NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4644-13T2
AMA ARMAH, SHEREE PACE and SHAWANA BIGGS,
Plaintiffs-Appellants,
v.
EDUCATION AFFILIATES, INC., EFC TRADE III, INC., JANE CHADWICK and TIMOTHY RODGERS,
Defendants-Respondents. _______________________________
Argued April 20, 2015 – Decided August 26, 2015
Before Judges Lihotz, St. John and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L- 1126-12.
Julie A. LaVan argued the cause for appellants (LaVan Law, attorneys; Ms. LaVan, of counsel; Alaina A. Gregorio, on the brief).
Scott V. Heck argued the cause for respondents (Gordon & Rees, LLP, attorneys; Elizabeth F. Lorell, of counsel and on the brief; Mr. Heck, on the brief).
PER CURIAM
Plaintiffs Ama Armah, Sheree Pace, and Shawana Biggs appeal
from the May 9, 2014 summary judgment dismissal of their
complaint alleging violations of the Conscientious Employees Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA) and constructive
discharge by defendants Education Affiliates, Inc. (EA), EFC
Trade III, Inc. (EFC), and individual defendants Jane Chadwick
and Timothy Rodgers. The motion judge concluded plaintiffs'
disclosures did not relate an objectively reasonable "violation
of the law or a rule or regulation promulgated pursuant to law."
He also rejected plaintiffs' claims for constructive dismissal,
repudiating the alleged conduct as "egregious" and finding no
nexus existed between alleged whistleblowing activities and
plaintiffs' separation from employment.
On appeal, plaintiffs argue the judge erroneously granted
summary judgment, distorting the standard for establishing a
prima facie CEPA claim, and viewed the evidence in favor of
defendants. We disagree and affirm.
I.
We recite the facts as taken from the summary judgment
record, viewed in the light most favorable to plaintiffs, the
non-moving parties. Davis v. Brickman Landscaping, Ltd., 219
N.J. 395, 405-06 (2014). Although plaintiffs' claims focus on
encounters with Rodgers, the specific claims undergirding their
causes of action are individual. Therefore, we set forth facts
separately alleged by each plaintiff. For the sake of clarity,
we first introduce the parties and their relationships, followed
2 A-4644-13T2 by plaintiffs' asserted actionable conduct, defendants'
evidence, and, lastly, recite the motion judge's decision.
Plaintiffs were employed by Fortis Institute, which "is a
post-secondary network of colleges and institutes that . . .
prepare[s] students for careers in healthcare, nursing, medical,
dental, business, information technology, massage, cosmetology
and the skilled trades such as welding and HVAC." FORTIS,
http://www.fortis.edu/our-difference/our-legacy.aspx (last viewed
August 3, 2015). Fortis is owned and operated by EA. EFC
assists in the job placement for Fortis graduates.
During plaintiffs' period of employment, Chadwick was the
Regional Vice President of Fortis and Rodgers served as
Executive Director of the Lawrenceville campus. Chadwick held
"operational responsibility for nine [Fortis] campuses located
in New Jersey, Pennsylvania, Tennessee, and Virginia" and is
Rodgers' direct supervisor. As Executive Director, Rodgers was
"responsible for the overall administration of the
[Lawrenceville campus], which includes oversight of all
departments, admissions, academics, financial aid, career
services[,] . . . and . . . the students." Rodgers "worked with
and supervised all three [p]laintiffs," who held administrative
positions at the Lawrenceville campus.
Armah was the Director of Allied Health Program. She
supervised the health department, working with faculty and
3 A-4644-13T2 students. Biggs began working as a financial aid officer on
October 11, 2010 and was responsible for assisting students with
the financial aid process. Pace was hired as the Director of
Education, a job which included the recruitment, hiring, and
supervision of faculty, and, "as the academic leader of the
campus," regulation of the policies and procedures governing
student education and "faculty development."
A.
Armah's hostile work environment claims are based on
Rodgers' implementation of a perceived illegal and/or unethical
class attendance and grade changing policy. The existing policy
"published in the student catalog[,] allowed students to miss
four days and anything over this meant students had to retake
the course without exception." The proposed policy would allow
students to attend general make-up hours in the library.
