Opinion
DOCKET NO. A-4486-13T4
01-29-2016
WILLIAM R. BASILE, Plaintiff-Appellant, v. PASSAIC VALLEY SEWERAGE COMMISSION, WAYNE J. FORREST, EXECUTIVE DIRECTOR, JAMES MCCARTHY, and KENNETH J. LUCIANIN, COMMISSIONER OF THE PASSAIC VALLEY SEWERAGE COMMISSION, Defendants-Respondents.
George T. Daggett argued the cause for appellant (Daggett, Kraemer & Gjelsvik, attorneys; Frederic G. Weber, of counsel; Mr. Daggett and Joseph M. Corazza, on the brief). James F. Dronzek argued the cause for respondents Passaic Valley Sewerage Commission, Wayne J. Forrest, and Kenneth J. Lucianin (Chasan, Leyner & Lamparello, P.C., attorneys; Mr. Dronzek, of counsel and on the brief). Sean Joyce argued the cause for respondent James McCarthy (Carmagnola & Ritardi, L.L.C., attorneys; Domenick Carmagnola, of counsel; Mr. Carmagnola and Mr. Joyce, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz, and Gilson. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5533-12. George T. Daggett argued the cause for appellant (Daggett, Kraemer & Gjelsvik, attorneys; Frederic G. Weber, of counsel; Mr. Daggett and Joseph M. Corazza, on the brief). James F. Dronzek argued the cause for respondents Passaic Valley Sewerage Commission, Wayne J. Forrest, and Kenneth J. Lucianin (Chasan, Leyner & Lamparello, P.C., attorneys; Mr. Dronzek, of counsel and on the brief). Sean Joyce argued the cause for respondent James McCarthy (Carmagnola & Ritardi, L.L.C., attorneys; Domenick Carmagnola, of counsel; Mr. Carmagnola and Mr. Joyce, on the brief). PER CURIAM
In February 2011, the Passaic Valley Sewerage Commission (PVSC) laid off approximately seventy employees following a state investigation that found PVSC was, among other things, overstaffed. Plaintiff William Basile was one of the employees let go. He claims, however, that the real reason for his termination was retaliation for a whistleblowing incident that occurred in 1998, thirteen years before his termination. The trial court granted summary judgment to defendants concluding that there was no evidence that could establish a causal connection between plaintiff's alleged whistleblowing activities and his termination. Plaintiff twice moved for reconsideration and both those motions were denied. Plaintiff now appeals the denial of his second motion for reconsideration. We affirm.
I.
We discern the facts and procedural history from the record, and view the facts in the light most favorable to plaintiff because summary judgment motions were brought against his claims. See Cuiyun Qian v. Toll Bros. Inc., 223 N.J. 124, 134 (2015) (viewing evidence in light most favorable to non-moving party).
Plaintiff worked for PVSC for over thirty years as an electrical engineer. In 2011, he was sixty years old, held the title of Engineer I, the highest level of engineer at PVSC, and was receiving an annual salary of $144,000.
In January 2011, Governor Christie issued an executive order that, among other things, authorized Executive Director, defendant Wayne Forrest, to reorganize and where necessary, reduce the number of employees at the PVSC. Forrest determined that PVSC was overstaffed and he directed all department managers, including defendant James McCarthy, to restructure and reduce staffing levels in each department. Particular attention was to be given to employees receiving high salaries, since approximately 100 employees at PVSC earned over $100,000 per year. Forrest instructed the department managers to recommend to him the employees to be terminated by February 7, 2011.
McCarthy managed the engineering department where plaintiff worked. McCarthy evaluated the needs of the engineering department, and ultimately recommended that plaintiff, as one of the four senior engineers, and two other employees be terminated. Plaintiff's name was not on an initial termination list, but his name was added to the list submitted to Forrest on February 6, 2011. The following day, plaintiff was terminated, together with a large number of other employees.
Approximately a year later, on February 1, 2012, plaintiff filed a complaint naming as defendants the PVSC, Forrest, McCarthy, and Kenneth Lucianin, a Commissioner at the PVSC. Plaintiff asserted three claims: (1) violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; (2) violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and (3) common law wrongful termination.
