NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Plaintiff was employed as the Director of Legal and Governmental Affairs of defendant New Jersey Higher Education Assistance Authority (HESAA) from May 2006 until December 23, 2009, when she was discharged by defendant E. Michael Angulo, HESAA's Executive Director. She filed this lawsuit against HESAA, Angulo and Eugene Hutchins, HESAA's Chief Financial Officer, alleging that her employment was terminated in retaliation for her engaging in protected activity under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to-14, (count one) and in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-49, on the basis of race (count three).1 She appeals from an order that granted summary judgment to defendants, dismissing her CEPA and LAD claims.

In her appeal, plaintiff argues the trial court erred in granting summary judgment, dismissing her race discrimination claim under LAD, because she presented prima facie evidence to support her claim and sufficient evidence that HESAA's stated reasons for her termination were merely pretext. She also argues the trial court erred in concluding her LAD claim was barred by the exclusivity provision of CEPA, N.J.S.A. 34:19-8, and that her CEPA claim was erroneously dismissed because she engaged in protected conduct under the statute. Although we agree plaintiff's LAD claim was not barred by CEPA's exclusivity provision, we affirm the dismissal of plaintiff's complaint for the following reasons.

I.

We review an order granting summary judgment de novo, applying the same standard as the trial court. Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). The competent evidential materials are viewed in the light most favorable to the non-moving party to determine whether the evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

The facts, drawn from the competent evidential materials,2 and seen in the light most favorable to plaintiff, can be summarized as follows.

Angulo hired plaintiff, an African-American attorney,3 in May 2006, to serve as HESAA's Director of Legal and Governmental Affairs. They knew each other from their prior employment in government service. At the time she was hired, plaintiff understood she was an at-will employee.

In her capacity as Director of Legal and Governmental Affairs, plaintiff was "responsible for providing legal analysis, advice and opinions on all issues affecting [HESAA], monitoring Federal and State legislation impacting the Authority and ensuring regulatory compliance." Plaintiff acknowledged that "[a]s part of her duties. . ., it was [her] responsibility to ensure that HESAA was in compliance with and notified of all Executive Orders."

On September 26, 2006, shortly after plaintiff started with HESAA, Governor Jon S. Corzine signed Executive Order No. 37 (E.O. 37). The purpose of this order was to "implement[] a series of reforms to increase the transparency, efficiency and accountability of New Jersey's independent authorities." E.O. 37 required that

Plaintiff testified that she discharged her responsibility for ensuring compliance with E.O. 37 by preparing a PowerPoint presentation that "inform[ed] the board and the senior management of HESAA of the specific requirements of Executive Order 37" in October 2006. The PowerPoint presentation contained a slide highlighting the requirement that HESAA prepare an annual report. Plaintiff did nothing further to track compliance because she was assured that the requirements of E.O. 37 were already met by HESAA's annual reports and that it was the responsibility of others to prepare those reports.

On December 7, 2009, Angulo received a memo from the chairman for Governor-Elect Chris Christie's transition team. The memo requested that Angulo provide a variety of documents, including HESAA's annual reports pursuant to E.O. 37 for 2007 through 2009. Angulo circulated the memo to Hutchins, Francine Andrea, Chief Operating Officer, and plaintiff, requesting they get him the documents by that Friday. He subsequently assigned the task to plaintiff. Plaintiff acknowledged the assignment and reported that she and Hutchins were "preparing for submission to you by Friday."

On December 9, 2009, plaintiff sent Angulo an email quoting E.O. 37's annual report requirements and informed him the last annual report prepared was for 2006-2007. She stated, "I understand for cost-saving measures we made them biannual [sic] with the next Annual Report due the end of 2009 which would cover 2008-2009." She suggested that although E.O. 37 called for annual reports, the requirements of the Executive Order might be satisfied by various other documents that had been submitted to the Governor's office.

Angulo responded,

By return email, plaintiff agreed to do so. She denied any involvement in the decision to change to biennial reporting, adding she did "not know how this determination was made nor quite frankly, if [she] would have distinctly remembered the reference to . . . [E.O. 37] as a hinderance [sic]." She also agreed they should "use this opportunity to review and develop a comprehensive strategy" as Angulo had stated.

