NOT FOR PUBLICATION WITHOUT THE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-1917-18T1
THOMAS BRODOWSKI,
Plaintiff-Appellant,
v.
HUDSON COUNTY
COMMUNITY COLLEGE,
and DR. GLEN GABERT,
Defendants-Respondents.
__________________________
Argued on September 22, 2020 – Decided January 8, 2021
Before Judges Gilson, Moynihan, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2418-16.
Deborah L. Mains argued the cause for appellant
(Costello & Mains, LLC, attorneys; Deborah L. Mains,
on the brief).
Scott V. Heck argued the cause for respondents
(Gordon Rees Scully Mansukhani, LLP, attorneys;
Scott V. Heck, of counsel and on the brief).
PER CURIAM
Plaintiff Thomas Brodowski was suspended and, less than two months
later, terminated from his position as vice president of administrative services
at Hudson County Community College (the College) because, according to his
employer, he used his College-supplied vehicle for personal use in violation of
the College's code of ethics. He sued the College and its president, Dr. Glen
Gabert, alleging they had violated the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14. He appeals from the motion judge's order
granting summary judgment to both defendants and dismissing his complaint
with prejudice.
Our Supreme Court has recognized, "as remedial legislation, CEPA
should be liberally construed." Lippman v. Ethicon, Inc., 222 N.J. 362, 381
(2015). Through that lens, we review de novo the evidence presented on a
motion for summary judgment in the light most favorable to plaintiff, Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-37 (1995); Woodlands Cmty.
Ass'n v. Mitchell, 450 N.J. Super. 310, 314 (App. Div. 2017), and affirm in part
and reverse in part.
CEPA prohibits an employer from taking "any retaliatory action against
an employee because the employee . . . [d]isclose[d] . . . to a supervisor . . . an
activity, policy or practice of the employer . . . that the employee reasonably
A-1917-18T1
2
believe[d] . . . [was] in violation of a law, or a rule or regulation promulgated
pursuant to law," N.J.S.A. 34:19-3(a)(1), or "[o]bject[ed] to, or refuse[d] to
participate in any activity, policy or practice which the employee reasonably
believe[d] [was] in violation of a law, or a rule or regulation promulgated
pursuant to law," N.J.S.A. 34:19-3(c)(1).
To establish a prima facie claim under CEPA, a plaintiff must
demonstrate:
(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.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); see
also Lippman, 222 N.J. at 380.]
Under the burden-shifting analysis applied to CEPA claims, "once [the]
plaintiff establishes a prima facie case of retaliatory discharge, the defendant
must then come forward and advance a legitimate reason for discharging [the]
A-1917-18T1
3
plaintiff." Zappasodi v. State, Dep't of Corr., Riverfront State Prison, 335 N.J.
Super. 83, 89 (App. Div. 2000). If a legitimate reason is proffered, the "plaintiff
must raise a genuine issue of material fact regarding whether the employer's
proffered explanation is pretextual or whether[] the 'retaliatory discrimination
was more likely than not a determinative factor in the decision.'" Kolb v. Burns,
320 N.J. Super. 467, 479 (App. Div. 1999) (quoting Bowles v. City of Camden,
993 F. Supp. 255, 262 (D.N.J. 1998)).
Plaintiff alleged he performed a series of whistleblowing activities
regarding: (1) a College employee, Joseph Torturelli, who allowed a custodial
contractor to fraudulently bill the College for supplies and services in
contravention of its contract with the College, and plaintiff's refusal to yield to
pressure to rescind Torturelli's resignation; (2) the award of a project-
management services contract to MAST Construction without bidding as
required under Title 18A1 or the failure to award that contract to the lowest
bidder; and (3) fraud by faculty members overbilling the college.
The dismissal of plaintiff's complaint was the second time the motion
judge had granted summary judgment to defendants. He first granted summary
judgment finding plaintiff's admitted use of his College-supplied vehicle
1
Public Schools Contracts Law, N.J.S.A. 18A:18A-1 to -60.
A-1917-18T1
4
violated provisions set forth in the College Employee Handbook prohibiting the
personal use of such vehicles and "was a legitimate, nonretaliatory reason for
. . . plaintiff's ultimate termination." The judge determined none of the protected
activities alleged by plaintiff was "a significant reason for the termination."