In support of his claims, plaintiff testified that in 1998, McCarthy asked him to review and sign off on engineering drawings prepared by another PVSC employee who was not an engineer. Plaintiff refused and told McCarthy that such a sign off would be illegal. Eventually, an outside engineering firm approved the drawings and plaintiff acknowledged that that approval was legal. Plaintiff also acknowledged that the practice of "reviewing" documents drafted by non-engineers was common-place and was legal under appropriate circumstances. According to plaintiff, the incident in 1998 was the only time McCarthy requested plaintiff to review and sign off on work prepared by that non-engineer employee. Nevertheless, plaintiff contends that, thereafter, he and McCarthy had a strained relationship. For example, plaintiff contends that he witnessed a significant amount of engineering work being performed by non- engineer employees. In addition, during the period between 2003 and 2010, plaintiff identified several projects where McCarthy took away plaintiff's responsibilities and assigned those responsibilities to other employees. Plaintiff conceded, however, that those reassignments did not change his basic work responsibilities, he had plenty of other work, and he was happy with his work. Moreover, plaintiff identified no adverse work-place consequences after the 1998 incident until his termination in February 2011. For example, plaintiff does not claim he was demoted, or passed over for promotion. Nor does he contend that his salary was adversely affected in any way.
Near the completion of discovery, which included depositions of plaintiff, Forrest, and McCarthy, defendants moved for summary judgment. On February 28, 2014, the trial court heard arguments, granted summary judgment, and dismissed plaintiff's claims. The judge placed the reasons for his decision on the record and explained that he was dismissing plaintiff's CEPA claim on two separate grounds: (1) plaintiff failed to identify a law, regulation, or public policy that he believed defendants violated by asking him to sign off on engineering drawings prepared by a non-engineer; and (2) there were no facts showing a causal connection between the alleged whistleblowing activity in 1998 and plaintiff's termination in 2011. Plaintiff did not oppose the dismissal of the LAD and wrongful termination claims.
On March 19, 2014, plaintiff filed a motion for reconsideration, which the court denied on April 25, 2014. On May 5, 2014, plaintiff filed a second motion for reconsideration, which the court denied on May 23, 2014. On June 2, 2014, plaintiff filed a notice of appeal, stating that he was appealing the order filed on May 23, 2014.
II.
On appeal, plaintiff contends the trial court erred in granting summary judgment to defendants because he established a prima facie case of retaliation in violation of CEPA.
A.
Initially, we address what order is on appeal. A notice of appeal must "designate the judgment, decision, action or rule, or part thereof appealed from." R. 2:5-1(f)(3)(A). It is well-established "that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda., 397 N.J. Super. 455, 458 (App. Div. 2008); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). "Consequently, if the notice designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler and Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2016) (citing W.H. Indus., Inc., supra, 397 N.J. Super. at 458-59); see also Fusco v. Bd. of Educ., 349 N.J. Super. 455, 460-61 (App. Div.), certif. denied, 174 N.J. 544 (2002) (refusing to consider arguments about the grant of summary judgment on an appeal where plaintiff identified only the denial of his motion for reconsideration in his notice of appeal).
Here, plaintiff's notice of appeal expressly identifies that it is appealing only one order: the trial court's May 23, 2014 order. Plaintiff's notice of appeal references no other order. Moreover, plaintiff's civil case information statement, which was submitted with the notice of appeal, again identifies the order entered on May 23, 2014, as the order being appealed. While the case information statement makes reference to summary judgment, it does so only in the context of the denial of the motion for reconsideration: "The Court granted an Order denying reconsideration of its previous Order to grant Summary Judgment." Therefore, the only order properly before us is the May 23, 2014 order denying plaintiff's second motion for reconsideration.
The denial of a motion for reconsideration rests within the sound discretion of the trial court. Fusco, supra, 349 N.J. Super. at 462. "Motions for reconsideration are granted only under very narrow circumstances . . . ." Ibid. It has long been recognized that:
Reconsideration should be used only for those cases which fall into that narrow corridor in which either ([1]) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
In denying the second motion for reconsideration, the trial judge found that plaintiff was raising nothing new; instead, plaintiff was rearguing the same points the court had previously considered in denying the first motion for reconsideration and in granting summary judgment. Indeed, the trial judge merely elaborated on the basis for the court's original grant of summary judgment. We discern no abuse of discretion in the trial judge's decision to deny the second motion for reconsideration.
At oral argument before us, counsel for plaintiff contended that the trial judge effectively granted reconsideration on the first motion, but then affirmed the summary judgment on a new ground. Thus, plaintiff submits that the summary judgment order is before us because it was really the motion for reconsideration that granted summary judgment. That argument, however, is not an accurate reflection of the record. As already pointed out, the trial judge, identified two grounds for granting summary judgment on February 28, 2014. On reconsideration, plaintiff focused his arguments attacking the first ground; that is, whether plaintiff could identify a law, regulation or public policy that defendants allegedly violated by asking plaintiff to sign off on an engineering drawing prepared by a non-engineer. The judge never changed his ruling on that issue. Instead, in response to plaintiff's repeated arguments, he focused more on the second ground; that is, whether there were any facts showing a causal connection between the alleged whistleblowing activity in 1998 and plaintiff's termination in 2011. Thus, we see no basis to reverse the order denying plaintiff's motion seeking reconsideration.
