Opinion
96 Civ. 806 (BSJ)(FM).
June 27, 2003.
REPORT AND RECOMMENDATION TO THE HONORABLE BARBARA S. JONES
I. Introduction
Plaintiff Jules Nettis ("Nettis") brings this suit against Mortimer Levitt ("Levitt"), the former owner and president of the Custom Shop, Inc. ("CSI"), Kathleen H. Rawdon, the former executive vice president of CSI, and seven additional corporations owned by Levitt. Nettis alleges that he was terminated from his position as controller of CSI, in violation of New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. 34:19-1, et seq., because he complained about alleged financial wrongdoing by other CSI employees.
The defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no factual basis for the CEPA claim and that the defendants other than Levitt, Rawdon, and CSI are improperly named. For the reasons set forth below, this motion should be denied.
II. Procedural History
Your Honor is, of course, familiar with the procedural history of this case, having conducted a trial in 1999. In brief, Nettis commenced this action by the filing of a complaint on February 2, 1996. (See Docket No. 1). The following month, he filed an amended complaint which contained two claims for relief alleging that the defendants (a) violated CEPA through his termination and (b) failed to pay him for unused vacation time that he had accrued. (Docket No. 5). In March 1997, Your Honor dismissed the CEPA claim. (Docket No. 18). Thereafter, following a jury trial in October 1999, Nettis was awarded more than $20,000 on his vacation pay claim. (Docket No. 54).
On appeal, the Court of Appeals reversed the dismissal of the CEPA claim. Nettis v. Levitt, 241 F.3d 86 (2d Cir. 2001). Following remand, Nettis filed a Third Amended Complaint, (Docket No. 65), which reinstated his CEPA claim and named as defendants Levitt, Rawdon, CSI, and seven additional entities, which are hereinafter referred to, collectively, as "The Custom Shop."
III. Facts
Viewed in the light most favorable to Nettis, the relevant facts may be summarized as follows:
CSI, which is now defunct, operated a chain of retail stores specializing in the sale of custom shirts and other apparel for men. (See Defs.' R. 56.1 Stmt. ¶ 1). Levitt was the chief executive officer, chairman of the board, and sole owner of CSI, and owned or controlled the affiliated companies until he sold his interest in them in September 1997. (Rawdon Dep. at 43-44, Defs.' R. 56.1 Stmt. ¶¶ 3-5).
The companies that purchased The Custom Shop's assets are named as defendants in the Third Amended Complaint but have since petitioned for bankruptcy protection. For that reason, Nettis has abandoned his CEPA claim against them. (See Nettis Opp. Mem. at 2).
Nettis began working for CSI in 1968. (Defs.' R. 56.1 Stmt. ¶ 7; see also Nettis Aff. 2). In 1978, he was promoted to the position of controller. (Defs.' Rule 56.1 Stmt. ¶ 7). Subsequently, in or around 1992 the duties of that position were split, with Nettis becoming controller in charge of retail operations, and Mitchell Spiegel becoming controller of financial reporting. (Nettis Aff. ¶ 23 Ex. S; Rawdon Aff. ¶ 2; Defs.' R. 56.1 Stmt. ¶ 7).
Between October 1994 and August 1995, Nettis sent a series of memoranda to Rawdon, in which he described various instances of financial mismanagement and theft by managers and employees of The Custom Shop's Western Region. (Nettis Aff. ¶ 3 Exs. B-I). Several of Nettis' concerns related to the practices of Mike Borden, The Custom Shop's regional vice president for the Western Region. (See, e.g., id. Exs. B, D, H, I). Although one of the earliest of these memos was copied to Levitt, Rawdon may have intercepted it so that Levitt would not be "unnecessarily agitated." (Id. ¶ 5; Rawdon Dep. at 205-06).
In or around the summer of 1995, Nettis mentioned his concerns to Mrs. Levitt, who was a long-time director of CSI. (Nettis Aff. ¶ 12). Thereafter, at her suggestion, Nettis sent a memo dated August 10, 1995 ("August Memo") to Levitt at his country home in Westport, Connecticut. (Id.; Affidavit of Ellen August, Esq., sworn to on March 15, 2002 ("August Aff."), Ex. 4). Most of the August Memo dealt with violations of The Custom Shop policy having nothing to do with illegal activity. For example, Nettis complained that a manager had granted a customer a credit for a shirt sewn with the wrong color thread in violation of corporate policy. (August Aff. Ex. 4 at ¶ 2(C)). Nettis also observed, however, that several managers, including a regional vice president, had been ignoring his warnings that Reginald Glenn, former manager of a store in Texas, was "stealing" cash. (Id. ¶ 3). Nettis described the situation at The Custom Shop as "out of control." (Id. at 1, 2).
