NOT FOR PUBLICATION WITHOUT THE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-2514-15T1
CAROLYN GILLIAM,
Plaintiff-Appellant,
v.
ATRIUM AT PRINCETON, LLC,
t/a ATRIUM HEALTH,
Defendant-Respondent.
___________________________
Submitted May 24, 2017 – Decided August 10, 2017
Before Judges Fuentes, Gooden Brown and
Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-2264-13.
Carolyn Gilliam, appellant pro se.
Drinker Biddle & Reath, LLP, attorneys for
respondent (Maria L.H. Lewis, of counsel and
on the brief).
PER CURIAM
This is a wrongful discharge case. Carolyn Gilliam worked
as an at-will employee in the housekeeping department at the Atrium
at Princeton, LLC (Atrium) until she was fired for cause on
February 29, 2012. Following her termination, plaintiff filed a
two-count complaint alleging common law wrongful discharge and
wrongful termination in violation of the law against
discrimination (LAD) against her former employer. She voluntarily
dismissed the LAD claim. She appeals from the order of the Law
Division granting Atrium's summary judgment motion.
Over the course of her employment at Atrium which commenced
in 1998, plaintiff was disciplined on eighteen separate occasions,
including three times in February 2012. She was terminated because
she received written warnings for failing to clean out the dryer
vents in the laundry room and using vulgar language and ethnic
slurs against her coworkers. Around the same time, Gilliam claimed
in writing that based upon statements alleged to have been made
by another coworker, she believed that a different coworker was
working in the United States illegally. Following an
investigation, Atrium determined the allegation was unfounded.
Gilliam alleges she was terminated for reporting the alleged
illegal work status of a coworker.
In opposing the motion for summary judgment, Gilliam asserted
there was no disciplinary action issued or planned contemporaneous
with the incident and that the investigation was launched only
after her supervisor learned of Gilliam's allegation concerning
the coworker's immigration status. Gilliam relied on allegedly
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incriminating statements made by her supervisors purportedly
establishing the true motive for her termination. The court
rejected Gilliam's assertions and determined that she failed to
put forth any credible evidence that her termination was
retaliatory to support her claim of discrimination and establish
a claim for wrongful discharge. Rather, the court determined
Atrium showed legitimate reasons for terminating her,
specifically, her substantial history of disciplinary infractions,
including the most recent ones in February 2012.
On appeal, Gilliam argues that sufficient material factual
disputes existed to withstand summary judgment, the court made
impermissible credibility determinations in granting the motion,
and the court erred in determining that she failed to establish a
prima facie case. We affirm.
Since the matter involves a motion for summary judgment, we
glean the facts from the pleadings, affidavits, and depositions
before the court on motion giving the plaintiff the benefit of all
reasonable inferences that may be drawn in her favor. Rule 4:46-
2.
Atrium hired plaintiff in the housekeeping department in, or
about July 1998. Around 2008, Michael Williams became plaintiff's
supervisor. Plaintiff claims Williams harassed her by issuing
disciplines for infractions she did not commit. Plaintiff never
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reported the alleged harassment to Williams' supervisor, Mark
Sorrento. In February 2012, Williams issued plaintiff three
disciplinary notices for workplace violations. On February 24,
plaintiff received a written warning for failure to clean out
dryer vents in the laundry room. On February 29, Williams issued
plaintiff a disciplinary notice for workplace violations,
including using vulgar language against coworkers. Between the
February 24 and 29 notices, plaintiff wrote a written response to
the notices of disciplinary action alleging a coworker named
"Jane1" did not have the proper work papers for employment in the
United States. While defendant was determining the discipline to
be imposed on plaintiff, plaintiff went to Sorrento on March 5,
2012 and advised him of Jane's alleged illegal status. Sorrento
investigated the allegation and determined it to be unfounded.
Thereafter, Sorrento made the determination to fire plaintiff for
the vulgar language used with coworkers.
Essentially, plaintiff claims the termination was not related
to the Sorrento investigation of the February 25, 2012 incident,
but was fabricated sometime after her meeting with Sorrento on
March 5. Plaintiff presents, in support of her allegation that
the reasons for her termination were fabricated, that she did not
1
A pseudonym was used to protect the privacy rights of this
individual.
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receive any notice of discipline on February 25. The notice of
discipline she did receive was dated February 29. The notice
dated February 29, 2012 was not received until March 7. Plaintiff
cites as corroboration the fact that Williams told her to report
to work on February 27.
Plaintiff questions the nature of the investigation
conducted, and questions why, if Williams obtained the statements
of three coworkers regarding plaintiff's vulgar language and
witnessed plaintiff in the laundry room on February 27, 2012,
contrary to his order, she was told to return to work on February
27 and not fired until February 29, 2012.
