PER CURIAM.
Plaintiffs Michele Stark and Barbara Ballistreri appeal from the grant of summary judgment to defendant South Jersey Transportation Authority (SJTA) dismissing their amended complaint alleging retaliatory action by SJTA, their employer. Earlier, they had filed complaints alleging violations of the Law Against Discrimination (LAD),
Initially, we note that plaintiffs filed a civil case information statement stating that plaintiffs "are appealing any and all adverse ruling (sic)." Their notice of appeal, however, only identifies the November 2, 2011 order dismissing the amended complaint alleging retaliation pursuant to CEPA. Plaintiffs assert three points of error, with a total of eighteen subheadings in their eighty-page brief. The November 2, 2011 order effectively ended the litigation, as plaintiffs' claims under LAD had been previously dismissed.
Plaintiffs attached numerous other orders without explanation or comment to their notice of appeal: 1) a February 6, 2009 order denying plaintiffs' application to file an amended complaint, and to extend discovery, signed by now-retired Judge Steven P. Perskie; 2) an August 5, 2009 order granting summary judgment dismissing plaintiffs' LAD claims against defendants SJTA and defendant Charles Giampaolo, denying defendants' application for summary judgment on plaintiffs' LAD retaliation claim, denying defendants' request to strike an expert report, and denying plaintiffs' cross-motion to bar defendants' evidence at trial; 3) a September 25, 2009 order issued by Judge William E. Nugent denying plaintiffs' motion under
Plaintiffs' notice of appeal does not comply with the Rule.
The Rule requires an appellant to identify the orders and issues he or she contends constitute error. The blanket statement that any "adverse ruling" is under consideration and attaching the orders does not suffice. This was protracted litigation, spanning several years, addressed by three judges, regarding plaintiffs' claims for violations of LAD and LAD retaliation, and CEPA retaliation. Clearly, more than what was provided here would have not only complied with the Rule, but would have allowed us to more expeditiously focus on the relevant information. In fact, many forms of relief were granted in the appended orders which were adverse to plaintiffs, but which were not addressed in their brief. Merely attaching the numerous extensive orders is simply inadequate.
This brings us to a point of greater concern.
Despite seventeen appendix volumes, the relevant circumstances are straightforward. Ballistreri commenced working for SJTA in 1982, and Stark in 1983. By 1990, they were assigned to the toll audit division, overseen by a manager. Plaintiffs worked in an office in a trailer located near the Farley Service Plaza on the Atlantic City Expressway. Their employment was subject to the terms of their union's collective bargaining agreement (CBA).
Our review of the extensive record, including transcripts of court proceedings, multiple depositions, answers to interrogatories, and certifications, clearly documents that plaintiffs had a history of abuse of sick time, of family leave, and of vacation time. By 2006, both plaintiffs were working "flex time," although it had never actually been authorized and was not permitted to union employees under the CBA. This "flex time" included their hours of arrival, departure, and the length of breaks.
Additionally, plaintiffs were chronically unable to complete their monthly audit reports on a timely basis. On March 27, 2006, Giampaolo became their manager. He was charged, among other things, with the responsibility of generating the audit reports of each month by the fifteenth of the following month. Giampaolo's efforts at obtaining plaintiffs' compliance with the report timelines, not to mention employee policies and procedures regarding vacation days, sick time, and family leave, proved fruitless.
In June 2006, Giampaolo, who had noticed that plaintiffs were not auditing individual toll collectors, created a computer program to do so. While implementing the program, he discovered that between June and July, an individual toll collector had stolen approximately $14,000. That individual was terminated and eventually prosecuted for theft.
In response to Giampaolo's discovery, plaintiffs filed a grievance against him under the CBA claiming a violation because he had performed union work even though not a member of the union. That grievance was withdrawn in September.
Plaintiffs also contacted SJTA's Affirmative Action Officer Doris McClinton in July 2006 to discuss their concerns regarding Giampaolo's allegedly harsh manner of dealing with them, his complaints about their productivity, and his responses to their leave requests. They objected to his requirement, for example, that they fill out a spreadsheet tracking their work, and document requests for sick leave. Plaintiffs did not accuse
Giampaolo of gender discrimination or sexual harassment. Shortly after plaintiffs met with the affirmative action officer, Giampaolo and Ballistreri had an argument regarding her sick time. There is no question that while the dispute was ongoing, Ballistreri was being treated for a serious health problem — but one which she never documented to the SJTA authorities and about which Giampaolo was unaware.
