Robert Montgomery v. Atlantic City Electric Company

• Court: New Jersey Superior Court Appellate Division
• Decided: January 13, 2026
• Docket: A-1241-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1241-24

ROBERT MONTGOMERY,

Plaintiff-Appellant,

v.

ATLANTIC CITY ELECTRIC COMPANY, PEPCO HOLDINGS, LLC, and EXELON CORPORATION,

Defendants-Respondents. _____________________________

Submitted December 16, 2025 – Decided January 13, 2026

Before Judges Perez Friscia and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0268-22.

Jacobs & Barbone, PA, attorneys for appellant (David A. Castaldi, on the briefs).

Montgomery McCracken Walker & Rhoads, LLP, attorneys for respondents (William K. Kennedy and Alexandra S. Jacobs, on the brief).

PER CURIAM Plaintiff Robert Montgomery appeals from a November 22, 2024 order

granting summary judgment in favor of defendants Atlantic City Electric

Company (ACE), Pepco Holdings, LLC (PHI), and Exelon Corporation (Exelon)

dismissing his New Jersey Conscientious Employee Protection Act (CEPA),

N.J.S.A. 34:19-1 to -14, and defamation claims against them. Having reviewed

the record and applicable law, we affirm substantially for the reasons set forth

in Judge Jean S. Chetney's thorough and well-reasoned oral opinion.

I.

We summarize the facts in the record viewed in the light most favorable

to plaintiff, the non-moving party. See Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995). ACE is a public utility company. ACE's parent

company, PHI, is a subsidiary of Exelon. Beginning on June 19, 2017, plaintiff

worked for defendants as a frontline supervisor.1 As a frontline supervisor,

plaintiff oversaw a group of employees who were dispatched to address

emergent issues, such as outages.

From June 2017 until February 2019, plaintiff worked in ACE's Cape May

Courthouse location. In February 2019, plaintiff was transferred to the

1 Plaintiff refers to defendants collectively as his employer. Defendants contend plaintiff was employed by ACE. We accept plaintiff's contention as the non- moving party. This distinction, however, is not relevant to the issues raised on appeal. A-1241-24 2 Bridgeton location "where he oversaw the overhead department and the trouble

department[] and was [the] acting manager of the location." Les Jones was one

of the employees plaintiff supervised at both locations.

On July 27, 2021, Jones worked overnight on emergency calls. In the

early morning hours of July 28, he accepted an emergency dispatch call prior to

his next shift that was scheduled to begin at 7:00 a.m. He arrived at the job site

at approximately 12:06 a.m. and was told he was not needed. Jones remained

on the clock and parked his truck. At approximately 7:00 a.m., plaintiff checked

ACE's fleet management system and discovered Jones's truck had not moved for

three to four hours.

Plaintiff reported the situation to his district manager, Barry Downes, who

told plaintiff to go to the location and "take a look." When plaintiff arrived at

approximately 8:10 a.m., he found Jones asleep in the truck. The truck was

running, Jones was fully reclined with a pillow behind his head, and there was

a jacket covering the dashboard lights. Plaintiff woke Jones and told him to

return to the ACE building. Plaintiff reported the incident to Downes. Plaintiff

and Downes then met with Jones and two union representatives to discuss the

matter.

On July 29, 2021, Jones filed an ethics complaint against plaintiff alleging

he was "discriminating against Jones and had been singling Jones out since

A-1241-24 3 2019." He claimed plaintiff was "always looking for the things that [Jones]

[wa]s doing wrong. [Jones] [wa]s the only African American . . . man in the

overhead trouble department, and [plaintiff] who is Caucasian, [wa]s making it

very hard for [Jones] to work." Jones testified at his deposition that he "was

upset about [plaintiff] reporting him for sleeping in his truck" when he made the

complaint and had never complained about plaintiff previously.

On August 12, 2021, there was a "consensus call" amongst Jones's

supervisors, including plaintiff and Downes, and representatives of defendants'

human resources department to discuss the July 28 incident. Plaintiff "did not

make any recommendation as to discipline nor did he determine which

[e]mployee [s]tandards of [c]onduct Jones violated." Defendants determined

Jones violated the employee standards of conduct by neglecting his job duties,

sleeping during work time, making unauthorized stops, and falsifying company

time sheets. He was suspended without pay for five days.

On August 13, 2021, Jones added an update to his July 29 ethics

complaint, contending:

[Plaintiff] has kept discriminating against [Jones]. [Plaintiff] has kept checking [Jones's] records [i]n order to find fault at [Jones]. There are other African- [American] employees (names and job titles withheld) who have been disrespected by [plaintiff]. Cindy (last name unknown), time keeper, [T.M.], work lead, and

A-1241-24 4 [T.F.], lineman, have witnessed [plaintiff's] discrimination.