On plaintiff's motion, the judge thereafter reconsidered that ruling and
reinstated plaintiff's complaint, finding Gabert's deposition testimony, taken two
days prior to oral argument on the original summary judgment motion, 2 revealed
new evidence that Gabert's personal use of his College-supplied vehicle was not,
as he had stated, authorized by his contract with the College, thus creating
disputed factual issues: whether plaintiff's personal use was also authorized and
if defendants' reason for termination was a pretext.
Defendants moved for reconsideration of that order, arguing that even
with the new evidence, plaintiff had failed to establish the prima facie elements
of a CEPA claim. In a written decision the motion judge recapped that in his
initial grant of summary judgment he had not found plaintiff's alleged
whistleblowing activities were "significant reasons for termination[,] and that
2
In his oral decision on plaintiff's motion for reconsideration, the judge stated
Gabert's deposition was taken after the July 20, 2018 argument on the original
motion. The deposition transcript provided in the record lists the date as July
18, 2018.
A-1917-18T1
5
the termination was because of the unauthorized use of his vehicle." He noted
that in his original decision, he had not found plaintiff established a prima facie
case and instead considered evidence relating to the nondiscriminatory reason
for termination. The judge said he "did not correctly apply the law relating to
CEPA claims, specifically that the prima facie elements of CEPA must be met
before [he] analyzes any legitimate non[]discriminatory reason for the
termination." The judge also concluded evidence that Gabert "was not
specifically given permission to drive his car for personal use . . . [did] not
establish that a causal connection exist[ed] between the whistleblowing activity
and the adverse employment action."
We review a grant of summary judgment using the same standard that
governs the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.
Co., 234 N.J. 459, 472 (2018). Summary judgment will be granted when "the
competent evidential materials submitted by the parties," viewed in the light
most favorable to the non-moving party, show that there are no "genuine issues
of material fact" and that "the moving party is entitled to summary judgment as
a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014); accord R. 4:46-2(c);
see also Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017).
"[C]onsidering the burden of persuasion at trial, the evidence submitted by the
A-1917-18T1
6
parties on the motion, together with all legitimate inferences therefrom favoring
the non-moving party," Bhagat, 217 N.J. at 38; see also Grande, 230 N.J. at 24,
we conclude there are genuine issues of material fact that should be submitted
to the trier of fact.
In establishing that he or she reasonably believed there was a violation by
the employer of "either a law, rule[] or regulation promulgated pursuant to law,
or a clear mandate of public policy," Dzwonar, 177 N.J. at 462, a plaintiff is not
required "to show that a law, rule, regulation or clear mandate of public policy
actually would be violated if all the facts he or she alleges are true. Instead, a
plaintiff must set forth facts that would support an objectively reasonable belief
that a violation has occurred." Id. at 464. Whether the employee has identified
a law or clear mandate of public policy is an issue of law for the court. Mehlman
v. Mobil Oil Corp., 153 N.J. 163, 187 (1998).
Inasmuch as it is not contested that plaintiff's suspension and subsequent
termination were adverse employment actions, we focus on whether the
evidence shows a genuine issue of material fact as to a causal connection
between the protected activity and the adverse employment action. Our analysis
compels an assessment of the totality of the circumstances that preceded
defendants' decision to suspend then terminate plaintiff and a discrete review of
A-1917-18T1
7
each of plaintiff's protected activities. Regan v. City of New Brunswick, 305
N.J. Super. 342, 345 (App. Div. 1997), abrogated on other grounds by Dzwonar,
177 N.J. 451.
Defendants vigorously dispute the evidence supporting plaintiff's alleged
whistleblower activities, and they argue there is not any factual support for those
allegations. We agree with those arguments as they relate to plaintiff's claimed
whistleblowing of inaccurate faculty contracts but disagree as to plaintiff's other
protected activities. Viewing the evidence favorably to plaintiff, the record facts
establish a prima facie CEPA claim and a retaliatory termination sufficient to
warrant denial of summary judgment as to claims related to the custodial and
MAST contracts. We review that evidence.
Plaintiff alleged he learned Torturelli, without consulting the College's
counsel, deviated from the terms of a contract with a custodial contractor that
provided the contractor would bill by the hour and would provide custodial
supplies. Instead, the contractor billed the College by square foot and charged
the College for the supplies. Plaintiff reported the deviation to the College's
chief financial officer, John Sommers, and requested he perform an audit. The
audit found the College had been substantially overbilled. Plaintiff notified
College counsel Sheri Siegelbaum of Torturelli's actions and contacted the then
A-1917-18T1
8
director of human resources, Randi Miller, about further investigation of the
alleged fraud on the College.