Rodgers discussed the make-up class policy with Armah and told
her "to introduce it to the students and give them an effective
date." However, in subsequent staff and director meetings, when
Armah questioned the policy, Rodgers stated he was "delaying"
its implementation.
Armah identified two students who she believed had their
grades altered under the policy. She maintained the make-up
policy was
4 A-4644-13T2 in direct violation to Fortis' accreditation [requirements] . . . because make-up courses by definition have to be actual classes taught by an instructor as opposed to . . . Rodgers' policy, which gave busy work to be completed in the library without supervision, and simply signed off on by the instructor or director[,] eliminating the responsibility or accountability of the attendance advisor[,] . . . [Kathy] Sinatra.
A related problematic practice altered Fortis' grade change
policy. This policy, which was also recorded in the school
catalog, "required the student make [a] request to the
instructor for the grade(s) in question," and changes were to be
approved by the program director. Armah alleged Rodgers,
however, used a formula which allowed a student to miss class
hours with "the understanding that if they do not satisfy the
'required hours per course[,]' . . . their grade will be
affected" and their attendance would be increased "by some
unexplained formula." She suggested, "[i]n essence[,] we borrow
from the grade (of some[,] not all) and apply it to the
attendance[,] then report a false number." Because not all
students received the verbal notification of this policy, some
were unaware their grades were changed until after the change
was actually made. In such cases, the student's grade "did not
represent the true academic achievement or true [Grade Point
Average] the student earned."
5 A-4644-13T2 Among Armah's objections to these practices was the
policies were introduced orally, making them subject to
interpretation and Sinatra was the only person supervising
whether students satisfied the hours she reported, even though
she could not interpret the attendance reports she generated.
When Armah raised these concerns, her access to grade recording
software on CampusVue was restricted.1
On May 26, 2011, Armah sent a letter to Fortis' human
resources department reporting Rodgers treatment of her, and
"concerns . . . [she] had with students' attendance, . . .
students' grade changing, [and] . . . with the overall
[employee] culture." She also related being subjected to unfair
and unequal treatment, suggesting Rodgers burdened her with
other employees' work.
That same month, Armah suffered an anxiety attack which
required hospitalization and a brief leave of absence. When she
returned to work, Armah maintained the hostility and harassment
continued because she "[spoke] against . . . Rodgers' attendance
policy." In October 2011, Armah again left Fortis on sick
1 CampusVue is a web-based platform used by Fortis "as their online gateway to academics, financial aid administration, career placement, office applications, and more." Campus Management, http://www.campusmanagement.com/EN- US/Products/Product%20Sheet/CampusVue_Portal_Product_Sheet.pdf (last viewed August 3, 2015).
6 A-4644-13T2 leave, citing her health concerns related to anxiety. While on
disability, she learned Fortis cancelled her insurance benefits,
which she believed was purposeful. The benefits were reinstated
with no break in coverage.
Armah provided Fortis with a doctor's letter stating she
would be returning to work after the new year. A Fortis human
resources officer understood this meant January 3, 2012, and
confirmed this understanding in a letter. The correspondence
also inquired whether Armah needed an accommodation upon her
return. Armah neither responded nor returned to work. She was
sent a final notice at the end of January 2012, which itemized
the necessary documentation required to continue medical leave
and maintain her benefits. The letter concluded with the
statement: "If we do not receive the documentation by February
10, 2012, we will consider that you have resigned from your
position." Armah did not reply. Fortis considered her as
"resigned," effective February 13, 2012.
Armah's response to discovery delineated the following
claims of harassment by Rodgers, alleging he: followed her
closely in the hallways; locked his office door when meeting
with her; listened outside the bathroom while she used the
facilities; turned out the bathroom lights while she used the
facilities and waited "several minutes, hours, or days before he
restored the power"; prevented, interrupted, and ended her lunch
7 A-4644-13T2 breaks; called her several times on a day off; threatened her
while she was at home ill; followed her when she left work
during her breaks; delayed or denied provision of resources
necessary to perform her duties; delayed approval of her
schedule, making her "appear incompetent and ill[-]prepared" to
others; caused her discomfort because he stared at her while
speaking with co-workers; issued work demands outside her job
description; made hostile threats using profane language; and,
during one incident, demanded she "stop working, turn around and
look him in the eyes," said "nothing more and just stared at
[her] for a while[,] then turned around and walked away."