A few days later, Levitt sent Nettis a letter which thanked Nettis for the August Memo, observed that Nettis' "well-documented" allegations required further research, and promised a longer reply following his return to his office in mid-September. (Nettis Aff. ¶ 14 Ex. M). Without Nettis' knowledge, Levitt also provided a copy of the August Memo to Rawdon. In fact, by the time that Levitt's letter was sent, Nettis' termination was already being planned. (Rawdon Dep. at 169, 172-73; see also Levitt Dep. at 93-95; Nettis Aff. Ex. N).
On November 6, 1995, Nettis was called into a meeting with Levitt, Rawdon, and CSI's outside counsel during which he was terminated. (Nettis Aff. ¶ 19). Nettis was further advised that, "[i]n exchange for a full release [he] would be paid as a consultant at one half [his] base salary for the next two years." (Id.). In the course of firing Nettis, Levitt read from a prepared script, which cited several areas of dissatisfaction with Nettis' performance, including an alleged $25 million overstatement of corporate profits. (Id. Exs. Q at 2-3, R at 2-3). Levitt also told Nettis that he had been defending him for many years "without being aware of what was going on," but came to realize that each of four independent auditors had recommended that Nettis be replaced. (Id. Ex. Q at 2). Nettis declined to sign a release and was required to leave his employment by December 1, 1995. (Id. ¶ 19).
Nettis maintains that the justifications for his termination proffered by Levitt were, without exception, pretextual. (Id. ¶¶ 22-44). He argues that the actual reasons for his dismissal were his disclosures of financial irregularities at the Custom Shop and continuing criticisms of Rawdon and others for failing to act. (Id.).
IV. Applicable Law
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Celotex Corp. v. Catrett, 477 U.S. 317,324 (1986). Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Id.; see also Fed.R.Civ.P. 56(e) 1963 Advisory Committee Note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
To defeat a motion for summary judgment, the nonmoving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256.
The Second Circuit has cautioned that summary judgment is often inappropriate in cases where the trier of fact will have to delve into an employer's intent, because intent is an issue as to which direct evidence is rarely available. See, e.g., Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). However, when an employer has explained its conduct and the plaintiff has offered only conclusory assertions in opposition, summary judgment may be granted. See, e., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
B. CEPA
Although the issue is not addressed in their papers, the parties appear to agree that New Jersey law applies to this case because Nettis' office was in New Jersey. See Littman v. Firestone Tire Rubber Co., 715 F. Supp. 90, 91 n. (S.D.N.Y. 1989) ("As plaintiff was employed in defendant's New Jersey office, New Jersey certainly has the greatest interest in ensuring that employers who operate in the state abide by its rules of conduct and not fire whistle-blowers."). Under New Jersey law, employees ordinarily serve at will and, consequently, may be dismissed by their employers at any time.Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397, 643 A.2d 546, 552 (1994) ("In New Jersey, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine."). "CEPA establishes a statutory exception to [this] general rule" to "protect employees who report illegal or unethical work-place activities." Ballinger v. Delaware River Port Auth., 172 N.J. 586, 601, 800 A.2d 97, 106 (2002) (quoting Higgins v. Pascack Valley Hosp., 158 N.J. 404, 417-18, 730 A.2d 327, 334 (1999)). Although several states have promulgated similar protections, CEPA was "described at the time of its enactment as the most far reaching 'whistleblower statute' in the nation." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179, 707 A.2d 1000, 1008 (1998).
Insofar as relevant, CEPA provides that:
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 . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . .;
(b) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of a law, or a rule or regulation promulgated pursuant to law by the employer . . .; or
(c) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning public health, safety, or welfare or protection of the environment.
While subsections (a) and (b), by their terms, require that an employee's whistle-blowing action be undertaken in response to conduct on the part of an "employer," subsection (c) is worded differently. Thus, in keeping with New Jersey's policy of construing remedial legislation liberally, Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431, 650 A.2d 958, 971 (1994), subsection (c) has been read by the New Jersey Supreme Court to cover employees who "object to conduct of coworkers." Higgins, 730 A.2d at 335; see also Nettis, 241 F.3d at 191 ("[T]he New Jersey Supreme Court has now firmly established [in Higgins] that CEPA permits claims for retaliation based on an employee's objections to co-workers' illegal or fraudulent conduct, even if [the] employer is not complicit in that conduct."). Moreover, under subsection (c), the employee's conduct need not relate to a law, or a rule or regulation promulgated pursuant to law, provided that the employee "reasonably believes" that the co-worker's action is "fraudulent or criminal." N.J. Stat. Ann. 34:19-3(c)(2).