Torturelli took extended leaves from his job before resigning in June 2015.
Gabert and College chairman of the board, William Netchert, pressured plaintiff
to rescind Torturelli's resignation. Because of Torturelli's role in the fraudulent
billing, plaintiff voiced his objection to their overtures to the College executive
director of human resources, Vivyen Ray, as well as Gabert, Siegelbaum, Miller,
Sommers and Veronica Zeichner, the College's chief financial officer.
Plaintiff does not allege anyone from the College, except Torturelli, had
any role in the deviation from the contract terms that resulted in the overbilling
to the College. In their merits brief, defendants argue plaintiff "did not even
bother to look into who was responsible for the alleged billing error or address
the fact that the person responsible for the billing error predated T orturelli."
That not only signals the overbilling was a long-standing practice, but also
provides evidential support for plaintiff's allegations. Further, Torturelli was
the College director of facilities. And he was not charged by the College
following the revelation. That the president and chairman of the board pressured
plaintiff to rescind Torturelli's resignation provides evidence that plaintiff's
employer countenanced the practices that resulted in the overbilling. Plaintiff
A-1917-18T1
9
voiced objections to various College administrators, including Gabert, to the
rescission of Torturelli's resignation because of his role in the overbilling .
Defendants assert Netchert denied exerting any pressure; or that the
contract was never changed; or any overbilling may have been a mistake, not
fraud; or Torturelli's resignation had nothing to do with the overbilling matter
and the decision to reinstate him was not put to a vote; or employees other than
Torturelli were responsible for the deviations. Those assertions, however,
should not have been considered under the standards for deciding a summary
judgment motion. Except for the contract not being changed—but deviated
from—they are disputed facts, not considered in the light most favorable to
plaintiff, and involve credibility determinations that must be made by the trier
of fact.
Like defendants, we cannot reconcile plaintiff's claim that the College
awarded a project-management contract to MAST Construction, whose
president sat on the College's architectural advisory committee, without putting
the contract out for bid with plaintiff's contention that he "attempted to select
another company for a project, because that company had a lower bid." But the
selection of MAST instead of the lowest bidder in contravention of N.J.S.A.
18A:18A-4(a)—combined with plaintiff's objection thereto, plaintiff's objection
A-1917-18T1
10
to MAST's president sitting on the committee that chose the contractor,
Netchert's insistence on MAST and Gabert's backing of MAST—evidences
plaintiff's whistleblowing an activity he believed violated law and the law's
underlying public policy. Whether, as defendants contend, plaintiff approved
of MAST is, in light of plaintiff's contended objections, disputed evidence that
cannot support the grant of summary judgment.
We agree, however, with defendants' argument that there is insufficient
evidence to support plaintiff's whistleblowing activities with regard to alleged
fraudulent practices by faculty. Unlike plaintiff's allegations about the two other
protected activities, which are supported by evidence other than plaintiff's
complaint and deposition testimony, we discern no other evidence to support his
averment that he: reviewed all faculty contracts; "discovered" inaccuracies in
approximately 130 of 470 contracts, and faculty members—particularly adjunct
professors—"were getting paid more than they should have"; discovered adjunct
professors "were putting in for compensation for work" for which they were not
entitled to compensation; and submitted an audit report to Gabert and Ray.
But the evidence, notably plaintiff's deposition testimony, gainsays those
allegations. Plaintiff testified "[s]omeone . . . came to [him] and showed [him]
that an adjunct" was making what he thought was an exorbitant amount for
A-1917-18T1
11
summer courses she was teaching. He later admitted in deposition that
"someone," who he thought was an accountant who worked for the College
finance department, actually went to her supervisor, Bob Cruz, not plaintiff.
When asked if Cruz came to him, the following colloquy ensued:
[Plaintiff:] Well, [Cruz] and Veronica [Zeichner] were
looking at it and [Zeichner] came to me.
[Defense counsel:] Okay. And what was the specific
discussion about this particular teacher?
[Plaintiff:] Well, it was really that she—the question I
had asked is how can she make $34,000 for five weeks'
worth of work?
[Defense counsel:] And did anyone ever give you an
answer?
[Plaintiff:] Yes, they did. They looked at—they looked
at the courses that she was teaching, and there was a list
of courses in course development. There was an Excel
spreadsheet put together and the courses that she was
teaching that summer, as well as the other adjuncts.