Armah's final claim stated:
While [she] was out on sick leave, . . . Rodgers changed [her] job description, which now forced [her] to perform more job duties. [Armah]'s signature was placed on the document by someone other than [her], and . . . Rodgers provided [her] with this signed version for her to obtain approval by her doctor to perform these new tasks.
B.
Biggs alleged she experienced a hostile work environment
when she voiced concerns following her review of a federal
financial aid application with a student who had not filed tax
returns, despite a W-2 reflecting approximately $55,000 in
earned income. Biggs alleged Rodgers pulled out federal form
1040 and completed it for the student, who signed it. Rodgers
8 A-4644-13T2 instructed Biggs to "[k]eep this in the [student's] file" and
use it to submit the request for financial aid. As a result,
she understood the student received a $9,500 student loan. When
asked how the student was able to obtain the loan, Biggs
responded "Rodgers worked his magic." Biggs told Rodgers she
"was not comfortable with doing [such] things" and "informed him
that he needed to sign off on the student's file himself" to
approve it because she wanted to avoid "getting in[to] trouble."
Biggs recalled one other instance where Rodgers amended a
student's tax return and signed off on the file.
Biggs reported these events to Fortis' Regional Director of
Financial Aid (RDFA) and mentioned the issue to Pace. The RDFA
instructed Rodgers "to stop altering the [Free Application for
Federal Student Aid] information." However, in her subsequent
conversation with the RDFA and Rodgers, he "engaged in a debate
. . . about . . . changing of tax information," and applicable
policies." Biggs defended her position that "she did not feel
comfortable with changing taxes, and reiterated that she did not
wish to be held accountable if anything were to go wrong." The
RDFA suggested such conversations should be conducted in
"Rodgers' office to 'spare him his dignity.'" Biggs took this
as an affront and asserted "time and time again . . . Rodgers
trie[d] to make it seem like she doesn’t know what she's doing."
9 A-4644-13T2 Biggs also asserted Rodgers changed students grades "in the
system so that students could meet Satisfactory Academic
Progress" and "remain eligible to receive financial aid." In
her deposition she discussed a failing student whose grades
Rodgers apparently changed. It was clear the information was
provided to Biggs by Armah. When asked specifics about the
grade change, Biggs could not recall, but suggested she believed
the change was favorable. She also stated Fortis would benefit
because the student would receive financial aid, but again could
not remember whether the identified student actually received
tuition aid.
Biggs related two additional student grade adjustments. In
one instance she identified a disabled financial aid recipient
student who "could not pass a class," and whose grade was
changed from an "F" to another grade, possibly an incomplete.
The second was not identified by name, but Biggs believed the
student's grades were adjusted "because she was never in school
[so] there's no way she could have gotten a grade other than an
I[ncomplete]." Biggs confronted Rodgers about the grade
adjustments, which she considered illegal and unethical.
Thereafter, Rodgers "proceeded to treat [her] in a hostile
manner and give her excessive amounts of work."
In June or early July, 2011, Biggs learned she was
pregnant. She informed Fortis "that effective immediately,
10 A-4644-13T2 [she] was going to resign" and admitted the pregnancy was
classified as "high-risk" because of her age. In her complaint,
Biggs alleged she "feared if she remained in this extremely
stressful and hostile work environment that . . . Rodgers had
created . . . she would be at risk of losing her child[,] so she
had no option but to resign." Biggs left Fortis on July 17,
2011.
In discovery materials, Biggs identified conduct avowed to
support her claims, stating Rodgers: interrupted her lunch by
approaching to talk about work matters and assigned "excessive
amounts of work"; "st[ood] in the lounge, staring and listening
to [her] conversation" with certain coworkers; required her to
train a new director he hired; instructed his secretary to sit
with her during lunch with certain coworkers recalling Rodgers'
secretary stated she "would rather be an informant than to be
unemployed"; one time "hid[] in the next cube over listening to
[her] conversation" with the new director; constantly follow her
around the office; and "would even wait outside the restroom
when [she] made use of it, and even entered the men's bathroom
and "listened against the wall", noting "[h]e had this terrible
cough, uncontrollable cough, so whenever [she] would go into the
bathroom[,] it was like clockwork" as she "could hear him
coughing."
