NOT FOR PUBLICATION WITHOUT THE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-1895-15T2
JAREER ABU-ALI,
Plaintiff-Appellant,
v.
PINNACLE FOODS GROUP, LLC,
and STEPHEN GUNTHER,
Defendants-Respondents.
______________________________________________
Argued September 12, 2017 – Decided September 26, 2017
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
0143-13.
Damian Christian Shammas argued the cause for
appellant (Law Offices of Damian Christian
Shammas, LLC, attorneys; Mr. Shammas and
Kristen Jasket Piper, on the briefs).
Nicholas Stevens argued the cause for
respondents (Starr, Gern, Davison & Rubin, PC,
attorneys; Mr. Stevens, of counsel and on the
brief; Jonathan J. Lerner, on the brief).
PER CURIAM
Plaintiff Jareer Abu-Ali appeals from an order entered by the
Law Division on December 3, 2015, granting summary judgment in
favor of defendants Pinnacle Foods Group, LLC (Pinnacle), and
Stephen Gunther (Gunther). We affirm.
I.
Pinnacle is the owner of several food brands, including Vlasic
pickles, Log Cabin syrup, Comstock and Wilderness pie-fillings,
and Bernstein's salad dressings. In May 2011, Pinnacle hired
plaintiff as its Director of Product Development. His duties
included developing new products, maintaining current products,
and managing scientists and technicians in his group. Gunther was
Pinnacle's Vice President of Research. He was plaintiff's direct
supervisor.
Plaintiff claims he disclosed to his supervisors certain
actions or practices regarding the company's products that he
believed were a violation of a law, rule, duly-promulgated
regulation, or a clear mandate of public policy. He alleges he had
a reasonable belief that in certain respects, the company was
violating the Federal Food Drug and Cosmetic Act (FDCA),
specifically, 21 U.S.C.A. § 331, or the Nutritional Labeling and
Education Act (NLEA), specifically, 21 U.S.C.A. § 343.
Plaintiff alleges that he was asked to determine if certain
whole baby pickles, which the company had stored in a salt tank
2 A-1895-15T2
and were more than one year past their "shelf-life," could be used
in the company's products. Plaintiff acknowledged that he did not
know who had determined the shelf-life of the pickles. He sampled
the pickles and informed Gunther and Mark Schiller, the company's
Executive Vice President, that in his opinion, the pickles should
not be used in the company's products. According to plaintiff, the
company modified its internal standards, extended the "shelf life"
of the pickles, and used the pickles to make relish.
Plaintiff also claims that to generate savings, Pinnacle
directed him to remove an additional ten percent of the cucumbers
that the company was placing in its pickle jars. Plaintiff learned
that the company was already including fewer pickles than the
company's internal specifications required. Plaintiff reported his
findings to Gunther and other company executives.
Plaintiff alleges he believed that if Pinnacle was putting
fewer pickles in the jars, the jar's nutrition label would not
accurately state the number of servings in the jar and its salt
content. He testified that the practice did not violate any
specific regulation, but he thought it violated "the spirit" of
some regulation. Pinnacle decided not to remove the additional ten
percent of the product from the jars.
In addition, plaintiff claims he raised concerns about
Farmer's Garden 1 (FG1), a pickle product that Pinnacle was
3 A-1895-15T2
developing. At some point, a Pinnacle plant worker told plaintiff
the FG1 test product did not taste right. Plaintiff investigated
the report and determined that the use of "expired" carrots could
have caused the taste. Plaintiff recommended that Pinnacle destroy
the test samples. Gunther agreed and the FG1 test products did not
go to market.
Plaintiff further alleges that he received an e-mail
indicating that the metal caps on the FG1 jars had a tendency to
rust. It appears that a third-party manufactured the caps for
Pinnacle. Plaintiff determined that the manufacturer's production
process scratched the outside of the caps, which caused the
rusting. Plaintiff reported his findings and Pinnacle removed
products that had gone to market with the defective caps.
Furthermore, plaintiff alleges that Pinnacle made certain
fraudulent financial projections. He reviewed the company's
internal "productivity sheets," which estimated certain savings.
Plaintiff found that some of the productivity sheets reflected
savings on projects that the company was no longer pursuing. He
also thought that some of the estimates were not realistic or
achievable. The company's Procurement Department agreed with some
of plaintiff's analyses and revised those estimates. At his
deposition, plaintiff testified that he did not know whether the
estimates were provided to the public. There is no evidence that
4 A-1895-15T2
the estimates were incorporated in Pinnacle's public financial
disclosures.
