning" remained in effect until November 16, 2015.
On the morning of November 8, 2015, plaintiff's co-worker and friend,
Lisa Ruffin, told plaintiff that a balloon Ruffin had been given by her boyfriend
and that was on her desk had been popped by someone. Several others in the
office told Ruffin their co-worker, Javiyer Spencer, had popped the balloon.
Ruffin and plaintiff confronted Spencer about the balloon, but she denied
popping it. Another co-worker, Kiara Upsher, became involved, raising her
voice and telling Ruffin she did not "have any proof that [Spencer] popped [her]
balloon, and even if she did, why would it matter?" Ruffin told Upsher, "[t]his
isn't about you," and returned to her desk.
Plaintiff believed Ruffin was upset by the encounter and tried to convince
Ruffin to take a break with her. Ruffin rebuffed her, but plaintiff implored
A-2569-17T2 3 Ruffin to get her "fucking cigarettes" and walk outside with plaintiff. Upsher
then approached Ruffin's desk, told Ruffin there was nothing Ruffin could do if
Spencer popped the balloon, and when Ruffin asked Upsher to leave her desk,
Upsher leaned over Ruffin's desk and asked Ruffin what she was going to do
about it. When Ruffin stood up, plaintiff positioned herself between the two
women.
Upsher placed both of her hands on plaintiff's left arm and shoved her to
the side with enough force to cause plaintiff to momentarily lose her balance,
but not fall. Plaintiff told Upsher not to touch her, then repositioned herself
between Upsher and Ruffin and said, "[y]ou two have kids, you're both mothers,
it's not worth it." A co-worker, Cheryl Herbert, stood up and told the women to
"get back to work and to separate." Another co-worker, Christina Davis,
accused plaintiff of "feeding into" the incident.
Plaintiff, Ruffin, and Upsher were then separated. Plaintiff walked
outside, followed by Ruffin, and their supervisors Michael James and Kathy
Vazquez, who asked the two women what had happened. After briefly listening
to their description, Vazquez and James instructed plaintiff and Ruffin to
provide written reports about the incident and then to go home for the remainder
of the day. Upsher was also sent home for the remainder of the day.
A-2569-17T2 4 Plaintiff wrote her report in an email to Barbara Davis, Comcast's Senior
Manager for Fulfillment. In that email plaintiff described the incident, and
opined that Spencer popped Ruffin's balloon in retaliation for Ruffin's prior
report to Davis that Spencer had, on one occasion, clocked into work but left
after "[five] minutes," and that Spencer "smokes drugs in the company parking
lot on company premises[] during work hours." Plaintiff later sent Davis a
follow-up email claiming Upsher "assaulted [plaintiff] by pushing [plaintiff] out
of the way."
On November 9, 2015, the day after the incident, plaintiff submitted a
complaint through Comcast's internal complaint hotline, "Comcast Listens," in
which she reported that Upsher had assaulted her, Spencer smoked marijuana
during work hours in the company parking lot, and that on November 1, 2015,
Spencer reported to work for five minutes, left, and attempted to be paid for an
entire day's work.
Davis notified Jonathan Beer, Comcast's Human Resources Manager, and
Sean Pastick, Comcast's Senior Director of Workforce Operations, about the
November 8, 2015 incident on the date it occurred, and later that evening
summarized the incident in an email. On November 9, 2015, Beer and Pastick
began investigating the incident.
A-2569-17T2 5 Beer and Pastick first interviewed Spencer, who reported that on the
morning of the incident, plaintiff called Spencer a prostitute who "sell[s] [her]
body for money," and said that Spencer was mad because she did not "have a
man." Spencer also reported that, shortly before the balloon incident, plaintiff
"yelled from her desk '[Spencer] do you got something to say, I[']m going on
lunch so we can take this outside.'" Spencer claimed plaintiff and Ruffin
intimidated her, plaintiff called her a "bitch," and that she felt "harassed" by
Ruffin and plaintiff. Spencer also showed Beer a video of the incident that she
had recorded on her phone. 1 Beer testified he thought the recording showed
plaintiff escalated the situation and engaged in inappropriate behavior.