Plaintiff testified that Angulo met with her alone in his office on December 17, 2009, and said, "I don't want to have to fire you, but I need to cover my ass in case the Christie transition team comes after me. . . . for . . . failure to file EO 37 compliant reports." She stated Angulo also said, "he needed to place a letter of reprimand in [her] file, . . . but he was so magnanimous about it, he would allow [her] to draft my own discipline." Plaintiff said she was "stunned," but agreed to do so. Although he did not suggest any specific discipline she should write for herself, it was her understanding that she was to "[d]raft a letter of discipline that would have put all of the responsibility for their failure to issue an annual report upon [her]."

Plaintiff testified she felt "deeply troubled" after this meeting, and "knew it was . . . improper, unethical, and [she] was being used to be the scapegoat for the [HESAA]'s failure to comply with any annual report solely because [she] was a black woman."

Plaintiff said she told Angulo sometime prior to December 22, 2009, that she had reached out to her contacts in other state agencies to seek guidance on how they filed their E.O. 37 annual reports. According to plaintiff, Angulo became "enraged" and "ballistic" and ordered her not to "speak to anyone else about this, any other agency again."

Plaintiff admitted she suspected she was going to be terminated. She testified that, as a result of Angulo's reaction, she contacted Judy Lieberman at the OIG on the following day "to report the unlawful and unethical ultimatum that [she] was given by Michael Angulo on December 17, 2009."

Plaintiff testified that a meeting was scheduled for December 23, 2009 and Angulo asked her to bring the following: "[t]he legal department's responses to the various Executive Orders," a plan regarding E.O. 37 and the reprimand she was to write "accepting full responsibility for the failure to issue an E.O. 37 compliant annual report." She did not bring any documents specifically responding to E.O. 37 because Joel Mayer, the Chief Compliance Officer, was working on a response.

Plaintiff's meeting with Angulo began with a review of certifications she had prepared responsive to other executive orders. She testified that, when they reached the end of the certifications,

After this conversation, plaintiff was given ten minutes to gather her belongings. At her deposition, plaintiff confirmed that she called Angulo a "Napoleonic tyrant" and told him to have courage. Plaintiff also admitted she "was given the option by Mr. Angulo to resign or be fired."

Angulo's account differed from plaintiff's. He stated he asked plaintiff to "conduct an investigation regarding HESAA's compliance with executive orders and to undertake that analysis and develop a plan going forward to insure that HESAA would remain compliant with those executive orders." He maintained that plaintiff was terminated for insubordination, specifically "[h]er refusal to comply with a directive or request that [he] had asked her to undertake" and her subsequent reaction, which he found "personal[ly] offensive."

Angulo stated plaintiff said he "had a Napoleonic complex," and called him "paranoid," "weak," and "a bully, a tyrant, among others." At that point, Angulo asked Andrea to come into his office. When she arrived, Angulo asked plaintiff to repeat the things she had just said to him. Plaintiff told Andrea she had refused to do what Angulo asked and then recited the "derogatory" names she called him. Angulo specifically recalled her repeating "tyrant, bully, Napoleonic complex." He then asked her to tender her resignation and when she refused, he terminated her.

Angulo maintained that he did not fire plaintiff until after she began to use abusive language towards him. Angulo denied he terminated plaintiff for any reason other than her actions during the December 23 meeting. Angulo denied ever telling plaintiff that she was going to be reprimanded or that she should write her own reprimand.

The record includes three prior instances of unprofessional or insubordinate conduct by plaintiff. After a meeting on February 16, 2007, plaintiff sent an email to Angulo and others expressing her "sincere remorse for the tenor and tension [her] comments brought into the meeting." During a meeting held on January 28, 2008, plaintiff remarked, "that is bullshit" in response to comments made by Angulo. As a result, Angulo issued a written warning and placed plaintiff on "formal disciplinary action" for three months. The written warning advised plaintiff that her behavior was "unprofessional, inappropriate, and insubordinate," and that future misconduct could result in immediate termination. A third incident occurred in May 2009, when an employee who assisted plaintiff with her computer scanner made a written complaint stating plaintiff was rude to him. Angulo asked plaintiff to apologize. She agreed, but then failed to do so. Angulo then directed her to do so.

II.

Plaintiff contends the trial judge erred in dismissing her CEPA claim. We disagree.

