MARTHA PALMER VS. EMPLOYMENT HORIZONS, INC. (L-0358-16, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4373-17T3

MARTHA PALMER,

Plaintiff-Appellant,

v.

EMPLOYMENT HORIZONS, INC.,

Defendant-Respondent.
_____________________________

Submitted May 6, 2019 – Decided July 12, 2019

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0358-16.

Martha Palmer, appellant pro se.

Kluger Healey, LLC, attorneys for respondent (Phillip
G. Ray, on the brief).

PER CURIAM

Defendant Employment Horizons Incorporated is a non-profit corporation

providing vocational opportunities and counseling to individuals with
disabilities. Defendant subcontracted to deliver janitorial services at Picatinny

Arsenal (Picatinny). At all times relevant to this appeal, as required by the New

Jersey Division of Vocational Rehabilitation Services (DVR), defendant

provided "job coaches" to clients placed at the site. Defendant first employed

plaintiff Martha Palmer in 1991, and, in 2005, assigned plaintiff to Picatinny as

a job coach. In March 2015, defendant terminated plaintiff for allegedly

violating the company's confidentiality policy by "disclos[ing] personal

information about [a client] to other employees" and disclosing "extremely

confidential information to [that client] about other clients."

Plaintiff filed a pro se complaint alleging defendant violated the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. In

response to plaintiff's motion to compel discovery and defendant's cross-motion

for entry of a protective order and to extend discovery, the judge entered an

interlocutory order that required defendant to produce five years of redacted case

file notes regarding four of its clients, and the payroll records for a fifth.

Defendant moved for summary judgment at the close of discovery.

I.

The record before the motion judge revealed that plaintiff consistently

received annual bonuses and raises throughout her employment and was never

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demoted, suspended or otherwise suffered an adverse employment action. In

2009, she received a performance review that included an addendum critical of

her interactions with clients. Plaintiff, however, successfully challenged the

evaluation, defendant removed the negative addendum from plaintiff's personnel

file and defendant terminated its author, plaintiff's immediate supervisor at the

time.

Over the years, plaintiff reported several instances of illegal or

inappropriate conduct by clients and staff to her supervisors and outside

authorities. In many instances, she became aware of this information through

conversations with her clients. In 2008-09, for example, she reported a series

of thefts that resulted in the termination of two employees. Plaintiff reported at

least three incidents of alleged sexual assault or harassment against her clients

over the ensuing years. Two resulted in investigations by Picatinny's police

force, and, in all three instances, defendant separated the alleged perpetrators

from the clients.

In early 2015, one of plaintiff's clients, M.P., claimed he was frightened

about working with another client, J.I., because J.I. brought drugs and alcohol

to the base. Plaintiff reported this to her supervisor, Joseph Smith, and requested

permission to go to Picatinny's police department with this information. Smith

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spoke directly to M.P., apparently assuaged his concerns, and chastised plaintiff

about her request to involve law enforcement. Plaintiff acknowledged that it

was preferable to investigate the incident in-house before involving an outside

agency. There was no written reprimand or other disciplinary action against

plaintiff.

Shortly thereafter, J.I. filed a formal complaint with defendant's human

resources (HR) department.1 He alleged plaintiff had revealed personal

information about him to others and had told him about other clients' private

information. Another client, R.C., confirmed that he was present during

conversations plaintiff had with J.I., in which she allegedly told both about

various sexual liaisons between clients and instances of sexual harassment of

clients. Defendant's HR representative documented J.I.'s and R.C.'s disclosures

in memos she prepared.

On March 16, 2015, defendant terminated plaintiff. Citing the allegations

by J.I., defendant stated plaintiff's violation of its Code of Ethics was "so severe

that [plaintiff] could no longer carry out the duties of [her] position." At her

1
At her deposition and in response to defendant's statement of undisputed
material facts, see Rule 4:46-2(a), plaintiff acknowledged having had a personal
relationship of short duration with J.I. while being his job coach.
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deposition, plaintiff acknowledged that violating defendant's confidentiality

policy was, in and of itself, a terminable offense.

Plaintiff did not deny the accusation during the termination meeting, nor

did she advise defendant of a text message plaintiff received from M.P. In that

text, M.P. denied getting any confidential information from plaintiff, said J.I.

was the source of such information and claimed plaintiff was going to be

"throw[n] . . . under the bus." At her deposition, plaintiff testified the

termination "meeting was a blur" because she was in shock. She has denied

sharing any confidential information or violating defendant's policy. Within

days of her termination, plaintiff contacted DVR and the Department of Defense

(DOD), complaining that defendant was providing job-coaching services to

three ineligible individuals.2

The motion judge reserved decision on defendant's summary judgment

motion following oral argument. In a written decision that accompanied her

order granting the motion, the judge reviewed the salient case law. Citing our

decisions in Massarano v. New Jersey Transit, 400 N.J. Super. 474, 492 (App.