Plaintiff further questions why, when she returned to work
on February 27 (and was told to go home by Williams who certified
he forgot that Monday was plaintiff's regular day off and that she
had taken a personal day for Tuesday), she was not fired when
Williams had the opportunity to do so if the firing was related
to the incident of February 25. Stating that the failure to fire
before February 29 is "illogical", plaintiff urges the court to
find the delay could be the basis for a reasonable inference that
the reason given for her termination was pre-textual.
The sole basis for her argument occurred during her meeting
with Sorrento and Williams, when Sorrento pointed to the
disciplinary action issued on February 25, 2012, and said, "I got
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a problem with this, this is when Corporate is going to have a
problem." According to plaintiff, shortly thereafter, Williams
stated, "I didn't hire Jane, she was here when I got here."
Following that exchange, the meeting ended. Plaintiff's theory
is that Sorrento's fear of corporate's reaction to plaintiff's
complaint, and how it would reflect on him, was Sorrento's motive
to terminate her. Plaintiff does not explain how, after her
allegation was proven unfounded, corporate would have a problem
which would have reflected poorly on either Williams or Sorrento.
Plaintiff also claims defendant abandoned a long-standing
system of progressive discipline to fire her. She argues a
reasonable inference can be made that "something out of the
ordinary" occurred which "compelled management to forgo their
progressive disciplinary system and terminate Ms. Gilliam on her
first offense [for vulgar language] since it was never done
before."
Plaintiff argues the trial court "ignored evidence that there
was most likely no investigation conducted on the day of the
incident and ignored witness testimony proffered by plaintiff."
The testimony to which plaintiff refers, is that Williams never
stated that plaintiff was being sent home on February 25, 2012 as
part of any investigation. Instead, Williams testified that
plaintiff was sent home due to her behavior. Further, plaintiff
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asserts that the statements made by Sorrento and Williams on
February 27 and 28 both allude to facts which show plaintiff's
termination was based upon her complaint against Jane. According
to plaintiff, these statements go to Sorrento's and Williams'
credibility regarding material facts which should have been
determined by a jury.
We review a trial court's grant of summary judgment de novo.
Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403,
414 (2016). "[The] trial court's interpretation of the law and
the legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm., 140 N.J. 366, 378 (1995). Summary judgment is
appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Rule
4:46-2(c).
We must "consider whether the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party in consideration of the applicable evidentiary
standard, are sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving party."
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Under the common law, in the absence of an employment
contract, employers or employees have been free to terminate the
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employment relationship with, or without cause. Pierce v. Ortho
Pharmaceutical Corp., 84 N.J. 58, 65-66 (1980). In Pierce, our
Supreme Court recognized a cause of action to provide a remedy for
employees who are wrongfully discharged, while balancing the
interests of the employee, the employer and the public. Id. at
71. The Court found an employee who is wrongfully discharged may
maintain an action in tort "based upon the duty of an employer not
to discharge an employee who refused to perform an act that is a
violation of a clear mandate of public policy." Id. at 72. In
Tartaglia v. UBS Painewebber, Inc., 197 N.J. 81 (2008), the Court
addressed Pierce in light of the passage, subsequent to Pierce,
of CEPA. The Court noted that the legislation contained an
election of remedy provision, and that the common law remedy
recognized in Pierce continued to exist side-by-side with the
statutory one.
Tartaglia established a plaintiff is not required to make a
complaint to an outside authority, although doing so would
"ordinarily be a sufficient means of expression" while a passing
remark to coworkers, or a complaint to an intermediate supervisor
would not. Tartaglia, supra, 197 N.J. at 109. We assume for
purposes of this appeal that plaintiff's complaint to Sorrento
suffices to meet the expression threshold. However, Tartaglia
holds that "an employer remains free to terminate an at-will
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employee who engages in grousing or complaining about matters
falling short of a clear mandate of public policy, or who otherwise
interferes with the ordinary operation of the workplace by
expressions of personal views on matters of no real substance."
Ibid.
Other jurisdictions have held an employee who is terminated
for reporting his employer was hiring unauthorized aliens contrary
to 8 U.S.C.S. § 1324a has a wrongful discharge claim. See
California Court of Appeals case, Jie v. Liang Tai Knitwear Co.,
89 Cal. App. 4th 654 (2001) (court upheld plaintiffs' claims for
wrongful termination based on retaliation after being terminated
for reporting defendants to Immigration and Naturalization
Services (INS), who raided defendants' business and arrested
approximately forty percent of defendants' labor force as
undocumented). Here, Judge Anthony M. Massi found plaintiff failed
to show "there was an objectively reasonable basis to believe
Jane's employment status was illegal, as it was based on
information plaintiff received from another coworker."
The court in Tartaglia made clear that "[b]aseless complaints
or expressions of purely personal views about the meaning of public
policies will not meet the test for a "clear mandate", regardless
of the manner or mode in which they are voiced. Tartaglia, supra,
197 N.J. at 109.
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We affirm substantially for the reasons embodied in Judge
Massi's January 8, 2016 opinion and March 4, 2016 amplifying
statement pursuant to R. 2:5-1(b).
Affirmed.
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