To establish a prima facie case of retaliatory discharge under CEPA, plaintiff was required to show: (1) "she reasonably believed . . . her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy"; (2) "she performed a `whistle-blowing' activity described in N.J.S.A. 34:19-3(c)"; (3) "an adverse employment action was taken against . . . 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). Plaintiff alleged she satisfied these requirements because: (1) she reasonably believed Angulo's direction that she write herself up for discipline was unlawful and a jury could reasonably find such direction constituted fraud and a violation of public policy; (2) she engaged in protected activity by reporting Angulo's directive to the OIG and complaining she was targeted based on her race, a violation of N.J.S.A. 10:5-12; (3) her employment was terminated; and (4) the termination was causally related to her whistleblowing activities.4

The first of these prongs is "a pivotal component." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 32 (2014). The plaintiff must identify an "authority in one or more of the categories enumerated in the statute" that she reasonably believes has been violated. Id. at 32-33. Although the employer's conduct need not constitute an actual violation for the CEPA claim to be viable, Dzwonar, supra, 177 N.J. at 462, the identified authority "provides a standard against which the conduct of the defendant may be measured." Hitesman, supra, 218 N.J. at 33. Plaintiff has identified the violation as Angulo's alleged fraud in instructing her to prepare a written discipline of herself. When a CEPA claim is based on fraud, N.J.S.A. 34:19-3(a)(2), -3(c)(2), "[t]he focus is on whether the employee making the complaint reasonably believed that the activity was occurring and that it amounted to fraud." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 557 (2013) (citing Estate of Roach v. TRW Inc., 164 N.J. 598, 613 (2000)).

Even affording plaintiff the liberal construction appropriate under this remedial statute, the actions she attributes to Angulo fail to support a reasonable belief that his instruction that she prepare a reprimand for her file constituted fraud. Giving plaintiff the benefit of all inferences, she was not responsible for the actual preparation of the annual E.O. 37 compliant reports. However, she does not dispute that she was responsible for assuring HESAA's compliance with all executive orders. It is also undisputed that, as of December 2009, no annual reports had been submitted since the biennial report for 2006-07. There is a conflict in the description of what Angulo asked of plaintiff. According to Angulo, he merely asked for her review of what had occurred and a plan for going forward, an account that receives some corroboration in the emails exchanged between Angulo and plaintiff on December 9, 2009. Even if we limit our consideration to plaintiff's description of the "ultimatum" Angulo posed to her, she merely claims Angulo asked her to take "full responsibility" for HESAA's deficient compliance. Plaintiff explicitly testified that defendant did not instruct her at all as to the content of her "disciplinary memo." She did not allege that Angulo told her to fabricate facts, falsify documents, or falsely implicate others in the memo. The only "false" information she contends Angulo required her to include was that she was responsible for the failure of HESAA to file a compliant E.O. 37 annual report. These facts are patently insufficient to support a reasonable belief that Angulo's alleged demand constituted fraud.

The facts also fail to support a reasonable belief that Angulo's actions violated public policy. A claim under N.J.S.A. 34:19-3(c) requires a "showing that the `clear mandate of public policy' . . . is one that `concern[s] the public, health, safety or welfare or protection of the environment.'" Maimone v. City of Atl. City, 188 N.J. 221, 231 (2006). "[T]he complained of activity must have public ramifications, and . . . the dispute between employer and employee must be more than a private disagreement." Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 445 (2004); Turner v. Associated Humane Societies, Inc., 396 N.J.Super. 582, 594 (App. Div. 2007). A complaint that "deals with the employee's personal harm, not harm to the public" is not viable under N.J.S.A. 34:19-3(c)(3). Turner, supra, 396 N.J. Super. at 594 (citing Cosgrove v. Cranford Bd. of Educ., 356 N.J.Super. 518, 525 (App. Div. 2003)). As the dispute here solely concerns whether plaintiff was improperly told to assume blame for a deficiency that would impact her personal employment, there were no public ramifications to the alleged conduct.

As to her claim that defendants violated CEPA by firing her in retaliation for alleging racial discrimination, plaintiff cannot overcome the timeframe set forth in her own testimony. Plaintiff stated that she accused Angulo of targeting her because she was black only after he fired her. Although plaintiff also alleges she reported Angulo's "ultimatum" the previous day to the OIG, plaintiff proffers no evidence that she included the accusations of racially disparate treatment when speaking with the OIG. Accordingly, plaintiff failed to show her allegations of racial discrimination could form the basis of her CEPA claim.

We therefore conclude summary judgment was properly granted, dismissing the CEPA claim.

III.

Plaintiff argues that the trial judge erred in concluding the CEPA exclusivity provision, N.J.S.A. 34:19-8, barred her race discrimination claim under LAD. We agree.