At McClinton's request, on July 21, 2006, plaintiffs prepared a written complaint regarding their concerns about Giampaolo. The complaint did not include allegations of gender discrimination or sexual harassment. Plaintiffs also emailed McClinton in August and September 2006 regarding their concerns, but made no reference to gender discrimination or sexual harassment. The conflicts between plaintiffs and Giampaolo escalated, until finally he instructed them in writing that they must come into work by 8:30 a.m., not leave prior to 4:30 p.m., and honor the lunch hour, which he designated to run from noon to 1:00 p.m.
Stark complained to Giampaolo that she had a family member whose disability required her to work flexible hours. But, Giampaolo refused her request because of plaintiffs' abuse of their privileges and failure to complete their work in a timely manner. Giampaolo reminded Stark that the work hours were set by union contract and that any change had to be approved by a human resource manager. Nonetheless, Stark neither consulted with human resources nor adhered to the work hours.
From August through September, both Stark and Ballistreri were significantly absent, using sick time, administrative leave, and vacation time, although no doctor's note was ever provided documenting the sick days. June 2006 was the last month for which plaintiffs completed an audit report.
During that timeframe, plaintiffs met with James Iannone, SJTA's then-acting executive director, after an altercation with Giampaolo. Iannone sent them home for the rest of the day on their own time. In September, plaintiffs met again with McClinton about Giampaolo, though at no time did they make any reference to sexual discrimination or harassment. Ballistreri never disclosed to McClinton that she had been treated for a health condition.
SJTA retained a private attorney to complete McClinton's investigation and issue a report regarding plaintiffs' complaint because numerous disciplinary charges had been filed against them in September. Simultaneously, SJTA requested that SMART Consulting, LLC (SMART), the firm it had retained to conduct a state mandated five-year management audit, complete plaintiffs' work. SMART issued a final report dated December 13, 2006, stating that plaintiffs were "seriously behind" in their work. It strongly recommended that toll revenue audit functions be performed by non-union members in the finance department, because it was a conflict of interest to have plaintiffs auditing toll collectors when all belonged to the same union.
Plaintiffs returned to work January 2, 2007, and met with Joel Falk, SJTA's director of ITT. Falk advised plaintiffs their jobs were going to be eliminated, in line with SMART's recommendations regarding conflicts of interest, and offered them other options. SJTA hoped to create two new union positions for plaintiffs, one in each toll plaza, that would be in line with their experience. Falk noted that the plan would require the agreement of Union Local 196. Plaintiffs agreed to accept the transfers. Because of the implementation of SMART's recommendations, Giampaolo was also moved to a different department.
Stark and Ballistreri were initially given jobs counting violators. Stark continued to work flex hours because of her family situation. Ballistreri was subsequently given a desk job in the toll repair department.
On February 28, 2007, plaintiffs filed suit against SJTA and Giampaolo alleging that, among other things, Giampaolo had improperly referred to another employee as a lesbian and told a woman in the office who had worked there part-time that she should engage in inappropriate sexual conduct at her "bachelorette party." Both of those employees, when deposed, denied these events occurred as plaintiffs described them. Both maintained that Giampaolo, who denied making the statements, had said nothing offensive. Other than those two allegations, there were no specific claims of sexual harassment or gender discrimination.
In April 2007, plaintiffs' positions were eliminated in accord with SMART's recommendation. Local 196 unsuccessfully grieved the action. Because SJTA and Local 196 could not agree upon new positions for plaintiffs, each plaintiff was allowed to "bump" a less senior union member to fill an existing position.
The SJTA's investigating attorney's report concluded that plaintiffs' allegations of harassment and retaliation could not be substantiated. Instead, she found Giampaolo's statements credible that, to the contrary, plaintiffs had been inappropriately and openly hostile towards him and failed to comply with his management directives. The attorney also found that plaintiffs had job performance issues and that Giampaolo's conduct constituted neither harassment nor retaliation.
Plaintiffs' disciplinary hearings were held on March 28, 2007, before Samuel Donelson, SJTA's Director of Engineering and Operations. Plaintiffs did not dispute the charges, other than to object that the CBA timelines had been violated.
At the conclusion of the hearing, Donelson upheld four of the five charges against Stark, finding that: (1) according to transponder data, she was tardy thirty-three times, left work early thirty times and returned late from lunch six times within fifty-three working days; (2) the time she logged into the computerized time entry system did not match the time she actually worked on numerous occasions; (3) records confirmed that she was not completing her work in a timely manner and that this inefficiency could be attributed to her dereliction of her duties; and (4) she had a history of insubordination but offered no defense to the current charges. Donelson deemed inconclusive the evidence in support of the charge of abuse of sick time. He imposed the ten-day unpaid suspension sought by SJTA, but opined that the evidence against Stark warranted termination. Donelson further noted that Stark had been allowed to work flex time notwithstanding the absence of any CBA provision permitting it. He recommended that this privilege be revoked.
Donelson upheld all three of the charges against Ballistreri, finding that: (1) records confirmed that she did not complete her work in a timely manner, or meet established deadlines for the monthly toll audit, and that this inefficiency could be attributed to her dereliction of her duties; (2) she not only had a history of insubordination but offered no defense to the current charge; and (3) she had exceeded her allotted number of sick days per year without seeking approval and had provided no doctor's note regarding her absences. Donelson upheld SJTA's determination to suspend Ballistreri for ten days without pay, although he believed that termination was warranted based upon her conduct.
In order to initiate the bumping process, on May 14, 2007, plaintiffs and union president Dominick Penn, met with Paul Heck, SJTA's then-Human Resources Manager, and Wade Lawson, SJTA's Deputy Executive Director, in the boardroom at the Farley Administration Building. Plaintiffs were shown a seniority list and asked to select the jobs they wished to take. During the meeting, plaintiffs and Penn stepped out multiple times to "caucus." Plaintiffs asked Heck and Lawson whether they would be able to continue working their current hours of 8:30 a.m. to 4:30 p.m. if they took any one of the "clerk" positions, and also whether flex time was available. Heck and Lawson called the various departments and made inquiries about the work hours. Ultimately, neither plaintiff was willing to commit that day to a particular job. Each insisted that she had to know whether the work hours could be adjusted to accommodate her.
Stark chose to "bump" the existing clerk at the State Police barracks as of July 2007, and worked from 8:30 a.m. to 4:30 p.m. Her commute remained the same and she received the same salary. Ballistreri assumed the position of clerk in Toll Repair and likewise suffered no loss in salary.
According to Donelson, Stark's new supervisor, there was not a single union member among the 136 employed in his department who had ever been provided with flex hours. Stark had never formally requested the flexible schedule she had previously enjoyed. Stark did request, and was granted, FMLA leave from Sept 1, 2007 through August 31, 2008, and again from September 2008 through August 2009.
In their July 30, 2008 interrogatory answers, plaintiffs claimed, for the first time, to be in possession of a CD containing certain recorded "admissions" made by Heck and Lawson during a May 14, 2007 meeting while plaintiffs were not in the room. However, plaintiffs did not produce the CD (which actually contained nine hours of multiple recorded conversations) until September 11, 2008, and it was not until October 20, 2008, that plaintiffs provided defense counsel with a one-page summary describing the contents of the CD. The summary described the recorded May 14, 2007, meeting as follows:
Plaintiffs did not provide certified transcripts of all of the recorded conversations, including the one from May 14, 2007, until January 7, 2010.
The following is the transcription of the recorded conversation between Heck and Lawson during one of the occasions plaintiffs and Penn were out of the room:
The SJTA forwarded the CD to its attorney, Russell Lichtenstein, who on October 30, 2008, advised that the recording of the May 14, 2007, conversation between Heck and Lawson was illegal.
By memos dated November 7, 2008, SJTA advised plaintiffs that: (1) they had been charged with willful violation of the Wiretapping Statute and conduct unbecoming a public service employee; (2) a termination hearing had been scheduled for November 17, 2008; and (3) they were immediately suspended without pay pending the outcome of the hearing. The CBA specifically provided that "[i]n the event of an alleged serious offense, an employee may be suspended without pay pending the outcome of the charges."
Plaintiffs' disciplinary hearings were conducted November 25, 2008, before Thomas Rafter. Neither plaintiff appeared at the hearings or presented any witnesses or certifications to dispute the charges against them. No argument was made on their behalf that Rafter was biased.
Rather, plaintiffs' counsel merely argued that the charges against plaintiffs had not been brought within the requisite ten-day period.
In a December 9, 2008 written memorandum of decision, Rafter upheld the termination of Stark's employment with SJTA, and reduced Ballistreri's punishment to a four-week suspension. Rafter believed that Ballistreri's lesser involvement in the illegal recording and its use warranted the lesser discipline.
At a February 4, 2010 deposition, Ballistreri insisted that she and Stark had not intentionally recorded the private conversation between Heck and Lawson. Thereafter, at a second deposition on September 10, 2010, Ballistreri said she knew Stark was recording the May 14, 2007 proceedings, and also that she helped draft the summary for their attorney, which he had denied came from his office.
At her September 10, 2010, deposition, Stark asserted that the private conversation between Heck and Lawson was unintentionally recorded when she left her handbag in the conference room, with the active recording device inside, during a time that she and Ballistreri stepped outside to "caucus" with the union president. She admitted that she initially assumed the recording was illegal but nonetheless shared it with her husband, an employee of SJTA, Ballistreri, and later with her attorney. Stark also eventually confirmed that either she or Ballistreri had prepared the summary and furnished it to her attorney.
Both plaintiffs signed certifications filed on December 8, 2010, claiming that, at the May 14, 2007 meeting they: (1) only intended to record conversations to which they were a party; (2) never intended to record private conversations solely between Heck and Lawson; (3) had not realized that they might leave the room while the meeting was in progress; (4) completely forgot that their recording device remained behind and was running when they stepped outside to speak to Penn; and (5) did not realize that they had recorded a private conversation between Heck and Lawson until after the conclusion of the meeting.
On appeal, plaintiffs allege the following points of error:
In Point I, plaintiffs reassert that all three judges erred in finding the May 14, 2007 recording, which Stark made and shared with her husband and Ballistreri, who are both employees of SJTA, was illegal. Stark herself assumed that the recording was illegal. She also acknowledged preparing the summary of the tape, which differed from the certified transcript. Ballistreri confirmed that she knew that Stark was recording the May 14, 2007 meeting, and that she helped her draft the summary.
That both Stark and Ballistreri proffer to have unintentionally recorded the conversation we consider of little moment to the exclusion of the recording. We reach that conclusion not only under the Wiretap Act, but also the principles outlined in
It is necessary to review the trial judges' decisions on exclusion in some detail. On defendants' initial application to bar the evidence, plaintiffs did not defend its use on the basis that the recording was innocently made. Thus Judge Perskie's January 9, 2009 decision, based on the assumption the recording was deliberate, stated:
Judge Perskie signed the first order excluding the evidence on January 13, 2009.
Further muddying the procedural waters, plaintiffs filed a motion in January 2009 to amend their complaint to allege that the November 2008 discipline constituted unlawful retaliation under LAD. On February 6, 2009, Judge Perskie denied the application relying in part on the illegal recording, explaining that:
On the date the trial was to commence, September 8, 2009, plaintiffs sought to vacate the January 13, 2009, and February 6, 2009 orders. The application was denied as untimely and without merit. Plaintiffs' attorney then made certain offensive remarks regarding Judge Perskie's objectivity, who, as a result, recused himself. The matter was addressed the following day by his replacement, Judge Nugent.