To establish a prima facie case under subsection (c)(3) of CEPA, Nettis must show that: (1) he reasonably believed that either CSI or one of his co-workers was engaged in an activity, policy, or practice that was "fraudulent or criminal;" (2) he objected to this misconduct or refused to participate in it; (3) retaliatory action was taken against him; and (4) a causal connection exists between his whistle-blowing or refusal to participate and the retaliatory action. See N.J. Stat. Ann. 34:19-3(c); Costello v. City of Brigantine, 2001 WL 732402, at *10 (N.J. June 28, 2001).
As the Third Circuit has explained, once a prima facie case is established under CEPA
"the burden of production shifts to the defendant to 'articulate some legitimate, nondiscriminatory reason' for its actions." Woodson v. Scott Paper Co., 109 F.3d 913, 920 n. 2 (3d Cir.) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)), cert. denied, 522 U.S. 914 (1997). Once the defendant articulates a legitimate reason for the adverse employment action, the presumption of retaliatory discharge created by the prima facie case disappears and the burden shifts back to the plaintiff. See id.Blackburn v. United Parcel Service Inc., 179 F.3d 81, 92 (3d Cir. 1999) (parallel cites omitted); see also Bowles v. City of Camden, 993 F. Supp. 255, 261 (N.J. 1998) (utilizing "principles from the Title VII landscape in analyzing plaintiff's CEPA claims" due to the similarity between the two statutes).
In the context of a summary judgment motion,
the court must determine whether the plaintiff has offered sufficient evidence for a reasonable jury to find that the employer's proffered reason for the discharge was pretextual and that retaliation for the whistleblowing was the real reason for the discharge. See Sempier v. Johnson Higgins, 45 F.3d 724, 728 (3d Cir. 1995) ("[T]o defeat a summary judgment motion based on a defendant's proffer of a nondiscriminatory reason, a plaintiff who has made a prima facie showing of discrimination need only point to evidence establishing a reasonable inference that the employer's proffered explanation is unworthy of credence."). Typically, the types of evidence that the plaintiff must point to are "inconsistencies or anomalies that could support an inference that the employer did not act for its stated reasons." Id. at 731; see also Kolb [v. Burns, 320 N.J. Super. 467], 727 A.2d [525], 531 [(1999)](citing Third Circuit Title VII case law regarding plaintiff's burden to show pretext at summary judgment stage).Blackburn, 179 F.3d at 93.
V. Discussion
A. CEPA
1. Prima Facie Case
Although many of the topics addressed in Nettis' memoranda to Rawdon and Levitt concern business practices which are alleged to be slipshod, rather than illegal, Nettis did from time to time report conduct which a reasonable finder of fact could consider fraudulent. For example, on January 18, 1995, he suggested to Rawdon that the shortfalls at certain stores were not attributable to "carelessness," but instead resulted from deposits which were being "manipulated." (Nettis Aff. Ex. D). That Nettis was arguably reporting "fraudulent" behavior is evident from Rawdon's handwritten response to this memorandum, in which she directed Nettis to send the appropriate regional vice president a copy of any accusations that a store was manipulating sales figures or misappropriating cash. (Id.).
Similarly, in a July 20, 1995 memo to Rawdon, Nettis described manager Glenn as an employee who had been "taking money in several different ways" and was now being pursued by the Texas Attorney General. (Id. Ex. I).
Finally, in his August Memo to Levitt, Nettis cited Glenn as an "example" of managers who were "not complying with your policy to the extent that in many cases . . . they are literally stealing from you." (August Aff. Ex. 4 at 1).
While Nettis' suggestions of criminal conduct on the part of employees other than Glenn may well have been hyperbole intended to help salvage his job, the Court cannot draw that conclusion as a matter of law at this pretrial stage. Accordingly, Nettis has met the first element of his prima facie case by showing that he reasonably believed that one or more of his co-workers was engaged in fraudulent activity.
Turning to the second required element, Nettis' numerous memos make clear that he was objecting to, and refusing to participate in, the misconduct that he attributed to others. This is sufficient to establish his status as a whistleblower under subsection 3(c) of CEPA. There also is no question that Nettis was the victim of a "retaliatory action" since he was discharged by CSI. See N.J. Stat. Ann. 34:192(e) (defining "[r]etaliatory action" to include the "discharge, suspension or demotion of an employee.").