Beer and Pastick also interviewed plaintiff on November 9. Beer and
Pastick questioned plaintiff about the incident and why she believed Upsher
"assaulted" her. They also asked plaintiff why she had failed to previously
disclose her allegation about Spencer's marijuana use, and plaintiff stated she
"felt as though it was not [her] place to say anything at the time" she first learned
of the alleged drug use. Steve Bailey, Comcast's security representative, further
questioned plaintiff about her allegation that Spencer smoked marijuana. Beer
1 Spencer's video did not show the altercation, but served as an audio recording of the incident. A-2569-17T2 6 asked plaintiff why she filed the Comcast Listens complaint, and plaintiff
testified there had been previous complaints about Spencer made to upper
management but she felt "nothing was being done regarding . . . Spencer's
behavior." At the conclusion of their interview, Beer and Pastick informed
plaintiff that she was being placed on administrative leave with pay until they
concluded their investigation.
Two weeks later, Beer and Pastick notified plaintiff that her employment
was terminated. Pastick testified that he and Beer considered plaintiff's role in
the balloon incident, her workplace behavior, and plaintiff's "Final Written
Warning," which was in effect at the time of the incident. Plaintiff's termination
notification specifically noted that she violated Comcast's conduct policy by
being "abusive, rude, discourteous or unprofessional . . . by making malicious
remarks, insults or epithets or engaging in threatening behavior," by
"[d]eliberately interfering with [c]ompany operations," and by "[i]nterfering
with any investigation conducted by Comcast including making untruthful or
deceptive statements." Comcast also terminated Ruffin's and Upsher's
employment. Spencer's employment was later terminated for reasons unrelated
to the November 8 incident.
A-2569-17T2 7 Plaintiff filed a complaint on April 22, 2016, alleging defendants violated
CEPA by terminating plaintiff "for disclosing and objecting to conduct which
she reasonably believed to be unlawful": namely, that Spencer attempted to get
paid for a whole day's work after arriving at work for five minutes, th at Spencer
allegedly smoked marijuana while at work, and that Upsher assaulted plaintiff.
Plaintiff testified she believed her employment was terminated because "[she]
went over [her] manager's head and . . . reported issues that concerned [fellow
co-workers] and that did not sit well with upper management." Following
discovery, defendants moved for summary judgment.
The court heard argument and granted defendants' motion in a decision
from the bench. The court did not identify the undisputed material facts but
concluded plaintiff failed to make out a prima facie CEPA claim. First, the court
concluded that "[t]he report of stealing time . . . hasn't been
demonstrated . . . [h]ow this would amount to the plaintiff . . . having a
reasonable belief that the employer's conduct was violating a law, rule, or a clear
mandate of public policy." Next, the court stated that the "alleged assault and
the November 9[] call to the Comcast Listens line . . . fall within the
category . . . which indicates that you can't attempt to inoculate yourself from
disciplinary action, [by] subsequently making a complaint." The court
A-2569-17T2 8 "guess[ed]" that plaintiff "attempt[ed] to . . . prophylactically raise these issues,
so that if anything is done against her, she can now claim it wasn't done because
[she] made these reports," and that plaintiff's Comcast Listens complaint was "a
clear, blatant attempt to inoculate herself against discipline."
The court found that plaintiff failed to present evidence establishing a
prima facie case under CEPA, and memorialized its decision in a written order.
Plaintiff appealed and makes the following arguments:
I. SUMMARY JUDGMENT STANDARD.
II. WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF, CREDIBILITY ISSUES AND DISPUTED ISSUES OF MATERIAL FACT EXIST WHICH RENDER SUMMARY JUDGMENT INAPPROPRIATE.
A. Sufficient Evidence Exists to Permit a Reasonable Jury to Determine that Plaintiff has Satisfied the First Element of a CEPA Claim.
B. A Reasonable Jury Can Conclude that Plaintiff Engaged In Whistleblowing Conduct.
C. Plaintiff Was Terminated From Employment, thus There is No Dispute that She Suffered an Adverse Job Action.
D. A Reasonable Jury Could Conclude that a Causal Connection Exists Between Plaintiff’s Whistleblowing Activity and the Adverse Employment Action Taken Against Her.
A-2569-17T2 9 II.
