THOMAS BRODOWSKI VS. HUDSON COUNTY COMMUNITY COLLEGE (L-2418-16, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-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

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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]

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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.
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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.
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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

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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

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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

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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

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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

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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

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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?

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 [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,

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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

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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."

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 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.

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 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 .
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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

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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

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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

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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.
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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

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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.

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