Motion to Dismiss in Seeliger Kevin Vs Interstate Waste Ser Vices| Trellis.Law

On June 13, 2023 a Motion,Ex Parte was filed involving a dispute between Kevin Seeliger, and 0 John & Jane Does 1-1, Abc Corporation 1-10, Anthony Gambino, Interstate Waste Services, Robert Witynski, for Whistleblower / Conscientious Employee Protection Act (Cepa) in the District Court of Monmouth County.

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CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
Keya C. Denner, Esq. [Attorney No. 037492004]
Matthew T. Clark, Esq. [Attorney No. 906662012]
15 Independence Boulevard, Suite 420
Warren, New Jersey 07059
Tel. (908) 758-2785
Email: kdenner@constangy.com
mclark@constangy.com
Attorneys for Defendants Interstate Waste
Services, Inc. Anthony Gambino, and Robert Witnyski

SUPERIOR COURT OF NEW JERSEY
KEVIN SEELIGER, MONMOUTH COUNTY: LAW DIVISION

Plaintiff, DOCKET NO.: MON-L-001827-23

vs. Civil Action

INTERSTATE WASTE SERVICES, NOTICE OF MOTION TO DISMISS
ROBERT WITNYSKI, ANTHONY
GAMBINO, ABC CORPORATIONS 1-10
(fictitious names), and JOHN & JANE
DOES 1-10 (fictitious names),

Defendants.

TO: Thomas DeNoia, Esq.
Tomaso R. DeNoia, Esq.
DeNoia & Tambasco, L.L.C.
501 Main Street
Toms River, New Jersey 08753
via eCourts
Counsel to Plaintiff Kevin Seeliger

COUNSEL:

PLEASE TAKE NOTICE that on Friday, September 8, 2023, at 10:00 a.m., or as soon

thereafter as counsel may be heard, Constangy, Brooks, Smith & Prophete, LLP, undersigned

counsel for defendants Interstate Waste Services, Inc., Anthony Gambino, and Robert Witnyski

(collectively, “Defendants”) will before Hon. Richard W. English, J.S.C., of the Superior Court of

New Jersey, Law Division, Monmouth County, Monmouth County Courthouse, 71 Monument
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Street, Freehold, New Jersey 07728, pursuant to R. 4:6-2(e) for an Order dismissing plaintiff Kevin

Seeliger’s Complaint.

PLEASE TAKE FURTHER NOTICE that in support of this motion, Defendants shall

rely upon the accompanying Memorandum of Law and Certification of Keya C. Denner, Esq.,

inclusive of exhibits annexed thereto.

PLEASE TAKE FURTHER NOTE that Defendants respectfully request oral argument

if this motion is opposed.

A proposed form of Order is respectfully submitted herewith.

CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
Attorneys for Defendants Interstate Waste
Services, Inc. Anthony Gambino, and Robert Witnyski

By: _____/s/ Keya C. Denner_____
KEYA C. DENNER

Dated: August 17, 2023

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SUPERIOR COURT OF NEW JERSEY
KEVIN SEELIGER, MONMOUTH COUNTY: LAW DIVISION

Plaintiff, DOCKET NO.: MON-L-001827-23

vs. Civil Action

INTERSTATE WASTE SERVICES, ORDER OF DISMISSAL
ROBERT WITNYSKI, ANTHONY
GAMBINO, ABC CORPORATIONS 1-10
(fictitious names), and JOHN & JANE
DOES 1-10 (fictitious names),

Defendants.

THIS MATTER, having been brought before the Court by Constangy, Brooks, Smith &

Prophete, LLP, on behalf of defendants Interstate Waste Services, Inc., Anthony Gambino, and

Robert Witnyski (collectively, “Defendants”), on notice to counsel to plaintiff Kevin Seeliger

(“Plaintiff”), by way of Motion to Dismiss pursuant to R. 4:6-2(e), and the Court having reviewed

the submissions of the parties, and for good cause shown:

IT IS on this _____ day of _______________________, 2023,

ORDERED that Defendants motion to dismiss is GRANTED and that Plaintiff’s

Complaint be and is herby DISMISSED with prejudice and without costs to either party.