The final issue is whether Nettis has shown a causal connection between his whistleblowing activity and his discharge. This is a much closer question. Cf. Donofry v. Autotote Sys. Inc., 350 N.J. Super. 276, 291, 795 A.2d 260, 269 (2001) ("As in most CEPA cases, the trial and now the appeal turn on the fourth element: evidence of a causal connection."). As Federal employment law cases establish, the temporal proximity between protected conduct and an adverse employment action alone may permit a finder of fact to infer causation.See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989);Bowles, 993 F. Supp. at 263. Although the Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship," Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001), the Supreme Court has noted that "cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality . . . uniformly hold that the temporal proximity must be 'very close.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (quoting O'Neal v. Ferguson Constr. Co., 237 F.3d 1248,1253 (10th Cir. 2001).
In this case, the process of drafting the formal remarks that Levitt would use in the course of terminating Nettis evidently began in August 1995 — the same month that Nettis bypassed Rawdon by sending a memo to Levitt's home. The defendants argue that this temporal proximity is irrelevant since Levitt actually praised Nettis for bringing financial problems to his attention. (See August Aff. ¶ 6). Nonetheless, a reasonable finder of fact could conclude, on the basis of temporal proximity alone, that the August Memo set the wheels in motion for Nettis' eventual termination.
2. Nondiscriminatory Reason
Once a prima facie showing of a CEPA violation has been made, the burden shifts to the defendants to proffer a nondiscriminatory reason for the plaintiff s discharge. Here, the defendants contend that the testimony of Levitt and Rawdon establishes that Levitt's sole reason for firing Nettis was that he considered Nettis unqualified to serve as The Custom Shop's controller. (Levitt Dep. at 57-58, 144-45; Rawdon Dep. at 141-42). This nondiscriminatory reason overcomes the presumption that Nettis' discharge was improperly retaliatory.
3. Pretext
The burden pendulum therefore swings back to Nettis, who "must raise an issue of fact regarding whether [Levitt's] proffered explanation is pretextual or whether retaliatory discrimination was more likely than not a determinative factor in the decision." McCullough v. City of Atlantic City, 137 F. Supp.2d 557, 573 (N.J. 2001). "As in any cause of action, [Nettis] can meet that burden by means of circumstantial as well as direct evidence, or a combination of the two." Donofry, 795 A.2d at 270.
The prepared remarks that Levitt delivered when he fired Nettis identify a multitude of alleged shortcomings in Nettis' performance. Among the most significant of these was Nettis' alleged admission to Levitt in 1992 that he previously had overstated The Custom Shop's profits by $4-5 million per year for a multi-year period in the late 1980s and early 1990s. (See Nettis Aff. Ex. Q at 2-3). For his part, however, Nettis contends that company profits were never overstated. Instead, Nettis claims that his financial reports simply omitted certain extraordinary expenses, such as Levitt's "several million dollar salary," "Mrs. Levitt's substantial director's salary, and other expenses personal to Levitt." (Id. ¶ 26). Disagreeing with Levitt's accusations, Nettis avers that he "told Levitt all along" that the reports were being prepared in this manner, which was consistent with how the reports were being prepared when he joined the company. (Id.).
Levitt also took Nettis to task for incurring expenses to "network" the accounting department's computers without Levitt's prior approval and then lying to others about whether the project had been approved. (Id. Ex. Q at 4). Once again, Nettis disagrees with this claim, stating that Levitt approved both the decision to undertake this work and the estimated cost. (Id. ¶ 31).
In similar fashion, Nettis' affidavit attacks most, if not all, of the factual assertions that Levitt relied on during the November 6th meeting as purported justifications for his termination. One such justification, at the very beginning of Levitt's prepared remarks, was that Glenn Bernbaum, a former president of CSI, had warned Levitt sixteen years earlier that Nettis was not qualified to be the controller. (Id. Ex. Q at 1-2). Levitt further noted that four independent auditors each had recommended that Nettis be replaced by someone more capable. (Id. at 2). By 1995, however, Nettis was no longer responsible for financial reporting; indeed, those duties had been taken away from him some three years earlier. As Nettis accurately points out, Levitt also was unable to name any of the auditors who allegedly recommended that Nettis be replaced. (See Levitt Dep. 131-32).
Finally, as noted above, another indication that Nettis' termination may have been prompted by his decision to report his concerns directly to Levitt, rather than through Rawdon, is the fact that CSI's counsel began drafting the materials to be used in connection with Nettis' termination the very month that Nettis sent the August Memo.