While the waiver provision reflects a legislative intent to establish CEPA as the exclusive remedy for "employment interest rights arising in factually related contexts," Crusco v. Oakland Care Ctr., Inc., 305 N.J.Super. 605, 611 (App. Div. 1997), the Supreme Court has instructed that the waiver provision is to be applied narrowly. Young v. Schering Corp., 141 N.J. 16, 27 (1995). Only "those causes of action that require a finding of retaliatory conduct that is actionable under CEPA" are barred by this provision, id. at 29, such as a common-law retaliatory discharge claim under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). Young, supra, 141 N.J. at 27. The Court stated further, "The waiver exception does not apply to those causes of action that are substantially independent of the CEPA claim." Id. at 29; see also Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 502 (2006).

A claim is "substantially independent" from a "retaliatory discharge claim" where it "require[s] different proofs than those needed to substantiate the CEPA claim." Young, supra, 141 N.J. at 29, 31. In Battaglia, supra, 214 N.J. at 556 n.9, the Court noted that retaliation claims brought under CEPA and LAD are not necessarily mutually exclusive. Here, the proofs required to support plaintiff's LAD claim clearly diverge from what would have been necessary to support her CEPA claim.

Plaintiff's CEPA claim was premised on her allegation that defendants terminated her for her December 23, 2009 refusal "to create a false discipline" that "constituted fraudulent conduct and conduct which violated New Jersey public policy." Her LAD claim is based on her allegation that defendants targeted her based on her race prior to this refusal when they ordered her to write her own discipline and ultimately terminated her. The elements necessary to prove disparate treatment based on race are substantially independent from those required to prove a CEPA claim. We therefore conclude her LAD claim was not barred by the CEPA exclusivity provision.

IV.

Finally, we turn to plaintiff's argument that the trial judge erred in dismissing her claim of race discrimination under LAD. Based upon our de novo review of the evidence, we disagree.

The test employed to determine whether a plaintiff has presented a prima facie case of discrimination is that set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973). Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83 (1978). Under the first step of McDonnell Douglas, a plaintiff must put forth a prima facie case of discrimination. Peper, supra, 77 N.J. at 82-83. Plaintiff alleges she made a prima facie case of discriminatory termination, satisfying the following elements: (1) she was in the protected group, (2) she was performing her job at a level that met her employer's legitimate expectations, (3) she nevertheless was fired, and (4) the employer sought someone to perform the same work after she left. Zive, supra, 182 N.J. at 450; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97 (1988).

It is not disputed that plaintiff met the relatively modest test of establishing a prima facie case of discrimination. Therefore, the burden of production shifted to defendant "to articulate a legitimate, nondiscriminatory reason for the employer's action." Zive, supra, 182 N.J. at 449. At this stage, "[i]t is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L. Ed. 2d 207, 216 (1981). "The defendant employer need not prove that its proffered reason actually motivated its behavior because throughout this burden shifting model, the burden of proving intentional discrimination always remains with the plaintiff employee." Maiorino v. Schering-Plough Corp., 302 N.J.Super. 323, 347 (App. Div.), certif. denied, 152 N.J. 189 (1997).

Defendants have consistently maintained that plaintiff was discharged as a result of the events that occurred between December 9 and 23, 2009, citing her failure to prepare an investigative report regarding HESAA's non-compliance with E.O. 37 and insubordinate behavior on December 23. The emails in the record establish that plaintiff was charged with the task of reviewing HESAA's compliance and to report to Angulo with a plan for going forward. Although she has focused on her refusal to write a memorandum holding herself accountable for the non-compliance, the record shows that she failed to perform the analysis of compliance efforts or failures and did not provide a strategic plan as requested. Moreover, the charge of insubordination was also substantiated by plaintiff's own admissions. Thus, defendants satisfied their burden of presenting evidence of a legitimate, non-discriminatory reason for terminating plaintiff's employment.

As a result, the burden shifts back to the plaintiff to satisfy her ultimate burden that defendants' stated reasons were a pretext and the actual reason for her termination was intentional discrimination. Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). To defeat a summary judgment motion,

When weighing an employer's proffered legitimate reason for its actions, the employee's actual job "performance or other qualities" are considered and evaluated in "light of the employer's subjective standards, including work ethic." Viscik, supra, 173 N.J. at 21. Accordingly, "the employer's subjective decision-making may be sustained even if unfair." Ibid.; cf. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561 (1990) ("A `contentious' `at-will' employee can be fired for a false cause or no cause at all. That firing may be unfair but it is not illegal."). "What makes an employer's personnel action unlawful is the employer's intent." Zive, supra, 182 N.J. at 446. Therefore, "the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Svarnas describes two methods by which a plaintiff may demonstrate pretext. The first, presenting evidence that permits a factfinder to reasonably conclude the proffered reasons were fabricated, Svarnas, supra, 326 N.J. Super. at 82, is plainly unavailable here. It is undisputed that plaintiff was a high level executive who admitted it was her responsibility to ensure compliance with all executive orders. The fact that defendants may have placed more blame on plaintiff for the agency's failure to comply with E.O. 37 despite the failures of others does not constitute discrimination. It may be unfair, but unfair discipline or termination is not illegal. See Viscik, supra, 173 N.J. at 21. The emails provide documentary evidence of Angulo's requests. Her deposition testimony demonstrates she failed to perform the tasks she agreed to do. As to the other stated reason for plaintiff's termination, the charge of insubordination is also supported by plaintiff's deposition testimony, in which she conceded she used derogatory language toward Angulo after she was told to resign, but before she was told she was fired.

The second method is for the plaintiff to present evidence that allows the factfinder "to infer that discrimination was more likely than not the motivating or determinative cause of the [employer's action]." Svarnas, supra, 326 N.J. Super. at 82. Although she argues that the motivation for setting her up to be the scapegoat was because she is African-American, plaintiff fails to allege any prior instance of racial animus directed towards her by any defendant. See, e.g., Casseus v. Elizabeth Gen. Med. Ctr., 287 N.J.Super. 396, 406-07 (App. Div. 1996) (finding no pretext where "[t]he record . . . [was] barren of any evidence of racial hostility toward plaintiff, beyond whatever inference is to be drawn from the coincidence that plaintiff was black and was demoted"). Rather, plaintiff testified that she knew Angulo prior to her employment at HESAA and, in fact, he specifically sought her out for the position, resulting in her getting a significant pay raise. Further, plaintiff did not allege that Angulo directed any racial hostility towards any other member of a protected class.

To show defendants' stated reasons are "unworthy of credence," Svarnas, supra, 326 N.J. Super. at 82, plaintiff relies solely on the argument that Caucasian executives were not being disciplined or threatened with termination for alleged deficiencies or improprieties in their performance. Plaintiff stated that Andrea, Hutchins and Ann Marie Bouse, Chief Director of Communications, were responsible for the annual E.O. 37 report. She contended none of them were threatened with termination or disciplined for their failures because they are "White."

Plaintiff offers three past instances of preferential treatment to white executives to support her claim. However, each example lacks sufficient facts to permit the necessary comparison between defendants' treatment of plaintiff as opposed to members of the non-protected class. See Jason v. Showboat Hotel & Casino, 329 N.J.Super. 295, 305 (App. Div. 2000) ("A disparate treatment claim with regard to discipline requires comparison between the defendant's conduct toward plaintiff and other members of the protected class on one hand, and similarly situated employees not within the protected class on the other.").

As an example, she explained that Andrea was not disciplined for "engaging in the conduct, allegedly, that put us — that exposed us to an investigation" by both federal and State authorities. However, she had no firsthand knowledge as to the outcome of that investigation and proffered nothing to show Andrea was responsible for any wrongdoing or deficiencies.

She also claims that despite complaints, Hutchins was never disciplined for racially discriminatory conduct. However, plaintiff had no personal knowledge regarding such complaints. She attempts to rely upon a letter that described alleged instances of such conduct that was written by another employee in February 2012 — after Angulo was no longer Executive Director and more than two years after she was terminated. The letter is not competent evidence of disparate treatment regarding Hutchins and, even if it were competent, offers no proof of preferential treatment by Angulo.

Last, plaintiff states Angulo did not discipline Hutchins for "complaints" made by his subordinates about his "strong" management style. Plaintiff baldly asserts that this behavior "would have been a deficiency for an African-American executive," while offering no explanation or support for that conclusion.

These arguments and assertions, unsupported by competent evidence, fail to "cast[] sufficient doubt upon the employer's proffered legitimate reason[s]" that would permit a rational factfinder to find those reasons "unworthy of credence." Svarnas, supra, 326 N.J. Super. at 82. Accordingly, plaintiff has failed to satisfy her burden to show the actual reason for her termination was intentional discrimination. Viscik, supra, 173 N.J. at 14. Summary judgment was properly granted, dismissing plaintiff's LAD claim.

Affirmed.