IT IS FURTHER ORDERED that a copy of this Order shall be served on all parties via

eCourts within seven (7) days of the date hereof.

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__________________________________________
THE HONORABLE ROBERT W. ENGLISH, J.S.C.

_________ OPPOSED
_________ UNOPPOSED

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SUPERIOR COURT OF NEW JERSEY
KEVIN SEELIGER, MONMOUTH COUNTY: LAW DIVISION

Plaintiff, DOCKET NO.: MON-L-001827-23

vs. Civil Action

INTERSTATE WASTE SERVICES, CERTIFICATION OF COUNSEL IN
ROBERT WITNYSKI, ANTHONY SUPPORT OF R. 4:6-2(E) MOTION TO
GAMBINO, ABC CORPORATIONS 1-10 DISMISS
(fictitious names), and JOHN & JANE
DOES 1-10 (fictitious names),

Defendants.

I, KEYA C. DENNER, ESQ., being of fully age do hereby certify as follows:

1. I am a partner in the office of Constangy, Brooks, Smith & Prophete, LLP, counsel

to defendants Interstate Waste Services, Inc. (“IWS”), Anthony Gambino, and Robert Witnyski

(collectively, “Defendants”) in the above-entitled action. In this capacity and through review of

my office’s files for this matter, I am fully familiar with the facts herein.

2. On June 13, 2023, plaintiff Kevin Seeliger filed a Complaint and Jury Demand in

the Superior Court of New Jersey, Law Division, Monmouth County (“Complaint”). A true and

correct copy of the Complaint is annexed hereto as Exhibit A.

3. On August 2, 2023, my office served a Safe Harbor Notice pursuant to R. 1:4-8 and

N.J.S.A. 2A:15-59.1 (“Safe Harbor Notice”) on Mr. Seeliger’s counsel of record.
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4. On August 4, 2023, Mr. Seeliger’s counsel of record executed a Proof of Delivery

for the United States Postal Service, demonstrating that Mr. Seeliger is in receipt and on notice of

the Safe Harbor Notice.

5. Defendants’ rights to seek all relief available pursuant to R. 1:4-8 and N.J.S.A.

2A:15-59.1 is expressly preserved, reserved, and not waived.

6. Annexed hereto as Exhibit B is an appendix of all unpublished authorities relied

upon in the accompany memorandum of law.

I certify that the foregoing statements by me are true to the best of my knowledge and

belief. I understand that if any of the foregoing statements by me are willfully and knowingly

false, I am subject to punishment.

Respectfully submitted,

CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
Attorneys for Defendants Interstate Waste
Services, Inc., Anthony Gambino, and Robert Witnyski

By: _____/s/ Keya C. Denner______
Keya C. Denner, Esq.
15 Independence Boulevard, Suite 420
Warren, New Jersey 07059
Tel. (908) 758-2785
Email: kdenner@constangy.com

Dated: August 17, 2023

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Thomas DeNoia, Esq. (013221976)
Tomaso R. DeNoia, Esq. (207712017)
DeNoia & Tambasco, L.L.C.
501 Main Street
Toms River, New Jersey 08753
(732) 341-1030
File No. WT-14826
Attorney for Plaintiff, Kevin Seeliger

SUPERIOR COURT OF NEW JERSEY
KEVIN SEELIGER, MONMOUTH COUNTY – LAW DIVISION

Plaintiff DOCKET NO. OCN-L-

- vs. – CIVIL ACTION

INTERSTATE WASTE SERVICES, COMPLAINT, JURY DEMAND,
ROBERT WITYNSKI, ANTHONY DESIGNATION OF TRIAL COUNSEL
GAMBINO, ABC CORPORATION 1-10 AND CERTIFICATION
(fictitious names) and JOHN & JANE DOES
1-10 (fictitious names)

Defendants.