[Defense counsel:] Okay. And was her work for the
college, did that justify a $34,000 stipend?
[Plaintiff:] In my eyes, no, and in the CFO's eyes, no.
[Defense counsel:] So with that being said that you
didn't believe this teacher was entitled to $34,000, what
was done with that information?
A-1917-18T1
12
[Plaintiff:] That information was, basically, what we
decided—we informed the vice president of [a]cademic
[a]ffairs—
[Defense counsel:] Dr. [Eric] Friedman?
[Plaintiff:] —Dr. Friedman, and we also decided to go
ahead and audit the fall contracts that were coming up.
It is clear plaintiff overstated his involvement which was tangential at
best. As plaintiff admitted, Cruz and Zeichner "looked at" the $34,000 payment
for the summer courses. His testimony that "we" informed Friedman and "we
also decided to go ahead and audit the fall contracts" is not supported by any
evidence. Tellingly, plaintiff admitted he did not know if the teacher was
reprimanded, did not have any discussions about the issue with Friedman and
never followed up with anyone about that issue.
As to the audit of the fall courses, plaintiff admitted at deposition that
Seidman, using internal staff and a consultant, led the audit that revealed there
were 130 contracts that were inaccurate. Plaintiff was told about the
inaccuracies by the accountant from the finance department when he asked her ,
"[w]ell, how's the audit going?" Moreover, plaintiff admitted he never saw the
spreadsheet setting forth the 130 inaccuracies. He said he "never was given the
specifics on the 130 contracts" and "never saw the data." Plaintiff said the
accountant did not tell him when the spreadsheet would be completed. In fact,
A-1917-18T1
13
before he was suspended, plaintiff did not even know if it was ever completed
and did not know if the audit was ever presented to Gabert. Plaintiff's allegation
that he "submitted this audit report to both Gabert and Ray" is contradicted by
his own testimony.
In his merits brief, plaintiff points to an email Friedman sent to him,
contending Friedman told him "to be 'cautious' when auditing teachers'
contracts." Although it does not help that plaintiff did not include in the record
his email to which Friedman was evidently responding, the plain language of
Friedman's email does not support plaintiff's contention. Friedman's caution
related to the finance department acting without input from the academic affairs
department: "This has to come from academic affairs and finance together.
[Zeichner] and you should not clarify without academic affairs; it will be seen
as finance running the show on its own and is problematic. Same ends can be
achieved but I caution you about finance clarifying without [academic affairs]."
Even if the email was addressing action related to the 130 contracts—which is
not at all clear from the record—it does not convey the threat plaintiff alleges.
In fact, a close review of the record reveals the subject matter of that email
concerned payments to faculty for unapproved "excessive overload" classes.
The email's reference is to "STEM faculty concerns." Other emails contained
A-1917-18T1
14
in the record bearing the same reference offer some insight into the subject
matter. The initial email in the apparent chain from Friedman to Elizabeth
Nesius, copied to Dean Christopher Wahl and Ray, relates that Wahl told
Friedman "about certain faculty members not providing load sheets despite clear
communications from [Nesius's] office. Additionally, there are some faculty
with clearly excessive overload that [Nesius] was not given the opportunity, as
the contract states, to agree to the additional classes." That email was forwarded
by Ray to plaintiff and Zeichner later that afternoon with the message: "Not
sure if you were already aware of upcoming 'overload' issues with [STEM]."
Plaintiff later replied to Ray, Zeichner, Wahl, Nesius and Friedman: "If the
sheets are not submitted, then [d]isciplinary action should occur and there is no
guarantee going forward these stipends will be approved." Friedman then aired
his view that the finance and academic affairs departments, with human
resources, "need to be tied at the hip on this." He added, "[s]ubmitting load
sheets with no time for an approval process has to change." In his reply, plaintiff
suggested a meeting with STEM faculty, noting "[f]or someone [from that
faculty] to question the request / contract requirement raises concerns.
[Zeichner] and I will clarify for them what the process is now and going
forward."