C.
11 A-4644-13T2 As Director of Education, Pace objected when she was "not
consulted for [the] hiring" of Sinatra as the Director of the
Dental Education program and supervisor of the Radiology
Department. When Pace asked Rodgers to review Sinatra's
credentials, "he refused, became increasingly hostile towards
her, and told her not to worry about [Sinatra]'s credentials."
Pace maintained Sinatra was "not qualified to teach and
supervise the [R]adiology [D]epartment." She also challenged
Rodgers' decision to include Sinatra in national conferences,
which Pace believed were limited to Deans of Education.
Contemporaneous to these events, Pace objected when Rodgers
adopted Sinatra's suggestion to alter the attendance policy,
allowing students to make up unexcused absences by attending
"make[-]up hours" held in the school library. Pace contended
the "attendance issue [wa]s very important," directly affecting
the school compliance with requirements set by the Accrediting
Bureau of Health Education Schools and national financial aid
regulations. Pace did not identify the accreditation standards
she believes were impacted by the new policy. When examined
during depositions, Pace admitted she never witnessed Rodgers
adjusting student attendance, but "heard he may have done [so]
after [she] left."
Pace sent emails to various administrators, including
Chadwick, describing Rodgers' acts of fraud and harassment.
12 A-4644-13T2 Chadwick informed Pace, after an investigation, her claims were
determined "unfounded." When Pace suggested she would relate
her concerns to EA's Vice President, Rodgers warned her "not to
do that, and that if [she] did[,] he'd consider it
insubordinate, and he would fire [her]." She recalled Rodgers
memorialized these threats in an email, which was not produced
in discovery.
We note the record includes emails Pace sent to EA's Vice
President, following her leave of absence from employment.
Statements made include a characterization of Rodgers' conduct
as "fraud"; however, instances corroborating her allegations
included only events she learned from others, not those she
experienced.
Sometime in January 2011, Pace was hospitalized. She
attributed her medical condition to "a lot of stress and anxiety
because of how [she] was treated" and "work[ing] long hours."
Pace returned to work, but left on medical leave because of
"[d]epression and anxiety" on February 15, 2011. Pace was to
return to work by March 1, 2011. She did not, citing "the
treatment from Fortis . . . and the harassment and nothing being
done . . . ."
On May 9, 2011, Pace was notified Fortis' short-term
disability insurance carrier had cleared her "to return to work,
with no restrictions, effective May 10, 2011." Since Pace had
13 A-4644-13T2 not communicated with Fortis, she was asked whether she intended
to return to work and, if so, what accommodations she required
to perform her job responsibilities. Pace was requested to
respond "as soon as possible — and in any event no later than
this Friday, May 13[, 2011]," otherwise Fortis would "proceed to
seek candidates for the job of Director of Education" because it
is a "critical position . . . that [the Lawrenceville campus]
cannot leave vacant indefinitely."
Pace believed the notice was deliberately sent to her
former address. She eventually received the letter and
responded, but did not propose a return date, prompting a second
notice. The follow-up letter advised Pace "medical
documentation no longer support[ed her] leave-of-absence," but
Fortis accepted her "word" she had not yet been cleared to
return to work by a physician. Reiterating its willingness to
provide a reasonable accommodation and the critical need of her
response, Fortis requested she provide "an anticipated return-
to-work date, so that we may plan accordingly."
Ultimately Pace provided a doctor's note authorizing her to
return to work on July 11, 2011, and informed human resources
she needed to work less hours and sought "'a written list' of
the 'working conditions' that [she] w[ould] be 'subjected to,'"
because she did not want to be further harassed by Rodgers.
Pace provided no additional medical documentation supporting her
14 A-4644-13T2 continued leave or describing restrictions necessitating an
accommodation.
On July 26, 2011, Fortis officially terminated Pace's
employment, citing it held her position open for five months
while attempting to work with her to achieve her return;
however, Pace refused to cooperate or provide an explanation of
how her ability to work was delayed or restricted.