Judge Nugent first observed it was "inexcusable" of plaintiffs' counsel to wait until immediately before trial to file the motion, opining that it could have been denied on that basis alone. He nonetheless considered it on the merits, ultimately agreeing with Judge Perskie that the recording should be barred and that plaintiffs could not amend their complaint to allege LAD retaliation. Judge Nugent found that plaintiffs intended to surreptitiously tape the meeting, and that Heck and Lawson had a reasonable expectation of privacy when plaintiffs and the union representative left the room to caucus. Judge Nugent, who had been presented with the first certifications that the recording was accidental, added:
Because of counsel's conduct towards Judge Nugent, he also recused himself and the matter was transferred to Judge Higbee.
Judge Higbee then decided plaintiffs' renewed motion, possibly the fourth, seeking to vacate the orders barring admission of the tape. She found no basis for reconsideration of either Judge Perskie or Judge Nugent's orders, concluding that the May 14, 2007 recording was illegal and inadmissible.
Judge Higbee, after listening to the recording, commented that nothing "suggest[ed] in the tape that Heck and Lawson were doing anything in retaliation against" plaintiffs. In other words, there was no "huge smoking gun"; rather, there was simply a small portion of the tape containing language that might or might not help plaintiffs in their suit, and there was other language that might help SJTA. Finally, the judge said:
Given the "untenable" outcome for employers to have employees "forgetting" that their recording devices were on, thereby accidentally recording private conversations, Judge Higbee also determined the recording was illegal and inadmissible.
Pursuant to
Any "aggrieved person" in any trial may move to suppress the contents of any intercepted wire, electronic or oral communication on the grounds that the communication was unlawfully intercepted.
Before a violation of the Wiretap Act is found, it must be established that the individual whose communications were intercepted had a reasonable expectation of privacy.
As to Judge Higbee's decision, plaintiffs now contend she erred in finding the recording was illegal, because she did so in the absence of due process. We review a trial judge's decision as to a matter of law de novo.
Judge Higbee considered plaintiffs' admission that they intended to record the meeting to satisfy the
Practically speaking, to hold otherwise would indeed undermine the Wiretap Act, encouraging disgruntled employees and others to have convenient moments of "forgetfulness." Additionally, plaintiffs intentionally disclosed the contents of their recording, not just to Stark's husband, also an employee of the SJTA, but to others, including their attorney. They did this while "knowing . . . that the `information was obtained through the interception of . . . oral communication.'"
Which brings us to plaintiffs' contention that, pursuant to
In
For the sake of completeness, however, we review the several factors the
In fact, Judge Higbee, in considering
Judge Higbee's assessment was entirely warranted. We add only the following brief comments. Plaintiffs' conduct was illegal; that they claimed it was "accidental" simply does not lessen the wrongfulness of recording a private conversation. Under
Plaintiffs also contend that Judge Higbee erred in dismissing their claim of retaliation, based on the November 2008 discipline. Although plaintiffs amended their complaint to allege such retaliation, nowhere do they identify the protected activity for which the discipline would qualify as retaliation under CEPA. If asked directly, presumably they would point to their complaints about Giampaolo as the protected activity — but an individual conflict between managers and those they supervise does not fall under the CEPA umbrella.
As Judge Higbee noted:
The well-established standard for appellate review of summary judgment requires affirmance in the absence of a genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law.
Under CEPA, an employer may not take retaliatory action against an employee because that employee has "disclose[d] . . . to a supervisor" or "object[ed] to" "any activity, policy or practice" of the employer which the employee "reasonably believes" is in violation of a law.
CEPA defines actionable retaliation as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment."
In "[e]xamining whether a retaliatory motive existed, jurors may infer a causal connection based on the surrounding circumstances."
Given well-established and clear precedent, plaintiffs have not demonstrated any violation of LAD or CEPA which would establish the animus behind the disciplinary proceedings against them as wrongful. Indeed the November 2008 discipline followed, not the filing of plaintiffs' complaint nor any of the earlier in-house activities they initiated against Giampaolo, but SJTA learning that the illegal taping had occurred.
Plaintiffs also argue that the November 2008 disciplinary hearing was fatally flawed because: (1) it was tainted by bias on the part of Rafter; (2) sworn testimony was not taken from the various witnesses; and (3) it was premised upon charges that were not timely brought against plaintiffs. However, plaintiffs made no allegations at the hearing regarding any bias on the part of Rafter and filed no grievance or internal appeal on this basis. Additionally, plaintiffs have identified no rule or precedent contradicting Aufschneider's position, based upon her familiarity with SJTA's practices, that witnesses were not required to testify under oath at those types of proceedings. Plaintiffs also failed to file a grievance or internal appeal on this basis.
Finally, the testimony of both Aufschneider and Lichtenstein confirmed that the November 2008 charges were brought within ten days of SJTA learning that plaintiffs had violated the Wiretapping Act. Lawson and Heck's testimony did not prove otherwise, and, once again, plaintiffs did not file an objection on this basis. Substantiated disciplinary charges are not retaliatory. By making the surreptitious recordings, plaintiffs engaged in conduct both illegal and in violation of the company's internal policies. Therefore, we find these points to also lack merit.
We see no error in Judge Higbee's conclusion that Giampaolo's alleged mistreatment of plaintiffs did not equate to discrimination or disparate treatment in violation of LAD. At-will employees in New Jersey can be treated poorly by their supervisors without any cause of action necessarily resulting from the conduct.
Judge Higbee also found there to be no evidence that SJTA retaliated against plaintiffs for making a claim of sexual discrimination under LAD. Again, we agree. As she said:
Under CEPA, an employer may not retaliate against an employee because the employee has disclosed "to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law."
A CEPA plaintiff "must show that his belief that illegal conduct was occurring had an objectively reasonable basis in fact — in other words that, given the circumstantial evidence, a reasonable lay person would conclude that illegal activity was going on."
Retaliation under CEPA need not be a single discrete action; rather, it can include "many separate[,] but relatively minor[,] instances of behavior directed against an employee that may not be actionable individually[,] but that combine to make up a pattern of retaliatory conduct."
A transfer may be found to be a de facto demotion.
However, adverse employment actions do not qualify as retaliation under CEPA "merely because they result in a bruised ego or injured pride on the part of the employee."
The requirement that an employee who brings a CEPA action must show a causal connection between his or her protected activity and the alleged adverse employment action "can be satisfied by inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action."
Plaintiffs now argue that in addition to engaging in protected conduct when they made the complaints to McClinton, and when they filed suit, that they engaged in protected conduct by objecting to unspecified instances of "Giamp[ao]lo's dishonest behavior" and were retaliated against as a result. We reiterate that facts in a brief require record references. These particular claims of dishonest behavior plaintiffs allegedly made regarding Giampaolo's conduct are nowhere to be found in the record. Even if plaintiffs are taking the position that the "dishonest" statements were the criticisms Giampaolo levied against them regarding their failures to abide by standard work hours in accord with the CBA, or their job performance, that in no way constitutes the type of dishonest behavior that falls within the purview of CEPA. We are also mindful that plaintiffs did not even initially defend themselves as to the merits of the charges at the first disciplinary hearing initiated against them. In sum, plaintiffs did not engage in protected conduct for purposes of CEPA.
Plaintiffs also contend that Judge Higbee's decision should be vacated on the basis that she too was biased against plaintiffs' counsel. It is true that in discussing the procedural history of the case, she said:
The judge also made the following comments about plaintiffs' decision to tape various conversations:
In discussing the November 25, 2008 disciplinary hearing, Judge Higbee stated as follows:
Plaintiffs now insist that these "irrelevant," "gratuitous," and "insulting remarks" indicate that the judge's evaluation of plaintiffs' claims was "improperly colored by a clear dislike for [p]laintiffs' counsel."
All of the statements made by the judge were either accurate restatements of known facts or fair comment on the record presented to her. Moreover, it must be noted that Judge Higbee upheld Judge Nugent's grant of plaintiffs' counsel's untimely request to proceed under CEPA rather than LAD, and also permitted plaintiffs to thereafter amend their complaint to add new claims of retaliation.
That Judge Higbee made these comments in no way negates the findings, with which we agree, of all three trial judges: plaintiffs simply had no facts supporting a claim of violation of LAD or CEPA. Despite years of litigation, many depositions, interrogatories, and certifications, in the final analysis, they had nothing to support their claims.
Any points we have not specifically addressed, we choose not to address because we consider them so lacking in merit as to not warrant discussion in a written opinion.
Affirmed.
