NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0884-17T2
DENISE BRODO,
Plaintiff-Appellant,
v.
TOWNSHIP OF HADDON and HADDON TOWNSHIP POLICE DEPARTMENT,
Defendants-Respondents. ___________________________
Submitted April 9, 2019 – Decided May 9, 2019
Before Judges Suter and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1517-16.
Castellani Law Firm, LLC, attorneys for appellant (David R. Castellani, on the brief).
Wade, Long, Wood & Long, LLC, and Platt & Riso, PC, attorneys for respondents (Daniel H. Long and Eric J. Riso, on the brief).
PER CURIAM Denise Brodo appeals an order that limited the scope of discovery in her
litigation against defendants Haddon Township and Haddon Township Police
Department, and an order that granted summary judgment to defendants,
dismissing her complaint. We reverse the orders, and reinstate the complaint to
permit discovery.
I
Defendants terminated plaintiff's employment as a communication
specialist and class II officer in October 2015 because she was six minutes late
for work on September 6, 2015 and seven minutes late on September 30, 2015.
She had been employed for seventeen years. Plaintiff claimed that "similarly
situated co-workers who arrived late [for] work were not subjected to the same
discipline or terminated as a result of arriving late." She sued defendants in
April 2016, requesting damages for violation of the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, or in the alternative, under
Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). 1 She requested equitable relief,
including reinstatement with back and front pay (the 2016 complaint).
1 Under Pierce, the Supreme Court recognized "that an [at-will] employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Id. at 72. A-0884-17T2 2 Defendants' filed a motion to dismiss under Rule 4:6-2(e), arguing the
case was barred by plaintiff's settlement of another CEPA case that she filed in
2013 (the 2013 complaint). In the 2013 complaint, plaintiff alleged she was
responsible to prepare payroll for defendant Township. She claimed she
reported that an officer on the force tried to obtain payment twice for the same
work. Plaintiff alleged that defendants retaliated against her by reducing her job
responsibilities, by not giving her certain work assignments and by suspending
her for reporting late to work. In July 2015, plaintiff and defendants signed a
Settlement Agreement and General Release (Agreement) that resolved the 2013
complaint.
The 2016 complaint claimed that plaintiff's termination from employment
for lateness was based on events after the Agreement was signed, and that this
was new retaliation for the same whistleblowing conduct she alleged in the 2013
complaint. The first thirty-eight paragraphs of the 2016 complaint were very
similar to the 2013 complaint.
Rather than dismissing the 2016 complaint based on the Agreement as
defendants requested, the court denied the motion without prejudice. It limited
discovery to two issues: defendant Township's policies and procedures on
A-0884-17T2 3 lateness and whether plaintiff actually was late on the dates claimed by
defendants.
A year later, plaintiff's attorney filed a motion to be relieved as counsel.
She certified that plaintiff "terminated the services of the law firm and instructed
[them] to cease all work in this matter" but that plaintiff "declined" to execute a
substitution of attorney. While that motion was pending, defendants filed a
motion for summary judgment to dismiss the 2016 complaint based on the
Agreement. Plaintiff's counsel requested a thirty-day adjournment of the
summary judgment motion so that plaintiff could retain new counsel, noting that
defendants' motion "was clearly intended to take advantage of the fact that
plaintiff had not yet retained new counsel and [her] firm [could not] ethically
take action in this litigation." The court denied the requested adjournment,
stating, "[t]he answer is that [the] motion [to be relieved] is pending until I
decide this motion."2
The court granted the unopposed motion for summary judgment on
September 15, 2017, dismissing the 2016 complaint with prejudice. The court
noted the "deposition testimony establish[ed] that the plaintiff was late on [the
2 The transcript indicates the motion to be relieved as counsel was pending before another judge. The record does not include a copy of that order. A-0884-17T2 4 two dates in question]" and that "[u]nder [the discovery judge's] prior ruling,
that issue on which there is no factual dispute is dispositive on this case since
that establishes per that prior ruling that the plaintiff was, in fact, late, [and] that
termination . . . was permitted by the Township's policies."
On appeal, plaintiff argues that the court abused its discretion by limiting
discovery and by denying her request to adjourn the summary judgment motion
to allow her to obtain new counsel. She argues that summary judgment motion
should not have been granted—not only because discovery was incomplete—
but because she should have been able to conduct discovery about whether she
was being retaliated against based on her prior alleged whistleblowing activity.