Plaintiff further claims that Pinnacle's Director of Meat
Procurement, Myron Welton, asked him to approve the use of certain
meat in its food products. Plaintiff determined that the meat was
not suitable for such use, and Gunther agreed. In addition,
plaintiff claims Pinnacle acquired certain brands of pie-fillings
from other companies, and the brands were undergoing a "packaging
graphics change." According to plaintiff, Pinnacle was including
less fruit and real sugar in the products, and replacing both
ingredients with high-fructose corn syrup.
Plaintiff claims that as a result of the changes, the
nutrition labels on the products were not accurate. He did not,
however, know if the incorrect labels originated at Pinnacle or
the companies who sold the brands to Pinnacle. Pinnacle's
Regulatory Department corrected the labeling errors that plaintiff
identified.
Plaintiff also claims that the nutrition labels on some syrups
inaccurately stated the calories of the products. Plaintiff raised
the issue with the company's Productivity, Quality Assurance, and
Regulatory Departments. Gunther approved revised labels for the
products, but authorized the use of the existing labels until the
new labels could be printed.
5 A-1895-15T2
Plaintiff further alleges that a third-party had manufactured
salad dressing for Pinnacle and shipped an order of the product
to a store in California. Plaintiff received a report that the
ingredients of the salad dressing did not separate as they should
and remained cloudy. Plaintiff also claims the product's contents
did not match the sugar, salt, and calorie content referenced on
the nutrition label. Plaintiff informed Gunther the product did
not meet the company's specifications and should be removed from
the store's shelves; however, Pinnacle informed the store the
product did not pose a safety hazard. Pinnacle asserts that it
later corrected the problem with the dressing.
Plaintiff also raised concerns about the nutrition label on
Pinnacle's new Farmer's Garden 2 (FG2) product. The product label
referred to FG2 as "All Natural." Plaintiff alleges that the label
listed certain additives that were not natural and therefore the
label was not accurate. He also informed Gunther and others that
the company was not cleaning certain production machinery properly
and, as a result, FG2 contained salt that would affect the accuracy
of the label. Gunther agreed with some of plaintiff's concerns.
On June 5, 2012, after plaintiff engaged in what Pinnacle
believed was inappropriate conduct toward a Pinnacle employee, the
company reclassified plaintiff's position as an independent
contributor. Pinnacle asserts the change did not affect
6 A-1895-15T2
plaintiff's compensation or benefits. Plaintiff refused the
reclassification. Pinnacle then told plaintiff he could resign or
he would be terminated. Plaintiff resigned. Pinnacle asserts
plaintiff voluntarily resigned his position, but plaintiff claims
he was fired.
In January 2013, plaintiff filed a complaint against Pinnacle
and Gunther asserting claims under the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. In his complaint,
plaintiff alleges defendants violated CEPA by subjecting him to
an adverse employment action in retaliation for his alleged
whistle-blowing activities. Plaintiff further alleges that as a
direct and proximate result of defendants' actions, he suffered
monetary damages and personal injuries. He sought compensatory and
punitive damages, attorney's fees and costs, and other relief.
Defendants filed an answer and denied liability. After the
completion of discovery, defendants filed a motion for summary
judgment. On October 23, 2015, the Law Division judge heard oral
argument and on December 3, 2015, placed an oral decision on the
record. The judge decided there were no genuine issues of material
fact and defendants were entitled to judgment as a matter of law.
In her decision, the judge stated that except for labeling
issues associated with certain products, plaintiff failed to show
he had a reasonable belief that Pinnacle had violated a law, rule,
7 A-1895-15T2
regulation, or clear mandate of public policy with regard to the
contents or labeling of its food products. The judge also
determined that plaintiff had not shown that he engaged in whistle-
blowing activity protected by CEPA; plaintiff had not been
subjected to an adverse employment action; and he failed to show
a causal connection between his alleged whistle-blowing activities
and any adverse employment action. The judge memorialized her
decision in an order dated December 3, 2015. This appeal followed.
II.