Plaintiff, Kevin Seeliger by way of complaint against Defendants, Interstate Waste
Services, Robert Witynski, Anthony Gambino, ABC Corporation 1-10 (fictitious names) and
JOHN & JANE DOES 1-10 (fictitious names), says:

INTRODUCTORY STATEMENT

Plaintiff, Kevin Seeliger, brings this Complaint against his former employer, Defendant,

Interstate Waste Services, based on Defendants’ termination of Plaintiff’s employment. More

specifically, in this Complaint, Plaintiff alleges that Defendants retaliated against Plaintiff in

violation of the New Jersey Conscientious Employee Protection Act (“CEPA”).
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PARTIES

1. Plaintiff, Kevin Seeliger (hereafter “Mr. Seeliger”) is a resident of the State of

New Jersey, with a mailing address of 28 Mt. Run, Tinton Falls, Monmouth County, New Jersey

and was an employee of Defendant, Interstate Waste Solutions.

2. Defendant, Interstate Waste Solutions (hereafter “Interstate”), is an employer in

the State of New Jersey with its offices located at 3540 Doremus Avenue, Newark, New Jersey.

3. Defendants, Robert Witynski and Anthony Gambino were Plaintiff’s supervisors

while was employed with Defendant, Interstate.

4. ABC Corporation 1-10 (fictitious names) and John and Jane Does 1-10 (fictitious

names) are entities and people to be added as Defendants.

STATEMENT OF FACTS

1. Plaintiff began his employment with Interstate on or about October 26, 2022.

2. Plaintiff began reporting dangerous conditions of the Interstate company vehicles.

3. Defendants asked Plaintiff to clear the unsafe vehicles so they could continue

operating on roadways and Plaintiff refused.

4. Defendants thereafter began retaliating against Mr. Seeliger due to his complaints and

ultimately terminated Mr. Seeliger from his employment with Interestate in violation of CEPA.

COUNT ONE

1. Plaintiff repeats the allegations previously set forth as though set forth herein at

length.

2. In or about November 2022, Plaintiff was terminated in retaliation for his

protected acts under CEPA. Specifically, Plaintiff reported unsafe conditions of vehicles and

refused to place them back in service due to their condition.
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3. Such termination was in violation of the New Jersey Conscientious Employee

Protection Act in N.J.S.A, 34:19-1 et seq. (“CEPA”).

4. As a result, Plaintiff suffered monetary damages and emotional distress and seeks

damages from all Defendants.

WHEREFORE, Plaintiff demands judgment against the Defendants under for the following:

A. An injunction to restrain any violation of this act which is continuing at

the time that the court issues its order;

B. The reinstatement of Plaintiff to the same position held before the

retaliatory action or to an equivalent position;

C. The reinstatement of full fringe benefits and seniority rights;

D. The compensation for all lost wages, benefits and other remuneration;

E. Punitive damages; and

F. Attorney’s fees and costs.

SECOND COUNT

1. Plaintiff repeats the allegations previously set forth as though set forth herein at

length.

2. Such termination was in violation of Public Policy of New Jersey pursuant to

Pierce v Ortho.

3. As a result, Plaintiff suffered monetary damages and emotional distress and seeks

damages from all Defendants.

WHEREFORE, Plaintiff demands judgment against the Defendants under for the following:

A. An injunction to restrain any violation of this act which is continuing at

the time that the court issues its order;
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B. The reinstatement of Plaintiff to the same position held before the

retaliatory action or to an equivalent position;

C. The reinstatement of full fringe benefits and seniority rights;

D. The compensation for all lost wages, benefits and other remuneration;

E. Punitive damages; and

F. Attorney’s fees and costs.

THIRD COUNT

1. Plaintiff incorporates by reference each and every allegation contained hereinbefore.

2. Defendants as a direct result of their actions and/or inactions, intentionally interfered

with Plaintiff’s employment relationship with Defendant, Interstate.

3. As a result of the actions of Defendants, Plaintiff has sustained and continues to

sustain substantial losses in earnings, benefits and has suffered and continues to suffer humiliation

and mental pain and anguish.

WHEREFORE, Plaintiff demands judgment against Defendants awarding Plaintiff

compensatory and punitive damages, interest, attorney fees, costs of suit, and all such other relief as

the Court may deem equitable and just.

DAMAGES

By reason of the actions of Defendants complained of in each of the actions above, Plaintiff

suffered damages.