II
Where the underlying issue involves a discovery dispute, our review is limited
to determining whether the trial court abused its discretion. Pomerantz Paper Corp.
v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Bender v. Adelson, 187 N.J.
411, 428 (2006)). Ordinarily, "we decline to interfere with discretionary rulings
involving discovery unless it appears that an injustice has been done." Cunningham
v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "An abuse of discretion
'arises when a decision is made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis. '"
A-0884-17T2 5 Castello v. Wohler, 446 N.J. Super. 1, 24 (App. Div. 2016) (quoting Flagg v.
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
To prove a prima facie claim under CEPA, a plaintiff must show: "(1)
[she] reasonably believed defendants were violating a law, rule, or public policy;
(2) that [she] performed a whistleblowing activity; (3) that an adverse
employment action was taken against [her]; and (4) that a causal relationship
exist[ed] between the whistleblowing activity and the adverse employment
action." Puglia v. Elk Pipeline, Inc., 226 N.J. 258, 280 (2016). A defendant can
rebut a prima facie claim by providing a "legitimate non-retaliatory reason for
the adverse action." Royster v. N.J. State Police, 439 N.J. Super. 554, 575 (App.
Div. 2015) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super.
436, 447 (App. Div. 1990)). "The plaintiff is then 'afforded a fair opportunity'
to show that the reason given 'is a pretext for the retaliation or that a
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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-0884-17T2
DENISE BRODO,
Plaintiff-Appellant,
v.
TOWNSHIP OF HADDON and HADDON TOWNSHIP POLICE DEPARTMENT,
Defendants-Respondents. ___________________________
Submitted April 9, 2019 – Decided May 9, 2019
Before Judges Suter and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1517-16.
Castellani Law Firm, LLC, attorneys for appellant (David R. Castellani, on the brief).
Wade, Long, Wood & Long, LLC, and Platt & Riso, PC, attorneys for respondents (Daniel H. Long and Eric J. Riso, on the brief).
PER CURIAM Denise Brodo appeals an order that limited the scope of discovery in her
litigation against defendants Haddon Township and Haddon Township Police
Department, and an order that granted summary judgment to defendants,
dismissing her complaint. We reverse the orders, and reinstate the complaint to
permit discovery.
I
Defendants terminated plaintiff's employment as a communication
specialist and class II officer in October 2015 because she was six minutes late
for work on September 6, 2015 and seven minutes late on September 30, 2015.
She had been employed for seventeen years. Plaintiff claimed that "similarly
situated co-workers who arrived late [for] work were not subjected to the same
discipline or terminated as a result of arriving late." She sued defendants in
April 2016, requesting damages for violation of the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, or in the alternative, under
Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). 1 She requested equitable relief,
including reinstatement with back and front pay (the 2016 complaint).
1 Under Pierce, the Supreme Court recognized "that an [at-will] employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Id. at 72. A-0884-17T2 2 Defendants' filed a motion to dismiss under Rule 4:6-2(e), arguing the
case was barred by plaintiff's settlement of another CEPA case that she filed in
2013 (the 2013 complaint). In the 2013 complaint, plaintiff alleged she was
responsible to prepare payroll for defendant Township. She claimed she
reported that an officer on the force tried to obtain payment twice for the same
work. Plaintiff alleged that defendants retaliated against her by reducing her job
responsibilities, by not giving her certain work assignments and by suspending
her for reporting late to work. In July 2015, plaintiff and defendants signed a
Settlement Agreement and General Release (Agreement) that resolved the 2013
complaint.
The 2016 complaint claimed that plaintiff's termination from employment
for lateness was based on events after the Agreement was signed, and that this
was new retaliation for the same whistleblowing conduct she alleged in the 2013
complaint. The first thirty-eight paragraphs of the 2016 complaint were very
similar to the 2013 complaint.
Rather than dismissing the 2016 complaint based on the Agreement as
defendants requested, the court denied the motion without prejudice. It limited
discovery to two issues: defendant Township's policies and procedures on
A-0884-17T2 3 lateness and whether plaintiff actually was late on the dates claimed by
defendants.
A year later, plaintiff's attorney filed a motion to be relieved as counsel.