A-1917-18T1
15
Plaintiff's deposition testimony clarifies the STEM faculty issue was
separate from the contract inaccuracies that he advances as the whistleblowing
activity. After testifying that he had conversations with Friedman about the
inaccuracies in the contracts—both fall and summer—plaintiff added:
And apparently, there was also an issue with contracts
coming in late where we had adjuncts looking for
payment, which were salary payments, but we had . . .
nothing in the system for what they were teaching. So
there were some discussions between . . . Friedman,
. . . Wahl, another dean of the STEM program, I don't
remember her name, and there was an [e]mail exchange
about contracts not being in on time and contracts not
being accurate, and also, that I was looking at contracts
to making sure they were financially correct.
Plaintiff could not say if any "late contract . . . [w]ould fall into the category of
[the] 130 inaccurate contracts" that formed the basis for one of plaintiff's
whistleblowing activities. Although he said "[t]hey could be," while
acknowledging he had never received any data about the 130 contracts, he
clearly did not intend to include the "late" contracts as part of the activity related
to the audited contracts.
A-1917-18T1
16
In that plaintiff's conflation of the emails and other evidence relating to
the late contracts, including the anonymous letter left in the ladies' room, 3 offer
no support for his whistleblowing activity relating to the audited contracts, we
determine he did not establish he had engaged in a whistleblowing activity under
3
The letter is undated, but plaintiff claims in his merits brief that it was left
"[l]ess than one week after [an] email exchange" on September 22 and 23, 2015.
The letter provided:
ENOUGH IS ENOUGH!
It is time for . . . Gabert to step down. Who is really
running this school? The president, the politicians, or
[plaintiff]? [Plaintiff] purchased a $60,000 Chevy
Tahoe for his personal use using college money. That's
right, college money. How much more will faculty
take? No money to address our low salaries, but the
new VP gets a luxury car in addition to his high salary?
All the while, his bullies are attacking faculty overload
to save money??? What is wrong with this picture? Is
this even legal?
Where is . . . Gabert on this? Did he ok this? Is he even
aware? Which one is worse?
ENOUGH IS ENOUGH!
In his merits brief, plaintiff contends another anonymous letter was received in
September 2015 by Gabert, "[a]fter [p]laintiff's audit," "complaining that the
teachers' contracts were being audited" and that plaintiff "was driving the
vehicle provided to him by [the College]." The letter was not provided in the
record but, given that plaintiff played no real role in the audits, the vague,
anonymous letter provides no support for plaintiff's argument .
A-1917-18T1
17
N.J.S.A. 34:19-3(c). Overall, the weight of the evidence shows plaintiff's
assertions are factually inaccurate or unsupportable. Summary judgment was
properly granted as to that allegation. See Brae Asset Fund, L.P. v. Newman,
327 N.J. Super. 129, 134 (App. Div. 1999) (finding that "bare conclusory
assertions in an answering affidavit," without factual support, "are insufficient
to defeat a meritorious application for summary judgment").
As we have discussed, plaintiff's other allegations of whistleblowing
activity are supported. As such, we conclude plaintiff met the first two prongs
of CEPA with regard to his activities regarding the custodial and MAST
contracts, but he did not establish a prima facie case as to the audited contracts.
We also deem plaintiff's suspension and termination to be an obvious
adverse employment action. And there is sufficient evidence of a causal
connection between plaintiff's whistleblowing activity and his termination to
establish a prima facie case.
The causal connection element "can be satisfied by inferences that the trier
of fact may reasonably draw based on circumstances surrounding the
employment action. The temporal proximity of employee conduct protected by
CEPA and an adverse employment action is one circumstance that may support
an inference of a causal connection." Maimone v. City of Atlantic City, 188
A-1917-18T1
18
N.J. 221, 237 (2006). "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. Where the timing alone is not 'unusually
suggestive,' the plaintiff must set forth other evidence to establish the causal
link." Young v. Hobart W. Grp., 385 N.J. Super. 448, 467 (App. Div. 2005)
(first quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997);
and then citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir.
2000)).
As we have determined, Friedman's September 2, 2015 email and the
anonymous letters are not, contrary to plaintiff's merits-brief argument, evidence
relevant to a whistleblowing activity; thus they do not support his causal -
connection claim. Although plaintiff's merits brief is woefully short of dates on
which both remaining whistleblowing activities occurred, and the motion judge
did not analyze this factor in any of his decisions, we are able to glean certain
dates from the record.
Plaintiff was hired in January 2014, suspended on September 30, 2015 and
terminated on November 25, 2015. Thus, all activities occurred within a short
span. Plaintiff claims, beginning in July 2014, he objected to the presence of
A-1917-18T1
19
MAST's president, Ted Domuracki, at meetings during which contracts his
company stood to be awarded were discussed. Toturelli resigned in June 2015.