Discovery materials submitted by Pace identified instances
of general and specific harassment, as well as retaliatory
conduct, by Rodgers as follows: name calling and "expressions of
hatred" by Sinatra to students and faculty and Rodgers' refusal
to "write her up" or impose discipline; "Rodgers threatened
[her] with insubordination" when Pace informed him she would
document Sinatra's inappropriate behavior; advised Pace to avoid
the "cliques" at lunch time stating "if [she] did not eat lunch
with everyone, she could not eat lunch with anyone"; locking his
office when speaking to Pace and, when addressing her in her
office or the copier room, leaned against the closed door so
others could not overhear the conversation; nicknamed her and
the registrar "Lucy and Ethel"; required Pace to have two
offices, which was "a hassle"; revealed to Sinatra, her
"birthdate and age in violation of her right of privacy"; left
Sinatra undisciplined when she told others Pace's leave of
absence resulted because she was "a psycho"; followed her
15 A-4644-13T2 everywhere and watched her on security cameras, controlling whom
she could speak with; isolated her, prevented friendships with
colleagues, precluded her from taking lunch and other breaks;
increased her work hours; and threatened her with
insubordination and job loss.
D.
Rodgers' deposition testimony along with defendants'
interrogatory answers were attached to the summary judgment
motion, filed at the close of discovery. Defendants' denied
each of the plaintiff's allegations and submitted identified
responses, giving context and content to the facts surrounding
these issues. Addressing the attendance policy, defendants
maintained "attendance is not a required factor in determining a
student's Satisfactory Academic Progress." Fortis' written
policy contains no reference to attendance, but discusses
minimum requirements based upon credit completion and cumulative
GPA.
Rodgers certification, which also accompanied the summary
judgment motion, stated "[a]t the time that [p]laintiffs . . .
were employed (including while Pace and Armah were on medical
leave), there was no attendance requirement set forth by [the
16 A-4644-13T2 Accrediting Bureau of Health Education Schools]."2 He denied
suggesting the new make-up policy, noting accrued make-up hours
in the library never adjusted a student's actual attendance
because "the make-up hours were not classes taught by
instructors."
Responding to allegations regarding grade changes for
specific students, Rodgers acknowledged he "did change grades"
while serving as the Registrar and entered "incompletes."
Rodgers described resultant circumstances after he noticed
several failing grades issued by an instructor following
completion of her first module. Questioning the new instructor,
he learned she issued failing grades because student work was
not completed. Rodgers directed her to Fortis' published
policy, which "allow[ed] students who have not completed work to
request an incomplete grade, after which they have [fourteen]
days to make that up, and, at the end of that [fourteen] days,
with . . . that completed work, [Fortis would] assign a new
grade or . . . revert [it] back to an 'F.'" Rodgers also
discovered faculty members in the Allied Health Program were not
familiar with the policy, despite its publication, and informed
them of the policy's provisions.
2 On November 8, 2011, Fortis implemented a new attendance adjusting policy where "[a]ny student that had attendance below 80% would drop a grade unless there were excused absences to support the absence(s)."
17 A-4644-13T2 Rodgers also denied "fudging" any financial aid forms,
suggesting he merely "reviewed the files to make sure that the
information that was necessary was there." Following his
exercise of "professional judgment," a policy he stated was
sanctioned by the federal Department of Education, "[a]
student's financial aid application and information c[ould] be
modified based on [a] change in circumstances over what was the
base year determination of . . . eligibility." Addressing
specific student situations, he explained their changed
financial circumstances and his preparation of documents for
internal financial aid purposes was designed to record the
students' current financial situation. Regarding the student
identified by Pace, Rodgers explained he had a college degree
and would have been eligible for the $9500 student loan under
any circumstance.
In the separate summary judgment motions seeking to dismiss
each plaintiff's complaint, defendants argued no plaintiff
established a CEPA claim. Importantly, defendants maintained no
plaintiff could identify any law or regulation Rodgers violated
related to their disclosures. Plaintiffs' opposition asserted
the evidence was sufficient to show they reasonably believed
Rodgers violated the law and they experienced harassment and
retaliation for objecting to and refusing to participate in
unlawful practices.