She certified that plaintiff "terminated the services of the law firm and instructed
[them] to cease all work in this matter" but that plaintiff "declined" to execute a
substitution of attorney. While that motion was pending, defendants filed a
motion for summary judgment to dismiss the 2016 complaint based on the
Agreement. Plaintiff's counsel requested a thirty-day adjournment of the
summary judgment motion so that plaintiff could retain new counsel, noting that
defendants' motion "was clearly intended to take advantage of the fact that
plaintiff had not yet retained new counsel and [her] firm [could not] ethically
take action in this litigation." The court denied the requested adjournment,
stating, "[t]he answer is that [the] motion [to be relieved] is pending until I
decide this motion."2
The court granted the unopposed motion for summary judgment on
September 15, 2017, dismissing the 2016 complaint with prejudice. The court
noted the "deposition testimony establish[ed] that the plaintiff was late on [the
2 The transcript indicates the motion to be relieved as counsel was pending before another judge. The record does not include a copy of that order. A-0884-17T2 4 two dates in question]" and that "[u]nder [the discovery judge's] prior ruling,
that issue on which there is no factual dispute is dispositive on this case since
that establishes per that prior ruling that the plaintiff was, in fact, late, [and] that
termination . . . was permitted by the Township's policies."
On appeal, plaintiff argues that the court abused its discretion by limiting
discovery and by denying her request to adjourn the summary judgment motion
to allow her to obtain new counsel. She argues that summary judgment motion
should not have been granted—not only because discovery was incomplete—
but because she should have been able to conduct discovery about whether she
was being retaliated against based on her prior alleged whistleblowing activity.
II
Where the underlying issue involves a discovery dispute, our review is limited
to determining whether the trial court abused its discretion. Pomerantz Paper Corp.
v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Bender v. Adelson, 187 N.J.
411, 428 (2006)). Ordinarily, "we decline to interfere with discretionary rulings
involving discovery unless it appears that an injustice has been done." Cunningham
v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "An abuse of discretion
'arises when a decision is made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis. '"
A-0884-17T2 5 Castello v. Wohler, 446 N.J. Super. 1, 24 (App. Div. 2016) (quoting Flagg v.
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
To prove a prima facie claim under CEPA, a plaintiff must show: "(1)
[she] reasonably believed defendants were violating a law, rule, or public policy;
(2) that [she] performed a whistleblowing activity; (3) that an adverse
employment action was taken against [her]; and (4) that a causal relationship
exist[ed] between the whistleblowing activity and the adverse employment
action." Puglia v. Elk Pipeline, Inc., 226 N.J. 258, 280 (2016). A defendant can
rebut a prima facie claim by providing a "legitimate non-retaliatory reason for
the adverse action." Royster v. N.J. State Police, 439 N.J. Super. 554, 575 (App.
Div. 2015) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super.
436, 447 (App. Div. 1990)). "The plaintiff is then 'afforded a fair opportunity'
to show that the reason given 'is a pretext for the retaliation or that a
discriminatory reason more likely motivated the employer.'" Id. at 575-76
(quoting Jamison, 242 N.J. Super. at 447).
Under CEPA, even if an employer can prove that its employment action
had a basis, an employee may still prevail based on a mixed motive CEPA
retaliation claim. Puglia, 226 N.J. at 282. The Court in Puglia cited the CEPA
model jury charge, which made clear that an employer can be motivated by
A-0884-17T2 6 "retaliatory and non-retaliatory motives." Id. at 283 (citing Model Jury Charges
(Civil), 2.32 "New Jersey Conscientious Employee Protection Act" (2014)). A
plaintiff in a CEPA case "need 'only prove that retaliation played a role in the
decision and that it made an actual difference in defendant's decision.'" Ibid.
The trial court's discovery order did not permit plaintiff to explore whether
defendants' motive in terminating her employment was mixed, meaning whether
retaliation played a role and whether it made an actual difference.
Defendants argued that plaintiff's waiver in the Agreement precluded the
2016 litigation. They argued that plaintiff could not prove a new CEPA claim
because to do so she would have to show "she was being retaliated [against] for
events that occurred prior to the settlement of the first lawsuit." Defendants
argued that plaintiff waived any new claims of retaliation because all of it related
to the prior acts that she released in the Agreement.
Under the Agreement, plaintiff
waive[d], release[d] and [gave] up any and all claims . . . she may have against all defendants . . . based upon any act, event or omission occurring before the execution of the Agreement, including, but not limited to, any events related to, arising from, or in connection with plaintiff's employment . . . with defendants.
She expressly gave up "any and all claims arising from or relating to plaintiff's
employment, and/or association with the defendants based upon any act, event
A-0884-17T2 7 or omission occurring before the date of execution of this settlement agreement
. . . ."