2
In her deposition, plaintiff admitted that J.I. did not require job-coaching
services, yet she completed the necessary "paperwork" on his behalf. Neither
DVR nor DOD took any adverse action against defendant as a result of plaintiff's
complaints.
A-4373-17T3
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Div. 2008), and Klein v. University of Medicine and Dentistry of New Jersey,

377 N.J. Super. 28, 38-39 (App. Div. 2005), the judge explained the burden-

shifting analysis to be applied if plaintiff established a prima facie CEPA

violation.

The judge found that even though plaintiff "may have internally reported

various . . . seemingly unsavory aspects of her employment," she had not

suffered any adverse employment action prior to her termination. Although

plaintiff contended that the executive director had a vendetta against her, as

evidenced by the 2009 negative evaluation, plaintiff successfully challenged that

finding, and defendant removed it from her personnel file. The judge concluded

plaintiff failed to "establish a causal connection between her alleged

whistleblowing and [her] termination." In addition, the judge concluded that the

motion evidence demonstrated defendant had a legitimate reason for terminating

plaintiff, and plaintiff failed to show that the stated reason, i.e., disclosure of

clients' confidential information, was a pretext.

The judge characterized the second count of the complaint as one alleging

the "negligent infliction of emotional distress."3 She concluded this claim was

3
The second count of the complaint alleged defendant caused plaintiff
emotional distress, financial loss, public humiliation and embarrassment

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barred by the exclusivity provision of the New Jersey Workers' Compensation

Act, N.J.S.A. 34:15-8. The judge entered an order granting defendant summary

judgment and dismissing the complaint.

Plaintiff moved for reconsideration. In a short written opinion, the judge

explained that plaintiff asserted new evidence warranting reconsideration. This

new evidence included complaints plaintiff made alleging defendant was in

violation of its government contracts and related regulations, and her complaints

were still under active investigation.4 However, the judge rejected this as

providing any basis to reconsider her earlier grant of summary judgment. She

reasoned that "[d]efendant met its burden by articulating non-retaliatory reasons

for [p]laintiff's termination[,]" and plaintiff's motion was nothing more than "a

second bite at the apple."

Plaintiff now appeals, arguing the judge improperly granted summary

judgment because plaintiff presented a prima facie case that defendant violated

CEPA and also rebutted defendant's proffered reason for her termination.

through the "negligence and/or unethical and unprofessional actions" of its
employees. During oral argument on earlier discovery motions, plaintiff
conceded the only cognizable claim was the alleged CEPA violation.
4
The record does not include the reconsideration motion or supporting
documents. Our review is limited, therefore, to the judge's written opinion
denying the motion.
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Plaintiff also contends the judge incorrectly dismissed the second count of her

complaint pursuant to N.J.S.A. 34:15-8. Additionally, plaintiff argues

defendant's dilatory and obstructionist conduct during discovery, which the

judge failed to address adequately, denied plaintiff the opportunity to present

critical testimony. Having considered these arguments in light of the record and

governing legal principles, we affirm.

II.

We review the grant of summary judgment applying the same standard as

the motion judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich Am.

Ins. Co., 210 N.J. 512, 524 (2012)). Providing all favorable inferences to the

non-moving party, Rule 4:46-2(c), our "task is to determine whether a rational

factfinder could resolve [an] alleged disputed issue in favor of the non-moving

party." Perez v. Professionally Green, LLC, 215 N.J. 388, 405-06 (2013). A

party opposing summary judgment, however, must "do more than 'point[] to any

fact in dispute' in order to defeat summary judgment." Globe Motor Co. v.

Igdalev, 225 N.J. 469, 479 (2016) (alteration in original) (quoting Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). In other words,

disputes about facts that are "immaterial or of an insubstantial nature" provide

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no basis to deny the moving party summary judgment. Id. at 480 (quoting Brill,

142 N.J. at 529).

"An issue of fact is genuine only if, considering the burden of persuasion

at trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." R. 4:46-2(c). "The practical effect

of [Rule 4:46-2(c)] is that neither the motion court nor an appellate court can

ignore the elements of the cause of action or the evidential standard governing

the cause of action." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We owe no

deference, however, to the trial court's legal analysis or interpretation of a

statute. The Palisades At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC,

230 N.J. 427, 442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

A.

Although plaintiff's complaint did not specify which section of CEPA she

alleged that defendant violated, her appellate brief argues the motion record

presented a prima facie violation of N.J.S.A. 34:19-3(c). That subsection bars

retaliation against an employee who, among other things,

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 [o]bjects 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 . .
.;

....

(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(c).]