18 A-4644-13T2 Following oral argument, the Law Division judge granted
defendants' motions and dismissed plaintiffs' complaint in its
entirety. He agreed with defendants, finding no evidence of an
"objective belief" defendants violated the law or a regulation.
At best, plaintiffs' challenged compliance with internal
policies regarding make-up time, attendance, or changing grades
to incompletes, activities which is not covered by CEPA.
Plaintiffs' claims for constructive discharge were also
rejected. The judge found Rodgers' alleged behavior towards all
three plaintiffs did not rise to the level of egregious conduct
"so intolerable that reasonable persons would resign." The
judge noted plaintiffs were not terminated or forced to resign
for objecting to alleged policy violations. Armah and Pace were
discharged for their failure to provide documentation
substantiating their extended absences and inform Fortis when
they would return to work. As for Biggs, she identified the
altered tax returns and grades as the principle basis of her
claims. However, no evidence of any altered tax returns or
grades "in an unethical or illegal manner" was presented.
Rather, the record evinced student financial information and
grades were adjusted "in accordance with . . . [Fortis'] grade
changing policy and the rules governing financial aid."
Lastly, the judge repudiated plaintiffs' claims of fraud on
the federal government because "[t]hat argument ha[d] only been
19 A-4644-13T2 raised recently in opposition to th[e summary judgment] motion."
An order memorializing the judge's decision was entered on May
9, 2014.
Plaintiffs moved for reconsideration, which was denied.
The judge reemphasized plaintiffs' CEPA claims were legally
untenable because allegations of illegal activity were
"objectively unreasonable." This appeal ensued.
II.
Appellate review of a trial court's summary judgment
determination is well-settled.
In our de novo review of a trial court's grant or denial of a request for summary judgment, we employ the same standards used by the motion judge under Rule 4:46-2(c). Brickman Landscaping, supra, [219] N.J. [at 406]. First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non- moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Factual disputes that are merely "'immaterial or of an insubstantial nature'" do not preclude the entry of summary judgment. Ibid. (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)). Also, we accord no deference to the motion judge's conclusions on issues of law. Estate
20 A-4644-13T2 of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).
[Manhattan Trailer Park Homeowners Ass'n v. Manhattan Trailer Court & Trailer Sales, Inc., 438 N.J. Super. 185, 193 (App. Div. 2014).]
"The very object of the summary judgment procedure . . . is
to separate real issues from issues about which there is no
serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01
(2002). A motion for summary judgment will not be precluded by
bare conclusions lacking factual support, Petersen v. Twp. of
Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving
statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App.
Div. 2013), or disputed facts "of an insubstantial nature."
Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R.
4:46-2 (2015). "[W]hen the evidence is so one-sided that one
party must prevail as a matter of law, the trial court should
not hesitate to grant summary judgment." Brill, supra, 142 N.J.
at 540 (citation and internal quotation marks omitted).
CEPA was "enacted . . . to protect and encourage employees
to report illegal or unethical workplace activities and to
discourage public and private sector employers from engaging in
such conduct." Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003)
(citation and internal quotation marks omitted).
21 A-4644-13T2 The statute provides, in pertinent part:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is 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, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or
(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, employee, former employee, retiree or pensioner of the employer or any governmental entity;
. . . .
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
22 A-4644-13T2 (1) is 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, 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.]
To establish a prima facie case under CEPA, a plaintiff
must show:
(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); (3) an adverse employment action was taken against
23 A-4644-13T2 him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.
[Dzwonar, supra, 177 N.J. at 462.]
This standard does not require a plaintiff to "show that
his or her employer or another employee actually violated the
law or a clear mandate of public policy." Id. at 462, 464.
Rather, "a plaintiff must set forth facts that would support an
objectively reasonable belief that a violation has occurred."
Id. at 464.
In other words, when a defendant requests that the trial court 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. If the trial court so finds, the jury then must determine whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable.
[Ibid.]
See Klein v. UMDNJ, 377 N.J. Super. 28, 40 (App. Div.) ("CEPA
requires judicial resolution of threshold legal issues
respecting existence of a statutory, regulatory or other clear
mandate of public policy before the trier of fact determines
whether an employee has been retaliated against for acting upon
an objectively reasonable belief of the existence of such clear
mandate by objecting to or refusing to perform acts in violation
24 A-4644-13T2 of the mandate." (citation and internal quotation marks
omitted)), certif. denied, 185 N.J. 39 (2005).
Once a plaintiff establishes these elements, the burden
shifts to the defendant to "advance a legitimate,
nondiscriminatory reason for the adverse conduct against the
employee." Id. at 38. "If such reasons are proffered, [the]
plaintiff must then raise a genuine issue of material fact that
the employer's proffered explanation is pretextual." Id. at 39.
III.
On appeal, plaintiffs argue the judge erroneously imposed a
"heightened standard of reasonableness" and improperly weighed
the facts contrary to accepted principles governing summary
judgment, which directs evidence be viewed favorably to the non-
moving party. Plaintiffs maintain the judge simply concluded
"[d]efendants' version of the facts were correct and
[p]laintiffs' version of the facts were incorrect." We
disagree.
In their argument, plaintiffs suggest summary judgment is
vaulted merely because they objected to Rodgers' conduct, which
they reasonably believed was unlawful or violated public policy.
Essentially, they maintain the judge must accept their
individual assertions of "a reasonable belief" regarding the
nature of the conduct. The flaw in plaintiffs' suggestions,
however, is a law, regulation, or policy must exist at the time
25 A-4644-13T2 of the objection and "the objecting employee must have an
objectively reasonable belief . . . that such activity is either
illegal, fraudulent," or contrary to a recognized public
policy." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193 (1998).
Contrary to plaintiffs' assertions, it is not sufficient to
label conduct "unlawful," as the notion something "is illegal"
will not satisfy this element. See Dzwonar, supra, 177 N.J. at
464 (discussing objective reasonable belief element). The
objectively reasonable belief of illegal conduct must be
grounded upon a law, regulation, or policy. A plaintiff does
not ultimately need to be correct to prove the conduct was
illegal, only show his or her belief was reasonably based upon
an existing law or regulation.
As noted by the motion judge, the record does not identify
any law, regulation or guideline purportedly breached or
violated. Plaintiffs maintained Rodgers violated financial aid
and accreditation regulations, but never identified which
regulations they believed governed his conduct. We conclude
the judge's rejection of the overarching contention suggesting
Rodgers' conduct was illegal fully comports with the required
standards. See Heyert, supra, 431 N.J. Super. at 414 ("[S]elf-
serving statement[s], standing alone, [are] insufficient to
create a genuine issue of material fact . . . .").
26 A-4644-13T2 Plaintiffs' supposition the trial judge improperly applied
the standard of review for summary judgment is equally
unavailing. The implication of the judge's statement that no
proof existed, "other than the plaintiffs' words," is directed
to the contentions of illegal conduct challenged by plaintiffs
in their disclosures as violating regulations governing Fortis'
accreditation or federal financial aid law. The motion judge
did not assess credibility or weigh the evidence offered. In
fact, his analysis properly sifted through the factual record,
from which he concluded facts advanced by plaintiffs, at best,
reflected challenges to Fortis' internal practices and policies.
Other than their general assertions accreditation and financial
aid requirements were violated, plaintiffs offered no evidence
to suggest Rodgers engaged in illegal or unethical conduct.
Moreover, plaintiffs' statements Rodgers ignored school
protocol by delineating guidelines for adjusting attendance and
adjusting grades, were belied by Fortis' written policies
showing attendance was not linked to grades and use of an
incomplete grade was permitted under specific circumstances.
Importantly, the four students identified to experience positive
grade changes, so as to affect accreditation or financial aid,
were shown by defendants to actually have been assigned lower
grades.
27 A-4644-13T2 As for Biggs' assertions of fraudulent financial aid
documentation, those statements were directly contradicted by
federal statutes and case law supporting school discretion in
modifying student financial aid information. See 20 U.S.C. §
1087tt; U.S. v. Brown Univ., 5 F.3d 658, 662 (3d Cir. 1993)
("[S]chools may increase or decrease the family contribution
determination using their professional judgment. Professional
judgment may be used only on a case-by-case basis when special
circumstances exist. Through the exercise of professional
judgment, schools may have differing family contribution
determinations for the same applicant." (citations omitted)).