Defendants assigned Stacey Jackson to investigate Jones's ethics

complaint. Jackson conducted a six-month investigation, during which she

interviewed Jones, plaintiff, and nine other current and former employees.

Jackson summarized the findings of her investigation and her conclusions in a

thirty-seven-page investigation report dated January 10, 2022.

Jackson found plaintiff "violated Exelon's Code of Business Conduct by

engaging in behavior that makes non-white employees feel disrespected and

excluded, as well as by withholding coaching and support from various non-

white employees." She determined plaintiff violated two provisions of Exelon's

Corporation Code of Business Conduct–"Living Diversity and Inclusion" and

"Promoting a Respectful Workplace," and Exelon's Human Resources "Policy

Against Discrimination, Harassment, and Retaliation."

Jackson was "mindful that Jones'[s] ethics complaint closely followed

[plaintiff] disciplining him for sleeping in his truck. Such would give Jones a

motive to make a claim of impropriety against [plaintiff]." However, she noted

"two things can be true at once; Jones could have been motivated to make this

claim because he was disciplined[,] and [plaintiff] could be treating non-white

employees in an improper fashion as alleged at the same time." On February

A-1241-24 5 14, 2022, plaintiff's "employment with [ACE]" was terminated based on alleged

"violations of Employee Standards of Conduct, Exelon Code of Business

Conduct, and Company policy, which independently or in combination

warrant[ed] termination."

On February 15, 2022, PHI executives sent a letter by email to employees

of PHI and ACE titled, "Reaffirming Our Values and Culture of Respect" (the

Letter). The Letter stated:

We recently completed an investigation into acts by our own employees that were counter to the inclusive culture we value and are working to sustain. These acts included inequitable treatment of team members[,] and using language and engaging in behaviors that created an uncomfortable and unwelcome workplace environment. Under our policies, these behaviors were terminable offenses at PHI and Exelon.2

On May 16, 2022, plaintiff filed his complaint in this matter alleging

causes of action for violations of CEPA and defamation. On August 29, 2022,

the court granted defendants' motion to dismiss the CEPA claim for failure to

state a claim pursuant to Rule 4:6-2(e). We reversed that order and remanded

2 One of the authors of the letter, Tamla Oliver, testified at her deposition that the Letter was sent in connection with a disciplinary matter unrelated to plaintiff involving an employee identified as J.D. As did the trial judge, we will accept plaintiff's allegation that the Letter referred to him. A-1241-24 6 the matter for discovery. Montgomery v. Atl. City Elec. Co., No. A-0519-22

(App. Div. Mar. 10, 2023).

II.

After the completion of discovery, defendants moved for summary

judgment. On November 22, 2024, following oral argument, Judge Chetney

entered an order granting defendants' motion supported by an oral opinion. She

dismissed plaintiff's CEPA claim because he did "not provide[] sufficient

evidence to rise to the level of a disputed material fact that there was a causal

connection between his report of . . . Jones and [his] termination."

The judge noted plaintiff's claim that defendants "retaliate[d] against

[him] for reporting a fellow employee who was . . . essentially defrauding the

company" did not "make any sense." She found there was "no evidence that the

termination of [plaintiff] was in retaliation for something," nor was there "even

an allegation that [plaintiff] made a report against . . . any of the defendants that

would cause them to be angry, or upset, or have a motive to terminate."

The judge "considered that the report by [plaintiff] of . . . Jones resulted

in . . . Jones making a report to the defendants about [plaintiff]," but "[i]t

was . . . Jones [who] made the report." She found "[t]here[ is] no evidence that

the defendants . . . instituted, or even encouraged, or requested any information

about [plaintiff] in an attempt to retaliate against him." The judge determined

A-1241-24 7 "it was . . . Jones who" instigated the investigation of plaintiff and Jones "was

angry at [plaintiff] for reporting him . . . but . . . Jones is separate and distinct

from the defendants."

The judge also "considered plaintiff's arguments that there [we]re various

deficiencies in the defendant[s'] investigation report" but did not "find that those

are material issues of fact in dispute." She concluded, "even if the[re] were

deficiencies in the investigation, there[ is] still a lack of evidence that would

connect the termination to the whistle-blowing activity."

The judge dismissed plaintiff's defamation claim because "there [was]

insufficient evidence that any of the statements" in the Letter "even if they

[were] made about . . . plaintiff, are false." She noted "there[ is] no dispute

that . . . defendants conducted an investigation and they made various findings"

and the Letter "states that the defendants completed an investigation into acts by

employees that were counter to inclusive culture." The judge determined it was

"just a true statement, it[ was] not anything defamatory."