On appeal, plaintiff argues that the trial court erred by
granting summary judgment in favor of Pinnacle. He contends he
presented sufficient evidence to raise genuine issues of material
fact as to whether: (1) he had an objectively reasonable belief
that Pinnacle was engaging in illegal and/or fraudulent
activities, practices, or conduct; (2) he engaged in protected
whistle-blowing conduct; (3) there is a causal connection between
the alleged whistle-blowing and the retaliatory action taken
against him; and (4) the reasons Pinnacle gave for its retaliatory
actions are pretextual.
"An appellate court reviews an order granting summary
judgment in accordance with the same standard as the motion
judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Therefore, we
"must review the competent evidential materials submitted by the
8 A-1895-15T2
parties to identify whether there are genuine issues of material
fact and, if not, whether the moving party is entitled to summary
judgment as a matter of law." Ibid.; Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
Here, plaintiff is asserting claims under CEPA. In order to
prevail on such a claim, the plaintiff first must establish:
(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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380
(2015) (quoting Dzwonar v. McDevitt, 177 N.J.
451, 462 (2003)).]
If a plaintiff establishes these elements of a prima facie
case, the defendant "must come forward and advance legitimate
nondiscriminatory reasons for the adverse conduct against the
employee." Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J.
Super. 28, 38 (App. Div. 2005) (citation omitted), certif. denied,
185 N.J. 35 (2005). "If such reasons are proffered, plaintiff must
then raise a genuine issue of material fact that the employer's
9 A-1895-15T2
proffered explanation is pretextual." Id. at 39. (citation
omitted).
As we noted previously, plaintiff's CEPA claims are based on
his contention that he had a reasonable belief Pinnacle was
violating the FDCA or the NLEA with regard to certain acts and
practices in its food-production business. The FDCA authorizes the
Food and Drug Administration (FDA) to protect the public health
by ensuring that "foods are safe, wholesome, sanitary, and properly
labeled." 21 U.S.C.A. § 393(b)(2)(A).
Among other things, the FDCA bans "adulterated" food from
interstate commerce. Young v. Cmty. Nutrition Inst., 476 U.S. 974,
976, 106 S. Ct. 2362, 90 L. Ed. 2d 959, 963-64 (1986) (citing 21
U.S.C.A. § 331). Under the FDCA, food is "adulterated"
(1) [i]f it bears or contains any poisonous
or deleterious substance which may render it
injurious to health;
. . . .
(3) [I]f it consists in whole or in part of
any filthy, putrid, or decomposed substances,
or if it is otherwise unfit for food;
. . . .
(b) Absence, substitution, or addition of
constituents. (1) [i]f any valuable
constituent has been in whole or in part
omitted or abstracted therefrom; or (2) if any
substance has been substituted wholly or in
part therefor; or (3) if damage or inferiority
has been concealed in any manner; or (4) if
10 A-1895-15T2
any substance has been added thereto or mixed
or packed therewith so as to increase its bulk
or weight, or reduce its quality or strength,
or make it appear better or of greater value
than it is.
[21 U.S.C.A. § 342.]
Furthermore, in 1990, Congress enacted the NLEA, "which
altered, expanded, and clarified the [FDCA's] labeling
requirements." Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84,
92 (D.N.J. 2011) (citing 21 U.S.C.A. §§ 301, 321, 337, 343, 371).
Among other things, 21 U.S.C.A. § 343 provides that food intended
for human consumption that is offered for sale, must have a label
that provides the number of servings, the number of calories, and
the amount of sodium and sugars in the product. 21 U.S.C.A. §
343(q)(B)(C)(D).
III.
Here, plaintiff argues that he presented sufficient evidence
to raise a genuine issue of material fact as to whether he had an
objectively reasonable belief that Pinnacle was engaging in
practices that violated the FDCA or the NLEA. As we have explained,
plaintiff's claims relate to (1) the attempted use of certain baby
whole pickles in the company's food products; (2) the reduction
in the number of cucumbers in pickle jars; (3) the use of "expired"
carrots in a test product; (4) the request to use allegedly
"suspect" meat in products; (5) the use of metal caps on jars of
11 A-1895-15T2
food that had a tendency to rust; (6) the alleged use of misleading
labels on pie-filling products; (7) the creation of certain
allegedly fraudulent financial projections; (8) the sale of
allegedly defective salad dressing; (9) the change of ingredients
in certain products without needed changes to the labels; and (10)
the substitution of sweeteners in syrups without changing the
labels.
As we stated previously, the motion judge found that plaintiff
had presented sufficient evidence to show that he had a reasonable
belief Pinnacle had violated the FDCA and NLEA by changing the
ingredients in certain products without modifying the nutrition
labels for these products. The judge concluded, however, that
plaintiff failed to present sufficient evidence to show he had a
reasonable belief that Pinnacle was violating any law, rule,
regulation, or clear mandate of public policy with regard to the
other products.
In her decision, the judge pointed out that the FDCA generally
bars the introduction into interstate commerce of adulterated
foods. 21 U.S.C.A. § 331. The judge noted that according to the
FDCA, food is considered "adulterated" if it contains poisonous
or deleterious substances, contains certain unsafe food additives,
is injurious to health, or includes substances that make it unfit
for consumption as food. 21 U.S.C.A. § 342(a), (b), or (c). The
12 A-1895-15T2
judge concluded that except for the labels on certain pie-fillings
and syrups, plaintiff had not presented sufficient evidence to
support his claim that he had a reasonable belief the company was
violating either the FDCA or NLEA.
The judge noted that plaintiff had not identified any specific
rule, regulation or standard that Pinnacle had allegedly violated,
and plaintiff had not presented "any evidence that would enable a
rational juror to conclude that Pinnacle's departure from internal
product specifications violated any specific government
specification." The record supports the judge's assessment of the
evidence.
Here, plaintiff claims Pinnacle asked him to determine if
certain baby whole pickles that were allegedly past their "shelf
life" could be used in the company's products. Plaintiff testified
that he believed the use of the "decomposed" pickles violated the
FDCA. The FDCA precludes the sale of "adulterated" foods, but
plaintiff did not cite any rule or regulation indicating that the
pickles at issue were unfit for consumption as food.
Plaintiff further alleges that Pinnacle used so-called
"expired" carrots in its FG1 test product. Plaintiff failed to
show, however, that Pinnacle's alleged use of the "expired" carrots
violated any specific rule or standard pertaining to the use of
13 A-1895-15T2
such ingredients. Moreover, there is no evidence that Pinnacle
ever sold such products to the public.
Plaintiff also claims the FG1 test product had metal caps
that had a tendency to rust. Plaintiff may have expressed concerns
about the rusting of the metal caps on the FG1 product, but the
evidence was insufficient to show that the caps adulterated the
contents of the jars or rendered the contents unfit for
consumption. Furthermore, Pinnacle had removed any products with
the deficient caps that had been sent to market.
In addition, plaintiff claims a Pinnacle employee asked him
to approve the use of the allegedly "suspect" meat in certain
Pinnacle products. Plaintiff did not, however, approve the use of
the meat, and Gunther agreed with his decision. Plaintiff did not
present any evidence that Pinnacle ever used any tainted meat in
any food product. The mere fact that someone asked plaintiff to
approve the use of the meat is not a violation of the FDCA, and
plaintiff could not have a reasonable belief that Pinnacle was
violating the FDCA.
Plaintiff also claims he reasonably believed Pinnacle
violated the FDCA and the NLEA by providing allegedly deficient
salad dressing to a store. He claimed the product had an inaccurate
label. However, a third-party had manufactured the product for
Pinnacle, and Pinnacle determined the deficiencies in the dressing
14 A-1895-15T2
did not present a safety issue for consumers. Plaintiff did not
provide sufficient evidence to support the claim that he had a
reasonable belief the product was unfit for consumption or that
the label was inaccurate.
Plaintiff also alleges he reasonably believed the labels for
Pinnacle's FG2 product violated the NLEA because the company used
the term "All Natural" on the label. As the motion judge noted,
however, the FDA had not established any standard for use of the
term "All Natural." In addition, plaintiff claims that the FG2
labels were false and misleading because the labels allegedly did
not match the ingredients in the product, and the salt content was
much higher than the actual product. The record shows, however,
that Pinnacle addressed many of the issues plaintiff raised
regarding FG2, and plaintiff failed to present sufficient evidence
showing that he had a reasonable belief the company sold FG2
products with inaccurate labels to consumers.
Plaintiff's claim regarding the alleged faulty financial
projections also fails for lack of proof. He has not identified
any specific statute, rule, regulation, or clear mandate of public
policy that Pinnacle allegedly violated by creating these internal
company financial projections. Plaintiff identified errors in some
estimates and some were corrected. There is, however, no evidence
15 A-1895-15T2
that Pinnacle disseminated any faulty estimates to the public, or
used them in any of the company's public financial disclosures.
We therefore conclude that the motion judge correctly
determined that, with the exception of the labeling issues
pertaining to the change of ingredients in certain products,
plaintiff failed to present sufficient evidence to show he had a
reasonable belief Pinnacle violated either the FDCA or the NLEA.
Plaintiff nevertheless argues that the motion judge erred by
requiring that he identify specific standards applicable to the
specific products about which he expressed concerns. Plaintiff
notes that a party asserting a CEPA claim need not show that his
employer actually violated a law, regulation, or clear mandate of
public policy. See Dzwonar, supra, 177 N.J. at 462 (citations
omitted).
However, a plaintiff must "first find and enunciate the
specific terms of a statute or regulation, or the clear expression
of public policy, which would be violated if the facts as alleged
are true." Id. at 463 (quoting Fineman v. New Jersey Dept. of
Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied,
138 N.J. 267 (1994)). The court "must identify a statute,
regulation, rule, or public policy that closely relates to the
complained-of conduct." Ibid. There must be a "close relationship"
16 A-1895-15T2
between the plaintiff's claims and the alleged violation. Id. at
467.
Here, plaintiff merely referred to the requirements of the
FDCA and the NLEA, which generally bars the introduction of
adulterated food into interstate commerce and requires accurate
labels for food products. Reference to the general requirements
of the FDCA and NLEA are insufficient, however, because CEPA
requires a showing of a "close relationship" between plaintiff's
concerns and the purported violations. As the motion judge noted,
plaintiff failed to cite any specific rule, regulation, or standard
applicable to the food products about which he had expressed
concerns.
Therefore, with the exception of the two labeling issues
noted by the motion judge, plaintiff failed to show that, even if
his claims were proven, he had a reasonable belief that Pinnacle
violated a specific law, rule, regulation, or clear mandate of
public policy. Plaintiff failed to present sufficient evidence to
show the required "close relationship" between his claims and the
alleged violations of the FDCA and NLEA.
IV.
We turn to plaintiff's contention that the motion judge erred
by finding that he did not present sufficient evidence to show
that he engaged in whistle-blowing activity that is protected by
17 A-1895-15T2
CEPA. In her decision, the motion judge concluded that although
plaintiff had raised concerns about some of the company's practices
and products, he had not raised any specific concern that the
company was violating the FDCA or the NLEA.
As the judge pointed out, the record shows that plaintiff's
concerns related to the possible deviations from the company's
internal standards and specifications. The judge noted that
plaintiff had raised legitimate business concerns "about practices
that may result in the loss of customers or consumers purchasing
the product." Indeed, it appears that this was precisely the role
plaintiff had been hired to fulfill in his capacity as Pinnacle's
Director of Product Development. Nevertheless, the concerns
plaintiff raised did not rise to the level of whistle-blowing
protected by CEPA.
As the record shows, plaintiff's responsibilities as
Pinnacle's Director of Product Development were part of the
company's internal process for reviewing and assessing existing
products and developing new products. Among other things,
plaintiff had the responsibility to ensure that the company's
products conformed with its internal standards and specifications.
In furtherance of his responsibilities, plaintiff reviewed the
suitability of certain product ingredients, the contents of the
18 A-1895-15T2
jars, the lids on the jars, proposed changes to product
ingredients, and related labeling issues.
That record also shows that in some instances, other persons
or departments in the company agreed with plaintiff's views and
in some instances, other persons or departments did not agree.
There is no evidence that the disagreements represented an effort
on the part of Pinnacle to introduce adulterated food into
interstate commerce, or regularly employ inaccurate labels on its
products. We agree with the motion judge's conclusion that internal
disputes regarding the products or the labels of the sort at issue
in this case do not constitute whistle-blowing protected by CEPA.
The judge's decision on this issue was consistent with the
applicable law. See Hitesman v. Bridgeway, Inc., 218 N.J. 8, 31
(2014) (noting that CEPA protects employees who report an
employer's illegal or unethical conduct, but not routine disputes
in the workplaces about internal policies or procedures); Maw v.
Advanced Clinical Commc'ns, 179 N.J. 439, 445-46 (2004) (findings
that employee's private dispute with her employer about a
noncompete agreement was insufficient to support a claim under
CEPA because employee had not shown a clear mandate of public
policy regarding such agreements); Dzwonar, supra, 177 N.J. at
467-69 (holding that a CEPA claim could not be premised on a
disagreement about the manner in which a union conducted its
19 A-1895-15T2
meetings or explained its actions to members because such a
disagreement was not closely related to any statutory violation);
Klein, supra, 377 N.J. Super. at 45 (noting that CEPA was not
intended to "settle internal disputes in the workplace").
We therefore conclude the motion judge correctly found that
plaintiff failed to present sufficient evidence to show that he
engaged in whistle-blowing activity that is protected under CEPA.
V.
Plaintiff also argues that the motion judge erred by
concluding that he did not present sufficient evidence to raise a
genuine issue of material fact as to whether he had suffered an
adverse employment action. He contends that reclassifying his
position as an independent contributor was a demotion and his
resignation in lieu of termination was the equivalent of a
termination. Again, we disagree.
In her decision, the motion judge noted that not every
employment action "that makes an employee unhappy" is an adverse
employment action under CEPA. The judge determined that a
reasonable juror could not find that Pinnacle took any retaliatory
action against plaintiff that is actionable under CEPA.
CEPA defines retaliatory action as "the discharge, suspension
or demotion of an employee, or other adverse employment action
taken against an employee in the terms and conditions of
20 A-1895-15T2
employment." N.J.S.A. 34:19-2(e). "[E]mployer actions that fall
short of [discharge, suspension, or demotion] may nonetheless be
the equivalent of an adverse employment action." Cokus v. Bristol
Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd,
362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32
(2003). Actions that negatively affect an employee's
"compensation," "rank," or "terms and conditions of employment,"
can serve as the "functional equivalent of a demotion." Beasley
v. Passaic Cty., 377 N.J. Super. 585, 608 (App. Div. 2005).
Here, the motion judge observed that after the incident in
which plaintiff had allegedly yelled at a worker at one of
Pinnacle's production plants, the company reclassified plaintiff's
position as an independent contributor. The judge pointed out,
however, that plaintiff's grade level, compensation, and
scientific-work responsibilities remained the same. The only
difference was that subordinates would not report to plaintiff.
The judge observed that plaintiff had not inquired about the
details of the reclassification, but rejected the position "based
on his personal perception" that the reclassification was a
demotion. The judge stated that there was no objective evidence
supporting plaintiff's "personal perception." The judge also noted
that when plaintiff offered to resign, Album told him to take a
few days "to think things over," while the company investigated
21 A-1895-15T2
the complaints regarding plaintiff's dealings with other Pinnacle
employees.
Later, plaintiff met with Album and he was told he could
resign or he would be terminated. Plaintiff chose to resign. The
judge stated that Pinnacle's decision to accept plaintiff's
resignation was not an adverse employment action because plaintiff
had made clear before the meeting that he would never accept the
position of independent contributor.
The judge commented that plaintiff chose to resign his
position. He made the "unilateral and voluntary determination that
he would never accept the position of independent contributor."
The judge decided that under the circumstances, plaintiff could
not establish that he had been subject to either a constructive
discharge or an adverse-employment action.
We are convinced that the record supports the motion judge's
determination. Plaintiff failed to show that he was demoted or
otherwise subjected to an adverse employment action. His position
was changed to independent contributor, but he failed to show that
there was any adverse change to his compensation or benefits.
Plaintiff decided he would not accept the reclassification of his
position, and he decided to resign rather than be terminated.
As the judge pointed out in her decision, not every action
that makes an employee unhappy constitutes an actionable
22 A-1895-15T2
retaliatory action under CEPA. Nardello v. Twp. of Voorhees, 377
N.J. Super. 428, 434 (App. Div. 2005). Plaintiff claims without
any factual support that his reclassification as an independent
contributor is tantamount to a demotion. Although the record shows
that subordinates would no longer report to him, he failed to show
that the reclassification was, in fact, a demotion.
Plaintiff also argues that he was offered the opportunity to
either resign or be fired, and that under the circumstances, his
employment was terminated. The record shows, however, that
plaintiff decided he would not under any circumstances accept the
reclassification of his position. As the motion judge determined,
plaintiff voluntarily resigned.
In view of our decision, we need not consider whether there
is a causal connection between plaintiff's alleged protected
conduct and the alleged retaliatory action, or whether the reasons
Pinnacle gave for the alleged retaliatory action were pretextural.
Affirmed.
23 A-1895-15T2