Rodgers' factual assertions applying the governing regulations
were unrefuted.
Finally, no documentary or testimonial evidence shows or
tends to show application of the new objectionable policies
described by plaintiffs. Affected students complaints were not
produced and plaintiffs could not recall incidents with
specificity.
The disagreement with internal corporate or business
policies or their application, which do not otherwise violate
the law, are not whistleblower activities.3 Klein, supra, 377
3 We do not view Pace's complaint about Sinatra's competence as the type of CEPA-covered compliance activity by a watchdog employee discussed in Lippman v. Ethicon, Inc., __ N.J. __ (continued)
28 A-4644-13T2 N.J. Super. at 44 (rejecting a claimant's disagreement with his
employer over "internal procedures . . . , potentially tied to
some extent to funding issues" as "an objectively reasonable
belief that public [policy] mandates [were] being violated").
In Maw v. Advanced Clinical Comm[unications], Inc., 179 N.J. 439, 444 (2004), the [Supreme] Court explained that a "clear mandate of public policy" under N.J.S.A. 34:19-3(c)(3) conveys[:]
a legislative preference for a readily discernable course of action that is recognized to be in the public interest. A "clear mandate" of public policy suggests an analog to a constitutional provision, statute, rule or regulation promulgated pursuant to law such that . . . under [N.J.S.A.] 3(c)(3), there should be a high degree of public certitude in respect of acceptable versus unacceptable conduct.
[Massarano v. N.J. Transit, 400 N.J. Super. 474, 489 (App. Div. 2008).]
(continued) (2015). In that matter, the "[p]laintiff's normal job duties included providing his medical opinion about the safety of defendant pharmaceutical company's products." Id. at 10-11. His CEPA action claimed his employer retaliated against him for objecting to corporate practices. Id. at 11. The trial court granted the defendants' motion for summary judgment on the ground that plaintiff's performance of his regular job duties could not constitute CEPA-protected conduct. Ibid. The Supreme Court rejected this view, holding "CEPA's protections extend to the performance of regular job duties by watchdog employees." Id. at 12, 45.
29 A-4644-13T2 Lastly, the judge discussed the supporting documentation
surrounding each plaintiff's termination or resignation as
unrelated to the claimed harassing or retaliatory conduct.4
Armah did not provide documentation to support continued medical
leave and did not return to work; Biggs left work to safeguard
her baby when told hers was classified as a high-risk pregnancy;
and Pace's conduct was considered as a resignation when she did
not return to work despite being cleared to do so following her
medical leave.
Following our review, we reject plaintiffs' suggestion the
judge imposed an incorrect, heightened standard of review. The
record amply supports his findings of no identifiable
whistleblower activity and no nexus between disclosures and each
plaintiff's separation from employment. The newly advanced
claims of psychological injury, unsupported by expert evidence,
4 We further note, the record references Equal Employment Opportunity Commission (EEOC) complaints filed by Armah and Biggs asserting each was subject to harassment and a hostile work environment. "Congress created the EEOC and established an administrative procedure under Title VII . . . to provide the EEOC with an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party [is] permitted to file a lawsuit." Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305, 325 (App. Div.) (second alteration in original) (citation and internal quotation marks omitted), certif. granted, ___ N.J. __ (2014). The EEOC determined the claims were unsubstantiated and informed plaintiffs of their right to sue. Although not determinative of plaintiffs' CEPA claims, these facts lend support to the conclusion Rodgers' conduct was not harassing.
30 A-4644-13T2 is also rejected. See Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973) (holding "appellate courts will decline to
consider questions or issues not properly presented to the trial
court when an opportunity for . . . presentation [wa]s available
unless the questions . . . go to the jurisdiction of the trial
court or concern matters of great public interest." (citation
and internal quotation marks omitted)).
Given our opinion, we reject plaintiffs' attack on the
denial of their motion for reconsideration. R. 2:11-3(e)(1)(E).
Affirmed.
31 A-4644-13T2