Our review of an order granting a party's motion for summary judgment
"is premised on the same standard that governs the motion judge's
determination." RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 471
(2018). That is, we view the evidence in the light most favorable to the non -
moving party to determine whether there exist genuine disputes of material fact.
Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018); see
also Brill, 142 N.J. at 540.
CEPA provides, in pertinent part, that "[a]n employer shall not take any
retaliatory action against an employee because the employee," N.J.S.A. 34:19-
3, "[o]bjects to, or refuses to participate in any activity, policy or practice which
the employee reasonably believes:"
(1) [I]s in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer,
A-2569-17T2 10 employee, former employee, retiree or pensioner of the employer or any governmental entity; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
[N.J.S.A. 34:19-3(c).]
"Under the test set forth in McDonnell Douglas Corp. v. Green, [411 U.S.
792, (1973)], that [our Supreme Court] adopted in Grigoletti v. Ortho Pharm.
Corp., 118 N.J. 89, 97 (1990), the [plaintiff] carries the initial burden of
establishing a prima facie case of retaliation." Winters v. N. Hudson Reg'l Fire
& Rescue, 212 N.J. 67, 90 (2012). If the plaintiff carries his or her burden, the
burden shifts to the defendant employer to "come forward and advance a
legitimate reason for discharging [the] plaintiff." Zappasodi v. State, Dept. of
Corr., Riverfront State Prison, 335 N.J. Super. 83, 89 (2000). If the defendant
carries its burden, the burden shifts back to the plaintiff to "raise a genuine issue
of material fact regarding whether the employer's proffered explanation is
pretextual or whether, the 'retaliatory discrimination was more likely than not a
determinative factor in the decision.'" Kolb v. Burns, 320 N.J. Super. 467, 479
(App. Div. 1999) (quoting Bowles v. City of Camden, 993 F. Supp. 255, 262
(D.N.J. 1998)).
A-2569-17T2 11 To establish a prima facie CEPA claim under N.J.S.A. 34:19-3(c)(1) or
(3), a plaintiff must prove:
(1) [H]e 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); (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.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
In this case, the parties do not dispute that plaintiff performed a "whistle -
blowing" activity or that she suffered an adverse employment action. Ibid.
Therefore, we limit our discussion to the first and fourth prongs in our analysis
of the court's disposition of defendant's summary judgment motion.
To satisfy the first prong of a prima facie case, a plaintiff "must identify
a statute, regulation, rule, or public policy that closely relates to the complained-
of conduct." Turner v. Associated Humane Soc'ys, Inc., 396 N.J. Super. 582,
593 (App. Div. 2007) (quoting Dzwonar, 177 N.J. at 462). A plaintiff need not
show the employer's or another employee's conduct "actually violated the law
or a clear mandate of public policy," ibid. (quoting Dzwonar, 177 N.J. at 462),
but only that "he or she 'reasonably believes' that to be the case," Dzwonar, 177
A-2569-17T2 12 N.J. at 462 (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000)).
Where a defendant moves for "the trial court [to] determine as a matter of law
that a plaintiff's belief was not objectively reasonable, the trial court must make
a threshold determination that there is a substantial nexus between the
complained-of conduct and a law or public policy identified by the court or the
plaintiff." Id. at 464. If the court, in deciding the motion, finds that such a
nexus exists, "the jury then must determine whether the plaintiff actually held
such a belief and, if so, whether the belief was objectively reasonable." Ibid.
The fourth prong requires a plaintiff to show a causal connection,
Dzwonar, 177 N.J. at 462, or in other words, a "factual nexus between their
protected activity under CEPA and the alleged retaliatory conduct," Hancock v.
Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002). To meet this
prong, a plaintiff is required to demonstrate "evidence of circumstances that
justify an inference of retaliatory motive." Romano v. Brown & Williamson
Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995); see also Maimone
v. City of Atl. City, 188 N.J. 221, 237 (2006) (noting this prong "can be satisfied
by inferences that the trier of fact may reasonably draw based on circumstances
surrounding the employment action"). Evidence of such circumstances may
include "[t]he temporal proximity of employee conduct protected by CEPA and
A-2569-17T2 13 an adverse employment action," Maimone, 188 N.J. at 237, but temporal
proximity, "standing alone, is insufficient to establish causation," Hancock, 347
N.J. Super. at 361.