That Gabert knew of plaintiff's stance on Torturelli's involvement in the
deviations to contract-payment terms for custodial services and materials,
Torturelli's extended leave followed by his resignation and plaintiff's objection
to Gabert's and Netchert's pressure to rescind Torturelli's resignation is
circumstantial evidence linking plaintiff's termination to protected activity. So
too, Domuracki's position on the advisory committee that played a role in the
award of contracts to MAST and Netchert's desire to award contracts to that
company also evidence a causal connection between that activity and plaintiff's
termination. See Maimone, 188 N.J. at 239 ("[A] finding of the required causal
connection may be based solely on circumstantial evidence that the person
ultimately responsible for an adverse employment action was aware of an
employee's whistle-blowing activity.").
We do agree with the motion judge's determination during the first
reconsideration motion that Gabert's personal use of his College vehicle called
into question the reason plaintiff was terminated.
In a CEPA pretext case, a plaintiff may defend a summary judgment
motion by presenting "some evidence, direct or circumstantial, from which a
A-1917-18T1
20
reasonable factfinder could conclude that defendants' proffered reasons [for its
adverse employment action] were 'either a post hoc fabrication or otherwise did
not actually motivate the employment action (that is, the proffered reason is a
pretext).'" Kolb, 320 N.J. Super. at 480 (quoting Romano v. Brown &
Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995)).
We recognized, in the context of Title VII 4 and New Jersey Law Against
Discrimination (LAD) 5 cases, once a defendant proffers legitimate,
nondiscriminatory reasons for its adverse employment action,
plaintiff need not provide direct evidence that her
employer acted for discriminatory reasons in order to
survive summary judgment. "She need only point to
sufficient evidence to support an inference that the
employer did not act for its proffered
non[]discriminatory reasons." Kelly v. Bally's Grand,
Inc., 285 N.J. Super. 422, 432 (App. Div. 1995). In
other words, the plaintiff, as the non[-]moving party,
"must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies[] or contradictions in the
employer's proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them
'unworthy of credence,' and hence infer 'that the
employer did not act for [the asserted]
non[]discriminatory reasons.'" Fuentes v. Perskie, 32
F.3d 759, 765 (3d Cir. 1994).
[Kolb, 320 N.J. Super. at 478.]
4
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -17.
5
N.J.S.A. 10:5-1 to -49.
A-1917-18T1
21
So too,
[i]t is beyond dispute that the framework for proving a
CEPA claim follows that of a LAD claim. It is also
plain that the methods of proof and the applicable
burdens in LAD and CEPA cases generally follow Title
VII law, and we therefore frequently look to federal as
well as state discrimination and retaliation cases as
precedent.
[Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276,
290 (App. Div. 2001) (citations omitted).]
Consistent with the burden-shifting process applied in Title VII and LAD cases,
we held, once a defendant proffers legitimate, nonretaliatory reasons for an
adverse employment action, a "plaintiff must raise a genuine issue of material
fact regarding whether the employer's proffered explanation is pretextual or
whether, the 'retaliatory discrimination was more likely than not a determinative
factor in the decision.'" Kolb, 320 N.J. Super. at 479 (quoting Bowles, 993 F.
Supp. at 262).
Plaintiff concedes that he brought his work vehicle home at night, but
asserts that the director of security had told him he could bring the College
vehicle home, the College did not have a written vehicle-use policy and Gabert
also used his work vehicle for personal reasons. Plaintiff was suspended for
personal use of the College vehicle. Gabert claimed the personal use of his
A-1917-18T1
22
College vehicle was authorized by his employment agreement. As the motion
judge noted, that was not the case, presenting a disputed fact regarding
defendants' pretextual motive for terminating plaintiff. To be sure, there are
many credibility issues with regard to the parties' contentions. But disputed
facts should be decided by a jury; they should not form the basis for the grant of
summary judgment. Brill, 142 N.J. at 540.
As such, we reverse and remand those portions of the motion granting
summary judgment as to the claims based on whistleblowing activities regarding
the custodial contract and the MAST contract. We remand both claims for
further proceedings. We affirm the dismissal of plaintiff's claim regarding the
contract audit.
Affirmed in part and reversed in part. We do not retain jurisdiction.
A-1917-18T1
23