This is not to say that Nettis has made an overwhelming showing that the defendants' reasons for terminating him were pretextual. Quite to the contrary, the evidence presently before the Court would permit a reasonable finder of fact to draw several conflicting conclusions. First, because of problems of the sort that led to the curtailing of some of his duties, it is conceivable that Nettis was increasingly fearful of being terminated as time went on. If so, the many memos that he wrote in 1994 and 1995, rather than being the "but for" cause of his demise, may simply have been part of an effort to demonstrate his value to an increasingly dubious audience. The fact that this effort failed does not compel the conclusion that his termination was retaliatory.
Second, although there was apparently considerable acrimony between Nettis and Rawdon, Levitt may, as he claims, have reached the decision to terminate Nettis without any input from Rawdon. Moreover, any flaws in the reasoning that Levitt relied upon to justify Nettis' discharge may have more to do with Levitt's advanced age than a desire to prevaricate.
At the time of Nettis' termination, Levitt was 86 years old. (Defs.' Reply Mem. at 5).
It is, of course, also possible that Nettis was fired, as he contends, because he reported financial irregularities directly to Levitt, rather than continuing to present them to Rawdon, who was apparently his direct supervisor. The swiftness with which CSI began to draft papers supporting Nettis' termination once he had made that end run alone lends credence to Nettis' assertion that the August Memo and his other complaints were the cause of his discharge.
Because a reasonable finder of fact could draw any of these conclusions (and perhaps others) from the evidence, the defendants' motion for summary judgment with respect to Levitt, Rawdon, and CSI should be denied.
B. Dismissal of the "Other" Defendants
The second branch of the defendants' motion seeks the dismissal of the defendants other than Rawdon, Levitt, and CSI on the ground that neither the pleadings nor the deposition testimony set forth any basis for the jury to find a CEPA violation on their part.
Remarkably, in their papers, neither Nettis nor the defendants have adduced any evidence, such as payroll stubs, W-2 forms or deposition excerpts, which would enable the Court to determine which of the numerous "Custom Shop" entities actually employed Nettis and compensated him for his work. Thus, Nettis states in his affidavit that he had been employed by "The Custom Shop" for 27 years. (Nettis Aff. ¶ 2). He further alleges that all of the "other entities" are properly named as defendants because he performed services for them, part of his salary at "The Custom Shop" was "earned by working for those entities," and all of his accounting work for them came to an end when he was fired. (Id. ¶ 45). Nowhere in his papers, however, does Nettis indicate which entity (or entities) he is describing as "The Custom Shop." The defendants' papers are similarly vague as to the identity of Nettis' employer.
Paralleling the federal employment discrimination statutes, CEPA prohibits retaliatory action by an "employer" against an "employee." N.J. Stat. Ann. 34:19-3. The statutory definition of an employer does not help resolve who is a potentially liable defendant since it is global in scope and covers every conceivable form that an employer-defendant might take. Id. 34:19-2(a). Nevertheless, the definition of an "employee" is limited to someone "who performs services for and under the control and direction of an employer for wages or other remuneration." Id. § 2(b). Although Nettis avers that he performed accounting services for the constellation of Levitt-controlled companies, including Levitt's personal foundation, there has been no showing that those services were subject to the direction or control of entities other than CSI or that those entities paid him wages or other substantial remuneration.
As a consequence, on the present record, there is insufficient evidence for the Court to conclude that CSI was the only entity of which Nettis was an "employee." Accordingly, this aspect of the defendants' summary judgment motion must be denied.
At trial, Nettis will of course have the burden of establishing the identity of the Custom Shop entity (or entities) by which he was employed. Since this presumably should be relatively easy to determine, I have taken the liberty of entering an order, bearing today's date, directing both sides to submit supplemental affidavits and exhibits within ten days in an effort to establish, for calendar year 1995, which of the corporate defendants (1) paid wages or other remuneration to Nettis, or (2) controlled and directed the services that Nettis performed. If those further submissions indicate that any of the defendants are entitled to summary judgment dismissing Nettis' CEPA claims, I will submit a supplemental report and recommendation to Your Honor.
VI. Conclusion
For the reasons set forth above, the defendants' summary judgment motion should be denied.
VII. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Barbara S. Jones, at the United States Courthouse, 40 Centre Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. Any requests for an extension of time for filing objections must be directed to Judge Jones. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).
ORDER
For the reasons set forth in the Report and Recommendation to Judge Jones bearing today's date, the parties are directed to submit to the undersigned within ten days affidavits and any other evidence which establishes, for calendar year 1995, which of the corporate defendants (1) paid wages or other remuneration to plaintiff Jules Nettis or (2) controlled and directed the services that Nettis performed.
SO ORDERED.