Rule 1:7-4(a) requires a motion court to "find the facts and state its
conclusions of law thereon . . . on every motion decided by a written order that
is appealable as of right." R. 1:7-4(a). "Naked conclusions do not satisfy the
purpose of Rule 1:7-4(a)"; a court's fact findings must be correlated "with the
relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980).
Here, the motion court did not find facts and make conclusions of law as
to the first and fourth prongs of a prima facie case under CEPA "as mandated
by Rule 1:7-4(a)." Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301
(App. Div. 2018). Instead, without any "analysis or citation to even a single
case," Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (2000),
the court determined plaintiff could not have a reasonable belief that Spencer
"stealing time . . . violat[ed] a law, rule, or a clear mandate of public policy,"
and that plaintiff's complaints that Spencer smoked marijuana and that Upsher
assaulted her were "clear, blatant attempt[s] to [inoculate] herself against
discipline," cf. Dzwonar, 177 N.J. at 464 (holding that if the trial court
determines a "substantial nexus between the complained-of conduct and a law
A-2569-17T2 14 or public policy identified by the court or the plaintiff," whether a plaintiff's
belief that a violation of same occurred was reasonable becomes a question for
a fact finder). To the extent the court's limited determinations might be
considered findings of fact, they could not properly support a grant of summary
judgment because they constituted findings as to disputed facts. See Brill, 142
N.J. at 540 ("The 'judge's function is not himself [or herself] to weigh the
evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.'" (alteration in original) (quoting Anderson v. Liberty
Lobby, 477 U.S. 242, 249 (1986))).
Moreover, the court's findings were impermissibly based on credibility
determinations. The court's decision was founded, at least in part, by a finding
expressly based on its "guess" that plaintiff "prophylactically raise[d] these
issues, so that if anything [was] done against her, she can now claim it wasn't
done because of what [she was] alleged to have done." See, e.g., Akhtar v. JDN
Props. at Florham Park, LLC, 439 N.J. Super. 391, 399 (App. Div. 2015) ("Any
issues of credibility must be left to the finder of fact."). Thus, the court's grant
of summary judgment erroneously rested on its conclusion that plaintiff's reports
to Comcast about the actions of her co-employees were unreasonable due to
plaintiff's purported motivations. See In re Estate of DeFrank, 433 N.J. Super.
A-2569-17T2 15 258, 266 (2013) ("It is ordinarily improper to grant summary judgment when a
party's state of mind, intent, motive or credibility is in issue.").
We vacate the court's order and remand for a rehearing on defendants'
motion for summary judgment because the court did not make findings as to the
undisputed facts supporting defendant's motion as required by Rule 1:7-4(a) or
analyze the facts under the legal standard applicable to a determination of the
validity of a CEPA claim. 2 We acknowledge the court's vague reference to
plaintiff's obligation to present evidence establishing a prima facie case under
CEPA, but the court's limited findings do not address any of the legal elements
of a prima facie case. See Dzwonar, 177 N.J. at 462. Nor did the court address
defendants' argument that they are entitled to summary judgment because
plaintiff failed to present evidence establishing the legitimate non-retaliatory
reasons defendants articulated for terminating plaintiff's employment are
pretextual. See Kolb, 320 N.J. Super. at 479.
2 Our decision to vacate the court's order is founded solely on the motion court's failure to make the requisite findings under Rule 1:7-4(a) and because the limited findings the court made are erroneous because they are based on credibility determinations and resolved disputed issues of fact. We do not express any opinion on the merits of plaintiff's CEPA claim or defendants' summary judgment motion. A-2569-17T2 16 "Although our standard of review from the grant of a motion for summary
judgment is de novo, our function as an appellate court is to review the decision
of the trial court, not to decide the motion tabula rasa." Estate of Doerfler, 454
N.J. Super. at 301-02 (internal citations omitted). Because the motion court
made credibility determinations, on remand the matter shall be assigned to a
different judge. R.L. v. Voytec, 199 N.J. 285, 306 (2009).
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
A-2569-17T2 17