The judge found the remainder of the Letter contains "a statement . . . by

the defendants about what [they] found, and th[e] different matters that were

investigated." The Letter "goes on to say that under the policies these behaviors

were terminable offenses." The judge determined "again, this is a true statement,

the behaviors, if they occurred, were terminable offenses, and in fact resulted in

A-1241-24 8 the termination of . . . plaintiff." The judge concluded plaintiff offered

"insufficient evidence of any untrue statement" in the Letter, and there was

"insufficient evidence upon which a jury could find that the defendants . . . are

liable for defamation." This appeal followed.

On appeal, plaintiff argues the judge incorrectly determined there was

insufficient evidence of a causal connection between plaintiff's whistle-blowing

activity and his termination. He contends the judge "fail[ed] to appreciate the

nuanced context of a Fortune 500 company." Specifically, that "Jones, who

clearly was motivated by retaliation" was "not 'separate and distinct' from

[d]efendants" when he "fed the investigator witnesses of his choosing." He

contends "Jones effectively used the employer as an agent of retaliation against

[plaintiff] and [d]efendants participated in the retaliation against [him]." He

argues "one can draw a through line from [plaintiff's] reporting of . . . Jones to

[d]efendants' decision to terminate [him]."

Plaintiff also contends the judge improperly dismissed his defamation

claim. He argues that "[w]hether [he] engaged in acts of inequitable treatment"

was disputed and the Letter "essentially stated that [he] engaged in acts of

inequitable treatment and was fired because of it."

A-1241-24 9 III.

Our review of a trial court's grant or denial of a motion for summary

judgment is de novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Like the trial

court, we consider "whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill, 142 N.J. at 540.

"By its plain language, Rule 4:46-2 dictates that a court should deny a

summary judgment motion only where [a] party opposing the motion has come

forward with evidence that creates a 'genuine issue as to any material fact

challenged.'" Id. at 529 (emphasis omitted). Insubstantial arguments based on

assumptions or speculation are not enough to overcome a motion for summary

judgment. Ibid.

A.

Based on our de novo review, we are convinced the judge correctly

dismissed plaintiff's CEPA claim because he failed to offer any competent

evidence establishing a causal connection between his report of the incident

involving Jones on July 28, 2021, and his termination. CEPA provides, in

relevant part, an employer is prohibited from taking retaliatory action against an

employee who:

A-1241-24 10 a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or

(2) is fraudulent or criminal . . . ;

[N.J.S.A. 34:19-3(a).]

In Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003), our Supreme Court

explained that in order to prevail on a CEPA claim, a plaintiff must demonstrate:

(1) [they] reasonably believed that [their] employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) [they] performed a 'whistle-blowing' activity described in N.J.S.A. 34:19-3[(c)]; (3) an adverse employment action was taken against [them]; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action.

A plaintiff can show a causal connection exists between the

whistleblowing activity and the adverse employment action through "inferences

that the trier of fact may reasonably draw based on circumstances surrounding

the employment action." Maimone v. City of Atlantic City, 188 N.J. 221, 237

(2006). "The temporal proximity of employee conduct protected by CEPA and

[the] adverse employment action is one circumstance that may support an

inference of a causal connection." Ibid.

A-1241-24 11 Based on our de novo review, we are satisfied the judge correctly

determined plaintiff failed to present competent evidential materials sufficient

to defeat summary judgment on his CEPA claim. As the judge found, the

evidence shows plaintiff was terminated based on defendants' investigation into

his allegedly inappropriate conduct and the findings and conclusions of that

investigation as detailed in Jackson's January 10, 2022 report.

The record is devoid of any evidence supporting plaintiff's claim that he

was terminated because he reported misconduct by Jones on July 28, 2021.

Plaintiff's claim that Jones "effectively used [defendants'] as an agent of

retaliation" is precisely the type of insubstantial argument based on assumptions

or speculation that is not enough to defeat a motion for summary judgment.

Brill, 142 N.J. at 529. Because plaintiff failed to present competent evidence

from which a rational factfinder could conclude his termination was causally

related to his whistle-blowing activity, his CEPA claim was properly dismissed.

B.

We are also persuaded the judge correctly granted summary judgment on

plaintiff's defamation claim. In order to prove defamation:

a plaintiff must establish, in addition to damages, that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff. The fifth element that must be proven

A-1241-24 12 is fault. Where, as here, plaintiff is a private figure and the speech is about an exclusively private concern, a traditional negligence standard of fault is applicable, which is defined as communicating the false statement while acting negligently in failing to ascertain the truth or falsity of the statement before communicating it.

[Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996) (internal citations omitted).]

Based on our de novo review, we are convinced the judge correctly

determined the allegedly defamatory statements contained in the Letter, if they

were about plaintiff, fairly and accurately summarized defendants' investigation

and were not false. We do not perceive any basis to conclude the judge erred

by dismissing plaintiff's defamation claim.

Affirmed.

A-1241-24 13