Without making any reference to language in the Agreement, the court
found that it resulted in a "clean slate" for the parties. The court said it was "not
waiving future claims" but rather, "[e]verybody starts off with a clean slate [after
the Agreement] and she was late twice in September [2015], so she was
terminated." The court acknowledged that her employer did not "have the right
to retaliate" although it did "ha[ve] the right, like any other employer, to
terminate her if she's late." Therefore, the court limited discovery to whether
she was late on the two dates in question and whether defendant Township had
"policies and procedures relative to progressive discipline on the issue of timely
arrival to work."
"A settlement agreement between parties to a lawsuit is a contract." Nolan
v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Pascarella v. Bruck, 190 N.J. Super.
118, 124 (App. Div. 1983)). "It is well-settled that '[c]ourts enforce contracts
"based on the intent of the parties, the express terms of the contract, surrounding
circumstances and the underlying purpose of the contract."'" In re Cty. of Atl.,
230 N.J. 237, 254 (2017) (alteration in original) (quoting Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)). "A reviewing court must
A-0884-17T2 8 consider contractual language 'in the context of the circumstances' at the time of
drafting . . . ." Ibid. (quoting Sachau v. Sachau, 206 N.J. 1, 5-6 (2011)). Courts
"should give contractual terms 'their plain and ordinary meaning,' unless
specialized language is used peculiar to a particular trade, profession, or
industry." Kieffer v. Best Buy, 205 N.J. 213, 223 (2009) (citations omitted).
Limiting discovery at this stage of the litigation was a misapplication of
discretion. The court did not consider the intent of the parties, the express terms
of the Agreement, surrounding circumstances or the underlying purpose of the
contract before it determined that the Agreement did not permit a cause of action
under CEPA or Pierce for new claims of retaliation that occurred after the
Agreement was signed. Discovery was not permitted on these issues because
the court determined the Agreement created a "clean slate" and then limited the
parties to explore whether plaintiff was late and whether defendant Township
had policies and procedures about lateness. 3
Arguably, the scope of the Agreement might not extend to new acts of
retaliation against plaintiff; it extend[ed] to "acts, events or omissions" that
3 The clean slate apparently did not extend to plaintiff. Her termination from employment was based on progressive discipline that included instances of lateness, which occurred before the Agreement was signed and that plaintiff claimed, in the 2013 complaint, were examples of retaliation for whistleblowing. A-0884-17T2 9 occurred before the settlement. Even the language in the Agreement "arising
from" is preceded by the phrase "before the execution of this [A]greement" and
that "includes" events "arising from" her employment. We take no position on
the proper construction of the Agreement except to say that the court 's order
precluded discovery about it and that it also did not make appropriate findings
and conclusions of law for our review. See R. 1:7-4(a).
The court granted defendants' unopposed motion for summary judgment
and dismissed the 2016 complaint, finding there was no issue of fact that the
plaintiff was late on two occasions. The problem was that discovery was not
complete because it was limited by the court's order. It was error to grant
summary judgment when discovery was not complete. Velantzas v. Colgate-
Palmolive Co., 109 N.J. 189, 193 (1988) (providing "it is especially
inappropriate to grant summary judgment when discovery is incomplete"); see
also Driscoll Constr. Co. v. State, 371 N.J. Super. 304, 318 (App. Div. 2004).
Plaintiff should have had the opportunity to undertake further discovery that
may have raised a "genuine issue [of] material fact." R. 4:46-2(c); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Such additional
discovery is particularly important before granting summary judgment when a
party's state of mind is at issue.
A-0884-17T2 10 The court also misapplied its discretion by not adjourning the summary
judgment motion so that plaintiff could retain new counsel. We review a court 's
decision denying an application for an adjournment for abuse of discretion.
Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 574 (2003). In deciding
whether to reverse the trial court's decision, we consider all relevant factors,
including the length of the delay, whether similar requests had previously been
made and granted, the inconvenience to other parties and the court, whether
denying the application would result in prejudice to the party seeking the
adjournment, and the complexity of the case. State v. Hayes, 205 N.J. 522, 538
(2011).
In this case, the requested adjournment was thirty days, and the record did
not show that there were earlier requests to adjourn. Defendants did not say how
they would be prejudiced, but plaintiff clearly was prejudiced by the dismissal
of her case "with prejudice" while her attorney could not affirmatively take a
position on the motion. There would have been no prejudice in adjourning the
motion for a limited period to give plaintiff the ability to retain new counsel.
Reversed and remanded. The complaint is reinstated. We do not retain
jurisdiction.
A-0884-17T2 11