Defendants argue that plaintiff's appeal of the order granting summary judgment is time-barred. We disagree. The order granting summary judgment was entered on February 28, 2014, plaintiff moved for reconsideration on March 19, 2014, thus tolling the running of the forty-five day time to appeal. See R. 2:4-3(e). The first motion for reconsideration was decided on April 25, 2014, and plaintiff moved for reconsideration a second time on May 5, 2014. The trial court denied the second motion for reconsideration on May 23, 2014, and plaintiff filed his notice of appeal on June 2, 2014. Accounting for the tolling of the time while the two motions for reconsideration were pending, thirty-nine days elapsed between February 28, 2014 and June 2, 2014. R. 2:4-1(a) (requiring an appeal to be taken forty-five days from the entry of judgment). On the record in this case, we reject defendants' argument that the time for appeal should not have been tolled during the pendency of plaintiff's second motion for reconsideration. We also reject defendant McCarthy's argument that the appeal should be dismissed since plaintiff allegedly never filed the proper brief or appendix.
Because plaintiff did not oppose defendants' motion for summary judgment seeking dismissal of the counts in his complaint predicated on the LAD and common law wrongful termination, we decline to consider plaintiff's argument attacking the trial court's decision on these issues. See R. 4:46-2(b) (describing the obligations of the party opposing summary judgment); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (holding that absent a challenge to the court's jurisdiction or matters of great public interest, appellate courts will decline to consider issues not properly presented to the trial court).
B.
If we were to review the order granting summary judgment to defendants, we would affirm. CEPA protects employees who engage in whistleblowing activity from retaliatory actions by employers. Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015). The central purpose of CEPA is "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." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003) (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). To establish a prima facie CEPA action, a plaintiff must satisfy a four-part test:
There are exceptions when we will expand our review beyond the order or judgment identified in the notice of appeal. See N. Jersey Neurosurgical Assocs. v. Clarendon Nat'l Ins. Co., 401 N.J. Super. 186, 196 (App. Div. 2008). While such an expansion of review is not warranted here, we will provide some comment to clarify that plaintiff has suffered no prejudice. --------
(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 him or her; and
(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.
[Lippman, supra, 222 N.J. at 380 (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)); see also Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 89 (2012) (quoting the same four-part test).]
We need not address the first three prongs of the test, because here plaintiff has not satisfied the fourth prong. "[T]he mere fact that [an] adverse employment action occurs after [the protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two." Young v. Hobart W. Grp., 385 N.J. Super. 448, 467 (App. Div. 2005) (second and third alterations in original) (quoting Krouse v. Am. Sterilizer Co., 126 F. 3d 494, 503 (3d Cir. 1997)). "[T]he plaintiff must show that the 'retaliatory discrimination was more likely than not a determinative factor in the decision.'" Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 293 (App. Div. 2001) (quoting Kolb v. Burns, 320 N.J. Super. 467, 479 (App. Div. 1999)). "Where the timing alone is not 'unusually suggestive,' the plaintiff must set forth other evidence to establish the causal link." Young, supra, 385 N.J. Super. at 467 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000)).
Viewing the evidence in the light most favorable to plaintiff, there is no evidence of a causal connection between plaintiff's whistleblowing activity in 1998 and his termination in 2011. Plaintiff argues that McCarthy lay in wait for thirteen years until the 2011 reduction in force directive gave McCarthy the opportunity to retaliate and have plaintiff fired. To support the contention that McCarthy harbored animosity towards the plaintiff for thirteen years, plaintiff points to several times when McCarthy took plaintiff off projects in the intervening years and reassigned the projects to someone else. Plaintiff acknowledged, however, that those reassignments did not negatively impact his work and he continued to be happy with his work. As a consequence, there is no causal bridge between 1998 and 2011. Proximity in time is not the "only circumstance that justifies an inference of causal connection." Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995). Nevertheless, even accounting for proximity, plaintiff needs to demonstrate some causal link between the whistleblowing activity and the alleged retaliation. Here, plaintiff has failed to demonstrate a causal link between his complaint in 1998 and his firing in February 2011.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION