DOMENIC CAPPELLA SR v. CITY OF ATLANTIC CITY MAYOR LORENZO LANGFORD DENNIS MASON EUGENE ROBINSON WILLIAM MARSH TIMOTHY MANCUSO GEORGE TIBBIT

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Superior Court of New Jersey, Appellate Division.

DOMENIC F. CAPPELLA, SR., Plaintiff–Appellant, v. CITY OF ATLANTIC CITY, MAYOR LORENZO LANGFORD, DENNIS MASON, EUGENE ROBINSON, WILLIAM MARSH, TIMOTHY MANCUSO and GEORGE TIBBIT, Defendants–Respondents.

DOCKET NO. A–5993–11T2

Decided: April 1, 2014

Before Judges Parrillo, Harris and Guadagno. Damico, Del Sardo & Montanari, L.L.C., attorneys for appellant (Darren J. Del Sardo, on the briefs). DeCotiis, Fitzpatrick & Cole, L.L.P., attorneys for respondents City of Atlantic City, Dennis Mason, Eugene Robinson, William Marsh, Timothy Mancuso and George Tibbit (George G. Frino, of counsel;  Susan E. Volkert and Mark A. Bunbury, Jr., on the brief).

Plaintiff Domenic Cappella appeals from the summary judgment dismissal of his wrongful termination complaint, alleging, among other things, reverse racial discrimination and a hostile work environment in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –49, and constructive discharge retaliation under the Conscientious Employees' Protection Act (CEPA), N.J.S.A. 34:19–1 to –14, against the City of Atlantic City (City), City Council Members Dennis Mason, Eugene Robinson, William Marsh, Timothy Mancuso and George Tibbit (collectively City Council) and Mayor Lorenzo Langford (collectively defendants).

This matter arises from plaintiff's employment with the City, which spanned from January 2002 to May 2010, when his position of Assistant Business Administrator (ABA) was eliminated pursuant to a layoff plan and plaintiff declined to exercise his “bumping rights” to revert to his former position in the City's Mercantile Division.   The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows.

In 2001, plaintiff, who is Caucasian and had previously been the Business Administrator (BA) for Ventnor, joined Langford's political campaign for mayor of Atlantic City. According to plaintiff, during the campaign, Langford, who is African–American, referred to him as “the token white guy,” and another campaign advisor, who later served as Deputy Mayor in the Langford administration, once said, “[y]ou're just a white guy.   And I don't even know what you are doing here.”

After Langford won the election, in January 2002 plaintiff was offered a position as an aide and was assigned to the Mercantile Division.   Later that year, he was appointed ABA, but failed in his effort to be made permanent in this title.   Instead, he served in that position until May 2005, when Langford terminated him supposedly for “budgetary reasons.”

Back then, plaintiff had claimed the proffered reason was a pretext since he was the only employee terminated and that he was retaliated against for his whistleblowing activities.   For instance, in 2004, while serving as ABA, plaintiff reported to City Council that Langford had solicited donations from City employees on behalf of other candidates, through his sister, who was also his confidential aide.   He also informed City Council that Langford had ordered department directors to collect absentee ballots from employees.   According to plaintiff, partly due to this information, a federal investigation was launched into Langford's activities, as a result of which the mayor was charged with violating the Hatch Act and eventually admitted responsibility for the violation.1

In February 2005, plaintiff filed a suit against the City and Langford, alleging, among other things, CEPA violations and unlawful reprisals;  after his termination, he amended his complaint, alleging wrongful termination.   The matter was eventually settled on August 8, 2005, and plaintiff was reinstated as ABA in October 2005.   Shortly thereafter, the BA retired and Ron Cash, an African–American who had previously served as the City's Director of Health and Human Services, was named acting BA. Plaintiff opposed this move and obtained a court order appointing him acting BA.

Langford lost his re-election bid for mayor in November to Robert Levy, who assumed office on January 1, 2006.   That same month, plaintiff was given permanent status in the Civil Service title of ABA with an $85,800 salary.   Levy subsequently named plaintiff BA with a $102,000 salary and his appointment was approved by City Council.

During his tenure as BA, plaintiff issued a series of memos to City Council, complaining about violations of various policies.   Specifically, on May 21, 2007, plaintiff reprimanded Council members Small and Tibbit for interfering in City personnel matters.   Plaintiff also addressed City Council on the issue of “street end” rights given to boardwalk businesses at a discounted rate, which he alleged was improper, especially in the case of a restaurant at which Council member Mason had previously held campaign fundraisers.   Shortly thereafter, on May 30, 2007, City Council gave plaintiff a vote of “no confidence.”

On July 10, 2007, plaintiff reported to the Atlantic City Ethics Board that Council member Mancuso had been arrested for DWI. In his correspondence, plaintiff complained that “Council Member Mancuso is a teacher and is setting a bad example for the children of this community.”   Then, in a July 17th memo, plaintiff ordered Council members Mancuso and Robinson to surrender their city-issued cars, due to Mancuso's DWI charges, excessive gasoline purchases (over 50,000 miles on his vehicle) and expensing of non-business trips, and Robinson's involvement in car collisions, including one in which he left the scene of an accident and had used his vehicle to transport a “civilian” to another town on non-city business.2  Overturning this decision, Council President Marsh returned the cars to Mancuso and Robinson and issued an order that plaintiff could no longer attend City Council meetings.

Plaintiff further clashed with City Council over the elimination of the City's Department of Law, an agency created, in plaintiff's view, to reduce costs associated with hiring outside counsel.   Plaintiff vetoed City Council's action, advising that the elimination was violating State Civil Service regulations, but this veto was overridden by City Council.

Plaintiff also disagreed with City Council's decision to renew a lease to Gardner's Basin, which was a City-owned waterfront property, where the Atlantic City Aquarium, as well as various restaurants and businesses were located.   Plaintiff claimed that the City did not make a profit from the property and, in fact, expended $88,000 in 2008 on maintenance.   He further claimed that the lease was improperly extended due to close ties between Council President Marsh and the foundation holding the lease.   Plaintiff raised this issue at several public City Council meetings and subsequently informed State authorities of the potential conflict of interest.

Plaintiff also clashed with Langford (then the former mayor) during his time as BA. Langford and Marsh had received a settlement from a lawsuit they had brought against the City in 1997, alleging that positions they had held with the school board had been eliminated because of political retaliation.   The City had settled the lawsuit for $850,000.   However, the New Jersey Supreme Court later invalidated the settlement and ordered Langford and Marsh to repay the money.   See Thompson v. City of Atlantic City, 190 N.J. 359 (2007).   Thereafter, plaintiff publicly insisted that Langford and Marsh repay these funds to the City.

In the meantime, in the Fall of 2007, Levy had resigned his position following a criminal conviction.   Marsh became the acting mayor of the City on October 10, 2007.   On October 22, 2007, Marsh issued a memo stripping plaintiff of his power to sign personnel paperwork or any other document without Marsh's approval.   Plaintiff was also told he could not schedule any meetings without Marsh's approval and was ordered to advise Marsh when he was expected to be out of the office.   That same day, plaintiff composed a letter to then-governor Jon Corzine, accusing Marsh of improperly raising his own salary, and identifying other improprieties including concerns about the Gardner's Basin lease.

In November 2007, plaintiff and Scott Evans were candidates vying to be appointed mayor for the balance of Levy's term.   City Council ultimately appointed Evans, a white male.   According to plaintiff, he was not selected because he had earlier indicated to City Council that if chosen, he would re-hire the former City solicitor, Kim Baldwin, who had pursued the City's repayment claims against Langford and Marsh.   In fact, plaintiff later clashed with Evans over Evans' decision to appoint his personal attorney as the new City solicitor.   Plaintiff had also complained that Evans had intervened in a personnel matter involving a firefighter's termination.

Upon assuming office on November 21, 2007, Evans did not reappoint plaintiff as BA, and instead appointed Carol Fredericks, a white female, to that position.   According to Evans, plaintiff “was not capable of performing basic administrative functions,” “was insubordinate,” “antagonized members of City Council and created an unprofessional and disruptive environment.”

Plaintiff returned to his position as ABA, but his salary was recalculated at the lower amount of $63,000, less than the $88,500 he had previously earned in that position and less than the $89,232 his immediate predecessor earned.   According to plaintiff, upon his return to the ABA position, his job responsibilities were limited, City solicitors were instructed not to speak to him and, in a March 20, 2008 memo from Marsh, he was banned from City Council meetings and from speaking to City Council members.

In Spring 2008, plaintiff, while continuing in his position as ABA, became a mayoral candidate in the Democratic primary race, running against Evans and Langford.3  At a debate in May, plaintiff confronted Langford about repayment of the settlement monies and supposedly Langford became angry, almost punching him.   According to Langford, however, at the debate plaintiff allegedly disrespected a female, causing Langford to intervene.

Langford won the November 2008 election.   He appointed Redenia Gilliam–Mosee, an African–American, as BA. Although she had no previous BA experience, Gilliam–Mosee had previously been an executive at Bally's.   On November 26, 2008, plaintiff made a formal request for back pay and a base salary increase to reflect his title, effective March 11, 2008.   His request was denied.   In contrast, Gilliam–Mosee received a pay increase from her initial $97,000 salary.

Gilliam–Mosee passed away during her tenure as BA. To fill the position on an acting basis, Langford first appointed Ron Cash again and then, in April 2009, Michael Scott, an African–American, and the Director of Public Works.   Scott then hired Duanne Carrington, an African–American, as Budget Officer.   According to plaintiff, Carrington became Scott's assistant, usurping plaintiff's role and assuming many of plaintiff's responsibilities.   During 2009, plaintiff voiced several complaints to Scott, claiming that he was being “bypassed” and “ignored.”

Having received no favorable response, and dissatisfied with the amount of pay he was receiving as ABA and previously as BA, plaintiff filed his initial complaint in this matter on December 8, 2009.   In April 2010, plaintiff was notified that he was one of forty-eight City employees targeted for layoff or demotion under a plan drafted by the City's Labor Counsel, Steven Glickman, and formulated to address a $10 million budget deficit.   The City had considered various alternatives including “across-the-board” salary reductions, salary roll-backs and furloughs, as well as a plan combining demotions, furloughs and layoffs.   The City had also attempted to get a waiver from the State to increase municipal taxes, but this was denied.

On April 12, 2010, the New Jersey Civil Service Commission approved the “Glickman” reduction in force (RIF) plan, calling for the layoff of forty-eight employees.   Plaintiff was the sole employee from his department to be laid off.   Carrington was transferred to another position with no loss of pay.   Due to his Civil Service title, plaintiff had “bumping rights” and therefore the option to revert to his position with the Mercantile Division, although he claims that this position would have included a pay reduction and diminished responsibilities.   Plaintiff resigned rather than exercise his bumping rights.

Plaintiff then amended his complaint to include a constructive discharge allegation.   Thus, plaintiff's complaint contained the following counts:  a violation of CEPA (Count 1);  reverse racial discrimination in violation of the LAD (Count 2);  hostile work environment in violation of the LAD (Count 3);  retaliation in violation of the LAD (Count 4);  and intentional infliction of emotional distress (IIED) (Count 5).

In essence, plaintiff's complaint alleges that in his roles as BA and ABA, plaintiff sought to eradicate corruption, improper use of public funds, donor influence and fundraising abuses by speaking out against various actions by City Council and Langford, including:  (1) the practice of awarding street-end rights to political contributors;  (2) the plan to extend the costly Gardner's Basin lease to the Gardner's Basin Foundation;  (3) the practice of rewarding campaign supporters with lucrative legal services contracts;  (4) abuses of City car and gasoline privileges;  and (5) the failure of Mayor Langford and Council member Marsh to repay $850,000 in public funds to the City. Plaintiff contended that in retaliation for voicing these complaints, defendants took away his job responsibilities, denied him promotion, reduced his salary and, eventually, allowed him to be constructively discharged by eliminating his position.

Plaintiff also alleged that Langford discriminated against him because he is white, denying him promotion and reducing his salary, and that this was just part of a larger pattern of reverse discrimination practiced by the Langford administration against Caucasians.

At the close of discovery, defendants moved for summary judgment.   Following argument, the court granted the motion, dismissing all claims against all defendants with prejudice.   In doing so, the court found that, with respect to his CEPA claim, although plaintiff indisputably engaged in protected

“whistleblowing” activity, he did not establish that defendants retaliated against him as a result of his complaints.   Specifically, with respect to plaintiff's CEPA cause of action, the court concluded: 4

[N]one of the adverse employment actions [p]laintiff alleges he suffered were causally related to his alleged whistleblowing.   Plaintiff kept his job from August 2005 until he voluntarily resigned in May 2010.   During this time, [p]laintiff made several complaints about various practices of City employees;  however, in no time during this period did [p]laintiff lose his job or get demoted after he made said complaints.   Additionally, there is nothing in the record to suggest that any of his supervisors were aware of the [c]omplaints he made to the City's ethics board or Governor Corzine.   Further, the record is devoid of any evidence that [p]laintiff's reversion to ABA after Mayor Evans was appointed had anything to do with his whistleblowing.   Rather, the evidence suggests that Mayor Evans chose not to hire [p]laintiff because of his opinion that [p]laintiff performed poorly at his job and behaved badly.   Plaintiff acknowledges that the Mayor has full discretion as to whom to appoint as [BA].

Additionally, [p]laintiff's assertion that his suspensions were related to his whistleblowing lacks an evidentiary basis.   Each time he was suspended, he acknowledged the conduct (albeit not the impropriety of the conduct) which led to the suspensions.   Plaintiff even voluntarily signed a memorandum of understanding (MOU) as to his May 2009 suspension.   Although [p]laintiff asserts that these suspensions were related to complaints he made about Evans hiring a specific attorney, he has not provided any evidence of the same.

Plaintiff also contends that he signed this MOU under “duress” and that he did not agree with what it said.   It is well-established that a person may establish duress if consent was coerced․  Here, [p]laintiff was represented by [c]ounsel and elected to sign the MOU hoping to return to work promptly.   Plaintiff has provided no evidence that he was in any way “coerced” to enter into this agreement.   Accordingly, the Court is satisfied that [p]laintiff did voluntarily agree to this MOU.

Finally, [p]laintiff's ultimate exit from his position as ABA was not a “termination” as he alleges.   Rather, the elimination of his position was a State-approved decision to remedy the financial troubles Atlantic City faced in 2010.   Plaintiff could have asserted his bumping rights but instead decided to voluntarily resign.   It is undisputed that Mr. Glickman's Certification stated that the plan was developed as a necessary remedy for the City's financial situation.   Again, the record contains no evidence that the City's plan to lay off or demote forty-[eight] City employees was related to [p]laintiff's whistleblowing.   Additionally, Councilman Marsh testified that City Council had nothing to do with the elimination of [p]laintiff's position, and [p]laintiff has presented no evidence to rebut the same.

In sum, the record establishes that [p]laintiff's complaints are based solely on his disagreements with not being named [BA]. Although [p]laintiff was suspended and ultimately chose to not take an alternative position with the City when they were forced to downsize, [p]laintiff has presented no evidence to suggest that these employment actions were in any way related to the complaints he made.   Rather, the record suggests that the adverse employment actions he suffered were a result of:  (a) two mayors who chose not to appoint him to a higher office for valid reasons;  (b) his own improper conduct;  and (c) a fiscal crisis faced by the City of Atlantic City.

On appeal, plaintiff raises the following issues:

I.  THE TRIAL COURT ERRED WHEN IT GRANTED ALL DEFENDANTS SUMMARY JUDGMENT ON ALL GROUNDS BY MAKING FINDINGS OF FACT INSTEAD OF DETERMINING WHETHER SUCH ISSUES OF FACT EXISTED.

II. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE UNDER THE LAD FOR REVERSE DISCRIMINATION AND HOSTILE WORK ENVIRONMENT BASED UPON HIS RACE THROUGH SUFFICIENT EVIDENCE OF FREQUENT AND EGREGIOUS CONDUCT AND THEREFORE, THE TRIAL COURT SHOULD NOT HAVE GRANTED DEFENDANT[S'] MOTION FOR SUMMARY JUDGMENT.

III. PLAINTIFF WAS RETALIATED AGAINST FOR HIS NUMEROUS WHISTLEBLOWING ACTIVITIES AND THERE IS A CAUSAL LINK BETWEEN THE WHISTLEBLOWING AND THE ADVERSE EMPLOYMENT ACTION AND THEREFORE, THE TRIAL COURT SHOULD NOT HAVE GRANTED DEFENDANT[S'] MOTION FOR SUMMARY JUDGMENT.

IV. PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS ENGAGED IN WILLFUL, INTENTIONAL, OR OUTRAGEOUS CONDUCT.

V. ON REMAND THE COURT SHOULD DIRECT THAT THIS MATTER BE ASSIGNED TO A DIFFERENT TRIAL JUDGE DUE TO TRIAL JUDGE'S FACTUAL DETERMINATIONS OF THE ISSUES NOT IN THE RECORD AND HIS IMPROPER COMMENTS ABOUT THE PLAINTIFF.

I.

Plaintiff contends there are disputed issues of fact from which a jury could reasonably find that his repeated complaints to the City's Law Department and City Council about, among other things, pay-to-play law violations arising from the award of legal service contracts, street-end rights and the Gardner's Basin lease, resulted in adverse employment actions taken against him, leading to his ultimate constructive discharge.   We agree as to the municipal defendant.

CEPA governs plaintiff's retaliation claim.  N.J.S.A. 34:19–3.   To establish a prima facie case under CEPA, the employee must show (1) he reasonably believed that his employer's conduct violated a law, rule or regulation;  (2) he performed a whistleblowing activity as described in N.J.S.A. 34:19–3;  (3) the employer took an adverse employment action against him;  and (4) there is a causal link between the whistleblowing and the adverse action.  Maimone v. City of Atl. City, 188 N.J. 221, 230 (2006).   An adverse action in this context is the “discharge, suspension or demotion of an employee” or another “adverse employment action” that impacts the employee's “compensation or rank” or is “virtually equivalent to discharge.”  Id. at 236;  Hancock v. Bor. of Oaklyn, 347 N.J.Super. 350, 360 (App.Div.2002), dismissed on appeal, 177 N.J. 217 (2003).5  Of course, “[n]ot every employment action that makes an employee unhappy constitutes an actionable adverse action.”  Nardello v. Twp. of Voorhees, 377 N.J.Super. 428, 434 (App.Div.2005) (internal quotation marks omitted).

Undeniably, as the motion judge correctly ruled, plaintiff has put forth sufficient facts from which a jury could reasonably find he engaged in protected whistleblowing activity, exposing what he reasonably, objectively perceived to be abuses of the power and privileges enjoyed by the City's governing body — both the mayor and City Council — as well as their alleged violations of law and regulations concerning campaign contributions and influence.   Early in his tenure as ABA, plaintiff opposed the misuse of City vehicles and gasoline by Council members, specifically reporting to the Atlantic City Ethics Board in July 2007 that Mancuso was charged with DWI, and then that same month seizing the Councilman's car as well as that of another Councilman after his involvement in several vehicular accidents, including leaving the scene of one.

Plaintiff also objected to what he reasonably believed to be the improper and conflict-laden extension of the Gardner's Basin lease to a foundation headed by a contributor to Councilman Marsh's campaign.   Not only did the City receive no revenue from the lease, it actually cost the City money and manpower for the foundation to operate and maintain the property.   Plaintiff formally complained to then-governor Corzine in a letter dated October 22, 2007, which detailed the charge of improper favoritism.

Similarly, plaintiff voiced opposition to the practice of giving street-end rights at the boardwalk and awarding legal services contracts to political contributors.   As to the latter, plaintiff asserts that he helped implement the Department of Law to handle the City's legal affairs in-house and attempted to veto City Council's contrary decision to eliminate that department, claiming their action violated budgetary laws and regulations.

Additionally, plaintiff objected to Mayor Evans' effort to hire his personal attorney as City solicitor and complained about Evans' conflict of interest in interceding in a disciplinary matter of a fire department captain, given that that was Evans' former position.   Relatedly, during Marsh's forty-three day tenure as acting mayor, plaintiff objected to Marsh's termination of City solicitor Baldwin, whose efforts to collect the $850,000 Langford/Marsh settlement plaintiff supported.   In this regard, plaintiff publicly insisted that Langford and Marsh repay the settlement monies they wrongly received.

There also seems no genuine dispute but that during his tenure as BA and ABA, plaintiff suffered adverse employment actions.   Early on, after his lawsuit against the City was settled on August 8, 2005, and plaintiff was returned to the ABA position, Langford's administration failed to afford plaintiff permanent Civil Service status and then when the BA retired, plaintiff was bypassed for that promotion in favor of the City's Director of Health and Human Services.   Having ultimately won appointment to that position during the aborted term of Langford's successor, Mayor Levy, plaintiff was soon thereafter effectively marginalized by Marsh, who became acting mayor upon Levy's resignation.   On October 22, 2007, Marsh issued the memo stripping plaintiff of his authority to sign any documents or schedule any meetings without Marsh's approval and ordering plaintiff to advise Marsh when he was expected to be out of the office.

City Council then failed to select plaintiff to fill out the balance of Levy's term, opting instead to appoint Evans, who agreed not to bring back solicitor Baldwin.   Evans promptly removed plaintiff as BA, appointing Fredericks instead and effectively demoting plaintiff to his former position of ABA. Worse yet, plaintiff's salary was recalculated at the lower amount of $63,000, less than the $88,500 he had previously earned in that position and less than the $89,232 his immediate predecessor was making.   Plaintiff asserts that upon his return to the ABA position, his job responsibilities were limited, City solicitors were instructed not to speak to him and, in the March 20, 2008 memo from Marsh, he was banned from City Council meetings and from speaking to City Council members.

When, in the Spring of 2008, plaintiff became a mayoral candidate while retaining the position of ABA, he was subjected to two disciplinary suspensions, ostensibly for conducting political activity during work hours and making inappropriate comments about a personnel matter during a debate;  however, plaintiff attributed the disciplinary sanctions to the fact that he had contested a City contract that Evans was attempting to award to a politically connected lawyer.

In any event, Langford won the election and twice failed to promote plaintiff to the BA position, first at the outset of his term and again when a vacancy arose.   In fact, plaintiff asserts that his functions and responsibilities as ABA were effectively usurped by the BA's newly-hired assistant, Carrington.   To compound the matter, plaintiff's efforts to correct his salary were rebuffed by the administration.   Langford denied plaintiff's request to be paid his predecessor's salary while he raised the newly-hired BA's salary beyond both that earned by her immediate predecessor and set by ordinance.

Lastly, within months of plaintiff filing his initial complaint in this matter, he was informed of the City's intention to lay him off effective May 2010 pursuant to a RIF plan approved by Langford.   Plaintiff was the sole employee from his department to be laid off.   Due to his Civil Service title, plaintiff had the option to transfer back to his former position with the Mercantile Division, although he claims that this position would have included a pay reduction and diminished responsibilities.   Consequently, plaintiff resigned rather than take the position.

Clearly, then, there is evidence from which a jury could reasonably find that plaintiff engaged in protected whistleblowing activity and that he suffered adverse employment actions from his employer.   At issue is whether the evidence could also lead a factfinder to reasonably conclude there was a causal connection between the two.   Based on our review of the record, we are satisfied that there exist genuine issues of material fact on this element of plaintiff's CEPA claim sufficient to withstand the City's summary judgment motion.6

Defendants maintain that the adverse employment actions of which plaintiff complains were not the result of retaliation but rather:  (1) the discretionary decisions of two different mayors who found plaintiff not qualified for higher office;  (2) plaintiff's own improper conduct giving rise to, among other things, his two disciplinary suspensions;  and (3) a fiscal crisis faced by the City. While there certainly is evidence to suggest defendants' account, theirs is not the exclusive version of events supported in the summary judgment record.   As noted, in this preliminary stage, we accord the non-movant plaintiff all favorable inference and view the proofs in the light most advantageous to him.  Brill, supra, 142 N.J. at 540.   Measured by this relaxed standard, we find disputed issues of fact as to the linkage between plaintiff's whistleblowing activity and the adverse employment actions he suffered.   Indeed, based solely on the temporal proximity of the two, plaintiff has offered sufficient circumstantial evidence allowing a reasonable factfinder to conclude that defendants' account does not provide the “whole story,” see Maimone, supra, 188 N.J. at 237, and that in many of the cited instances, plaintiff's whistleblowing activity was more likely the motivating and determinative factor for the adverse employment action.

For instance, after plaintiff reported to the Ethics Board violations of the City ordinance by certain Council members abusing car privileges and after confiscating two such City-owned vehicles, City Council President Marsh returned the vehicles to the allegedly offending councilmen and later issued an order that plaintiff no longer be permitted to attend Council meetings.

Likewise, after plaintiff instructed City solicitor Kim Baldwin to pursue efforts to recoup settlement monies wrongly paid to Langford and Marsh, City Council selected Evans to serve as acting mayor to finish Levy's unexpired term, over plaintiff, who had planned to rehire Baldwin after her earlier termination by Marsh.   When plaintiff later objected to Evans' plan to hire his personal attorney as City Solicitor and to another conflict of interest involving the acting mayor, Evans removed plaintiff from his BA position and returned him to ABA at a salary lower than his predecessor in office.   And upon his return to the ABA position, plaintiff was alienated and stripped of many of his powers and authority.

Ultimately, plaintiff was laid off during the second administration of Mayor Langford who, by his own admission, blamed plaintiff for the Hatch Act charges leveled against him;  believed plaintiff had provided false information to the authorities;  suspected plaintiff was “hell bent” to destroy him;  and acknowledged that plaintiff “vigorously” raised the issue of the settlement monies during the primary campaign in which plaintiff opposed him.

These incidents are simply illustrative of the evidence suggesting a causal connection between plaintiff's so-called protected whistleblowing activity and the adverse employment actions to which he was subjected by the City's governing body.   It bears repeating that to survive a summary judgment motion, plaintiff need not demonstrate the evidence necessarily and inevitably leads to the conclusion that his employer acted in retaliation, only that the proofs would reasonably support that finding.   Here, for all the reasons mentioned, we conclude that plaintiff has met his prima facie burden and that his CEPA claim against the City warrants jury resolution.

II.

We conclude similarly as to plaintiff's punitive damages claim against the City. Punitive damages are governed by the Punitive Damages Act, N.J.S.A. 2A:15–5.9 to –5.17. Under N.J.S.A. 2A:15–5.12(a),

[p]unitive damages may be awarded to the plaintiff only if the plaintiff proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions.   This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.

In deciding whether to award punitive damages, the factfinder considers many factors, including

(1) [t]he likelihood, at the relevant time, that serious harm would arise from the defendant's conduct;

(2) [t]he defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct;

(3) [t]he conduct of the defendant upon learning that its initial conduct would likely cause harm;  and

(4) [t]he duration of the conduct or any concealment of it by the defendant.

[N.J.S.A. 2A:15–5.12(b).]

CEPA allows for an award of punitive damages.  Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 419 (1994) (noting that punitive damages are available under CEPA);  see also Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 132–33 (1999) (noting that punitive damages are available under the LAD).   However, under both the LAD and CEPA “[a] greater threshold than mere negligence should be applied to measure employer liability for punitive damages;  they are to be awarded when the wrongdoer's conduct is especially egregious but only in the event of actual participation by [965] upper management or willful indifference.”  Abbamont, supra, 138 N.J. at 419 (internal quotation marks omitted) (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 269 N.J.Super. 11, 31 (App.Div.1993)).   Thus, an award of punitive damages forces the factfinder to analyze the intent of the bad actor to find willful bad conduct or indifference.

Comment 2.3.4 to Rule 4:46–2 notes that summary judgment “should ordinarily not be granted where an action or defense requires determination of a state of mind or intent, such as claims of waiver, bad faith, fraud or duress.”   Pressler & Verniero, Current N.J. Court Rules, comment 2.3.4 on R. 4:46–2 (2014).   In fact, when “a claim or defense involves proof of an actor's state of mind, ordinarily summary judgment is inappropriate.”  Valley Nat. Bank v. P.A.Y. Check Cashing, 378 N.J.Super. 406, 421 (Law Div.2004), aff'd o.b. 378 N.J.Super.   234 (App.Div.2005).

We have previously and specifically warned against granting summary judgment in cases whose analysis relies heavily on questions of intent and credibility.  McBarron v. Kipling Woods L.L.C., 365 N.J.Super. 114, 117 (App.Div.2004) (“The cases are legion that caution against the use of summary judgment to decide a case that turns on the intent and credibility of the parties.”);   see also G & W, Inc. v. Bor. of E. Rutherford, 280 N.J.Super. 507, 514 (App.Div.1995) (“[S]ummary judgment is generally not appropriate when motive, intent and the credibility of witnesses are involved”).

Here, the motion court did not rule explicitly on the issue of punitive damages because it granted defendants summary judgment dismissal of all of plaintiff's claims.   Since we hold plaintiff's CEPA count survives and because the issue of punitive damages clearly rests on City's intent, this is a question best left for jury resolution.   Indeed, the sheer volume of retaliating acts alleged (i.e., plaintiff's salary decrease;  his ban from attending City Council meetings;  the restrictions placed on his ability to make decisions in his role as ABA, the assignment of another person, Carrington, who took over many of plaintiff's job responsibilities;  the plan that called for plaintiff's layoff only months after he filed a complaint) and the involvement of more than one public official in these actions (Langford, Marsh, Evans and Scott) favor allowing the jury to determine whether or not these incidents, singly or collectively, rise to the level warranting punitive damages.

III.

We come to the opposite conclusion with regard to plaintiff's LAD claims of reverse racial discrimination and hostile work environment.

(A)

To establish a prima facie case for a failure to hire or promote under the LAD, plaintiff must show, by a preponderance of the evidence that he “(1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained [37] open and the employer continued to seek applications for persons of plaintiff's qualifications.”  Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550 (1990)).   When the allegations center on a firing, plaintiff must show that “(1) he was in the protected group, (2) that he was performing his job at a level that met his employer's legitimate expectations, (3) that he nevertheless was fired, and (4) that [the employer] sought someone to perform the same work after he left.”  Erickson, supra, 117 N.J. at 550–51 (quoting Clowes v. Terminix Int'l, 109 N.J. 575, 597 (1988)).

Once a prima facie case is established, a presumption of discrimination arises and the burden then shifts to the defendant to show a “legitimate, non-discriminatory reason” for its employment action.  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L. Ed.2d 668, 678 (1973).   The plaintiff must then show that this reason is merely a pretext for discrimination.  Id. at 804, 93 S.Ct. at 1825, 36 L. Ed.2d at 679.

In cases where the plaintiff is not a member of a minority group, but rather alleging “reverse discrimination,” our Court has held that the presumption of discrimination based on membership in a protected class “is not necessarily justified.”  Bergen Commercial Bank, supra, 157 N.J. at 214.  “Therefore, under such circumstances courts have modified the first element of a prima facie case to require a showing of ‘background circumstances support[ing] the suspicion that the defendant is the unusual employer who discriminates against the majority.’ ”  Ibid. (quoting Erickson, supra, [44] 117 N.J. at 551).   However, the plaintiff can demonstrate “background circumstances” sufficient to raise an inference of discrimination “by establishing either that the plaintiff was better qualified for the position than the minority candidate selected or that the defendant had some reason or inclination to discriminate against the majority class.”  Id. at 214.

Here, plaintiff did not establish a reverse racial discrimination claim.   As the motion court noted

[p]laintiff has not met his burden of proving that he was discriminated against because of his race.   Preliminarily, [p]laintiff cannot allege reverse discrimination for Evans' action in not appointing him because Evans, like plaintiff, is a white male.   Plaintiff contends that Langford discriminated against him because of his race by not appointing him [BA], despite the fact that he was more qualified than the African–Americans [Langford] selected․  Plaintiff is certainly correct that there was some animosity toward him that is present in the record.   However, there is nothing to suggest that this animosity was racially motivated.

We agree.

While plaintiff may have established a prima facie case of retaliation for his whistleblowing activities, he has offered no “background circumstances” suggesting the City was an employer that discriminated against the majority.   Instead, plaintiff simply cites to the fact that Langford hired many African–Americans as directors of municipal departments, and offers no evidence, other than his self-serving assertion, that the mayor refused to hire Caucasians.   Aside from the fact that the mere hiring of qualified minority candidates is non-evidential of discrimination against the majority, plaintiff fatally overlooks the reality that during his employment with the City, when he alleges discrimination, he served under both African–American and Caucasian mayors and BAs.7 Neither Evans, who is white, nor Langford, appointed plaintiff BA and, whatever the reason, plaintiff has not established the selection had anything to do with race.   Nor has he demonstrated that the disciplinary sanctions imposed upon him by his supervisor, Carol Fredericks, a white female, or her decision to isolate him from the transition process prior to her resignation was motivated by racial animus or bias.

As noted, in reverse employment discrimination cases, the plaintiff bears a heavy burden of showing that the employer had some reason or inclination to discriminate against him on account of his majority status.   Here, the tension between plaintiff and the City's administration, and the adverse consequences that befell plaintiff because of it, existed irrespective of plaintiff's race.   Simply put, there is no evidence of reverse employment discrimination to warrant submission of the LAD claim to a jury.

(B)

Plaintiff also failed to establish his hostile work environment claim.   To establish a prima facie case of hostile work environment, the plaintiff must show “(1) the conduct complained of would not have occurred but for the employee's protected trait[ ];  (2) the conduct was severe or pervasive enough to make a(3) reasonable person of the same protected trait believe that (4) the conditions of employment and the working environment have been altered and the working environment has become hostile or abusive.”  Flizack v. Good News Home for Women, Inc., 346 N.J.Super. 150, 158–59 (App.Div.2001) (citing Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 603–04 (1993)).   When assessing whether conduct is sufficiently “severe or pervasive,” we look to the totality of the circumstances and the harassing conduct itself rather than its “effect on the plaintiff.”  Lehmann, supra, 132 N.J. at 606.   We consider “(1) the frequency of [the conduct];  (2) its severity;  (3) whether it is physically threatening or humiliating, or a mere offensive utterance;  and (4) whether it unreasonably interferes with an employee's work performance.”  Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008) (internal quotation marks omitted).

A single comment or act can form the basis for a hostile work environment claim only in a “rare and extreme case.”  Lehmann, supra, 132 N.J. at 606–07.   Our courts have found a hostile work environment, however, where the language or incident was sufficiently severe to make a reasonable person see the work environment as hostile as a result.  Ibid.;  see Taylor v. Metzger, 152 N.J. 490, 495, 503 (1998) (in finding a hostile work environment claim where supervisor referred to plaintiff as a “jungle bunny,” the Court noted “the severity of the remark ․ was exacerbated by the fact that it was uttered by a supervisor”);  Flizack, supra, 346 N.J.Super. at 156 (finding that incident in which supervisor said to plaintiff “[a]re you still pissed at [3] me ․ [b]ecause if you are I am going to have to stare in them big blue eyes and pat those white titties[,]” while stroking plaintiff's breasts, could establish a hostile work environment claim).

Here, the motion court found that plaintiff's allegations were

insufficient to establish a claim for hostile work environment.   First, [p]laintiff has not established that the way he was treated by the City had anything to do with his race.   In the time [p]laintiff was employed as BA and ABA, there was a white mayor, a white BA, an African–American mayor, and an African–American BA. Neither the white [m]ayor (Evans) nor the African–American [m]ayor (Langford) chose to keep or appoint him as BA because of his personality and work behavior, which existed irrespective of his race.   Even more, [p]laintiff has not shown that there was any severe discriminatory conduct which would unreasonably interfere with his work performance.   The record reflects admitted tension between [p]laintiff and City Council, the Mayors and BAs;  however, tension, without any evidence of discriminatory conduct, is insufficient to establish a claim for hostile work environment.

In our view, the conduct of which plaintiff complains is neither severe nor pervasive so as to create a hostile work environment.   First, we find no evidence of harassing conduct that took place during plaintiff's employment with the City. The two comments cited by plaintiff as being racially charged were Langford's remark that plaintiff was the “token white guy,” and an aide's statement that “[y]ou're just a white guy.   And I don't even know what you are doing here.”   Neither of these comments, however, rise to the level of the severity found in Taylor, supra, where a supervisor called the employee a “jungle bunny,” or in Flizack, supra, where the supervisor referred to “white titties” while grabbing the employee's breasts.   Just as significant, while the conduct complained about in those cases was carried out by supervisors during the course of the plaintiff's employment, the allegedly offending conduct here took place during a political campaign, before plaintiff was even hired by the City in 2002.   Neither Langford nor his aide were plaintiff's supervisors at that time nor were these comments made in the course of his employment.   On the contrary, these remarks were made in 2001, almost a decade before plaintiff filed the instant lawsuit.   No reasonable person in plaintiff's position would objectively consider the conduct here to create a hostile work environment because of race.   Consequently, plaintiff's hostile work environment claim under the LAD was properly dismissed.8

IV

Lastly, plaintiff contends that the matter should be assigned to a different judge on remand because the motion court had demonstrated its partiality.   We disagree.

Rule 1:12–1(d), upon which plaintiff relies, provides that “[t]he judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge ․ has given an opinion upon a matter in question in the action․”  However, the rule “shall not prevent a judge from sitting because of having given an opinion ․ on any question in controversy in the pending action in the course of previous proceedings therein․”  R. 1:12–1.

To be sure, “a matter remanded after appeal for a new trial should be assigned to a different judge if the first judge had, during the original trial, expressed conclusions regarding witness credibility.”   Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:12–1 (2014);  see also R.L. v. Voytac, 199 N.J. 285, 306 (2009);  Leang v. Jersey City Bd. of Educ., 399 N.J.Super. 329, 380 (App.Div.2008) (remand ordered before different trial judge where judge ruling on motion for summary judgment expressed opinions as to the credibility of parties), aff'd in part and rev'd in part on other grounds, 198 N.J. 557 (2009).

Obviously, as an appellate court, we have the “authority ․ to direct that a different judge consider the matter on remand in order to preserve the appearance of a fair and unprejudiced hearing.”   Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:12–1 (2014);  see Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 59–60 (2009).   However, this power “is ordinarily sparingly exercised.”   Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:12–1 (2014).   And, absent evidence or appearance of bias, a judge should not be disqualified due solely to a reversal or modification on appeal of his or her order.  Ibid.;  Strahan v. Strahan, 402 N.J.Super. 298, 318 (App.Div.2008).

Here, the motion judge expressed no opinion about the credibility of the parties, either in his oral remarks during argument or in his comprehensive eighteen-page written opinion.   The passing comments of the judge of which plaintiff now complains were neither attacks on plaintiff's credibility nor expressions of bias or partiality in this matter.   We therefore discern no ground to direct the assignment of a different judge on remand.

Affirmed in part;  reversed and remanded in part.

FOOTNOTES

1.  FN1. Langford subsequently testified in depositions that he held plaintiff responsible for the charges against him, which he maintained were based on false accusations.

2.  FN2. Plaintiff also restricted Council member Robinson's access to City Hall, claiming that there were reports that he was living in the building.

3.  FN3. During the mayoral campaign, plaintiff was reprimanded by Fredericks for conducting political activity during work hours in violation of City policy and was suspended without pay for three days for disclosing confidential personnel information during a May 6, 2008 debate.   Although he signed a memorandum of understanding stating that he did not contest the latter charges, he claims the disciplinary suspension was the result of refusing to sign a contract paying the law firm of Bernstein and George $250,000 to represent the City.

4.  FN4. The motion court also held that “CEPA only permits liability for an employer,” N.J.S.A. 34:19–3, and thus dismissed Counts 1–4 of plaintiff's complaint against the individual defendants, Mason, Robinson, Marsh, Mancuso, Tibbit and Langford.

5.  FN5. In order to establish constructive discharge, an employee must show that he took “all reasonable steps necessary to remain employed.”   Zubrycky v. ASA Apple, Inc., 381 N.J.Super. 162, 166 (App.Div.2005).

6.  FN6. We note that although the motion judge held as a matter of law, that the individual defendants in this matter bear no liability on plaintiff's CEPA count, there is case law that suggests that individual defendants similarly situated to Langford and Marsh could be held liable under CEPA. See Maw v. Advanced Clinical Commc'ns, Inc., 359 N.J.Super. 420, 439–40 (App.Div.2003), rev'd on other grounds, 179 N.J. 439 (2004) (construing N.J.S.A. 34:19–2(a) as allowing for individual liability).   However, because plaintiff has failed to raise the issue of the individual defendants' liability under CEPA in his brief on appeal, thus precluding appellate review and resolution, Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J.Super. 384, 393 (App.Div.2012), we do not address this issue.

7.  FN7. We do not mean to suggest that a white male cannot racially discriminate against another white male, since the test is whether the employer might have a reason or motive to be “the unusual employer who discriminates against the majority[,]”Bergen Commercial Bank,supra, 157 N.J. at 214 (quoting Erickson,supra, 117 N.J. at 551), a standard that does not require the employer be a member of the favored minority himself.

8.  FN8. We reach the same conclusion with respect to plaintiff's claim of intentional infliction of emotional distress (IIED).   Although not briefed by plaintiff and thus waived, Telebright Corp.,supra, 424 N.J.Super. at 393, we nevertheless briefly address the propriety of the motion court's dismissal of this claim.To establish a claim for IIED, a plaintiff must show that (1) the defendant intended to cause emotional distress;  (2) the conduct was extreme and outrageous;  (3) the defendant's actions proximately caused the emotional distress;  and (4) that the emotional distress was severe.  Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988).   For conduct to be “extreme and outrageous” it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  Ibid. (internal citations omitted).   Here, there is no evidence that any of the individual defendants or the City engaged in any “extreme” or “outrageous” conduct, or that any of defendants' actions of which plaintiff complains was intended to cause him emotional distress.

PER CURIAM

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