To establish a prima facie CEPA claim under this subsection, plaintiff must

establish she: (1) reasonably believed defendant's conduct was in violation of a

law, rule, regulation, or public policy mandate; (2) performed a whistle-blowing

activity identified in N.J.S.A. 34:19-3; and (3) suffered an adverse employment

action; (4) which was causally connected to the whistle-blowing activity.

Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (citing Kolb v. Burns, 320 N.J.

Super. 467, 476 (App. Div. 1999)). When a plaintiff cannot establish any one

of these elements, dismissal of the CEPA claim is appropriate. See Hitesman v.

Bridgeway, Inc., 218 N.J. 8, 29 (2014).

CEPA "does not insulate the complaining employee from discharge or

other disciplinary action for reasons unrelated to the complaint." Higgins v.

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Pascack Valley Hosp., 158 N.J. 404, 424 (1999). Here, the judge concluded that

plaintiff failed to demonstrate a genuine factual dispute that her whistle-blowing

activity was causally related to her termination.

Plaintiff argues she continued to advocate for her clients over the years by

notifying defendant and others of prohibited conduct, up to and including the

incident between M.P. and J.I. in early 2015, shortly after which defendant

terminated her.5 "'[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 West 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)).6 "Only where the facts of the particular case are so 'unusually

suggestive of retaliatory motive' may temporal proximity, on its own, support

an inference of causation." Ibid. (quoting Krouse, 126 F.3d at 503). "Where the

5
However, plaintiff, in her brief, implies that a six-week delay between J.I.'s
report to HR and her actual termination lends suspicion to defendant's stated
reason for her termination.
6
Although Young was a suit brought under New Jersey's Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, our courts apply the same
analytical framework to CEPA claims. Donofry v. Autotote Sys., Inc., 350 N.J.
Super. 276, 290 (App. Div. 2001).
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timing alone is not 'unusually suggestive,' the plaintiff must set forth other

evidence to establish the causal link." Ibid. (citing Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 280-81 (3d Cir. 2000)).

However, despite a number of other complaints she made to defendant and

outside agencies, which were investigated and addressed, albeit not always to

plaintiff's satisfaction, plaintiff never suffered an adverse employment action

prior to her termination. In fact, she continued to receive positive employment

reviews after engaging in several whistle-blowing activities. We agree with the

motion judge that plaintiff failed to demonstrate a causal relationship.

Nevertheless, we also consider whether plaintiff introduced sufficient

evidence to demonstrate a genuine factual dispute as to whether the proffered

reason for her termination was a pretext. In this regard, temporal proximity may

serve to discredit defendant's explanation for termination. See, e.g., Parker v.

Hahnemann Univ. Hosp., 234 F. Supp.2d 478, 493 (D.N.J. 2002) (noting

temporal proximity is relevant to both issues).

Plaintiff argues the text message from M.P., an interview HR conducted

with M.P. in January 2015, and her own post-termination statements

demonstrate she did not violate company policy, and therefore, defendant's

proffered reason was pretextual. However, to defeat summary judgment,

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"plaintiff must show that the 'retaliatory discrimination was more likely than not

a determinative factor in the decision.'" Donofry, 350 N.J. Super. at 293

(quoting Kolb, 320 N.J. Super. at 479).

Plaintiff conceded that she never showed M.P.'s text to her supervisor, HR

or defendant's executive director. The document that recounts HR's

conversation with M.P. in January does not, as plaintiff claims, demonstrate she

was not a source of confidential information about other clients; it only

demonstrates that M.P. said others, including J.I., disclosed personal

information. Because the burden of demonstrating a genuine factual dispute

about defendant's motive always remained with plaintiff, she needed to "do more

than simply show that the employer's reason was false." Viscik v. Fowler Equip.

Co., 173 N.J. 1, 14 (2002). She failed to do so.

We affirm the grant of summary judgment on plaintiff's CEPA claim.

III.

We agree with plaintiff that the exclusivity provision of N.J.S.A. 34:15 -

8, was not applicable to her claims for emotional distress, whether pled

separately in the second count of her complaint or subsumed within the full array

of damages available under CEPA. See N.J.S.A. 34:19-5 ("All remedies

available in common law tort actions shall be available to prevailing [CEPA]

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plaintiffs."). However, having concluded the judge properly granted defendant

summary judgment on the CEPA claims, it follows that plaintiff's claims for

emotional distress were properly dismissed. See Mehlman v. Mobil Oil Corp.,

291 N.J. Super. 98, 139 (App. Div. 1996) (holding CEPA claim was inextricably

linked factually to the plaintiff's other tort claims and subject to CEPA's waiver

provision, N.J.S.A. 34:19-8), aff'd, 153 N.J. 163 (1998).

The balance of plaintiff's arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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