WHEREFORE, Plaintiff demands judgment against Defendants:

1. Awarding Plaintiff damages in the sum equivalent to the losses sustained by him by

virtue of Defendants' action;
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2. Directing Defendants to make Plaintiff whole through the award of compensatory

damages;

3. Directing Defendants to pay Plaintiff punitive damages as a result of its willful,

knowing, and intentional violation of Plaintiff's rights;

4. Ordering Defendants to pay Plaintiff's attorney fees and costs of suit; and

5. Such other relief as the Court deems equitable and just.

DESIGNATION OF TRIAL COUNSEL

Pursuant to Rule 4:25-4, Tomaso DeNoia is hereby designated as trial counsel.

JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues.

CERTIFICATION

Pursuant to R. 4:6-1, the undersigned hereby certifies that the within Complaint has been

filed and served within the time prescribed by the rules of the Court.

Pursuant to the requirements of Rule 4:5-1, (NOTICE OF OTHER ACTIONS), I the

undersigned, do hereby certify, to the best of my knowledge, information and belief, except as

hereinafter indicated, the subject matter of the controversy referred to in the within pleading is not

the subject of any other Cause of Action, pending in any Court, or of a pending Arbitration

Proceeding, nor is any Cause of Action or Arbitration Proceeding contemplated:

1. OTHER ACTIONS PENDING?.....................YES____ NO __x_
A. If YES, - Parties to other Pending actions. (see attached)
B. In my opinion, the following parties should be joined in the within pend-
ing Cause of Action (see attachment)

2. OTHER ACTIONS CONTEMPLATED?................YES____ NO__x_
A. If YES - Parties contemplated to be
joined in other Causes of Action.
(See Attachment)
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3. ARBITRATION PROCEEDING PENDING?............YES____ NO__x_
A. If YES - Parties to Arbitration
Proceedings. (See Attachment)
B. In my opinion, the following parties should be joined in the pending
Arbitration Proceedings. (See Attachment)

4. OTHER ARBITRATION PROCEEDING CONTEMPLATED? YES____ NO__x_
A. If YES - Parties contemplated to be joined to Arbitration Proceedings. (See
Attachment)

In the event that during the pendency of the within Cause of Action, I shall become aware of
any change as to any facts stated herein, I shall file an amended certification and serve a copy on all
other parties (or their attorneys) who have appeared in the said Cause of Action.

DeNOIA, TAMBASCO & GERMANN, L.L.C.
Attorneys for Plaintiff, Kevin Seeliger

Dated: June 13, 2023 By: _/s/ Tomaso DeNoia____________________
TOMASO DENOIA
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Civil Case Information Statement
Case Details: MONMOUTH | Civil Part Docket# L-001827-23

Case Caption: SEELIGER KEVIN VS INTERSTATE Case Type: WHISTLEBLOWER / CONSCIENTIOUS EMPLOYEE
WASTE SER VICES PROTECTION ACT (CEPA)
Case Initiation Date: 06/13/2023 Document Type: Complaint with Jury Demand
Attorney Name: TOMASO RAPHAEL DENOIA Jury Demand: YES - 12 JURORS
Firm Name: DENOIA & TAMBASCO, LLC Is this a professional malpractice case? NO
Address: 501 MAIN STREET Related cases pending: NO
TOMS RIVER NJ 087530000 If yes, list docket numbers:
Phone: 7323411030 Do you anticipate adding any parties (arising out of same
Name of Party: PLAINTIFF : Seeliger, Kevin transaction or occurrence)? NO
Name of Defendant’s Primary Insurance Company Does this case involve claims related to COVID-19? NO
(if known): Unknown
Are sexual abuse claims alleged by: Kevin Seeliger? NO

THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE
CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION

Do parties have a current, past, or recurrent relationship? YES
If yes, is that relationship: Employer/Employee
Does the statute governing this case provide for payment of fees by the losing party? YES
Use this space to alert the court to any special case characteristics that may warrant individual
management or accelerated disposition:

Do you or your client need any disability accommodations? NO
If yes, please identify the requested accommodation:

Will an interpreter be needed? NO
If yes, for what language:

Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO

I certify that confidential personal identifiers have been redacted from documents now submitted to the
court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)

06/13/2023 /s/ TOMASO RAPHAEL DENOIA
Dated Signed
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Bordone v. Passaic Public Library Trust, Not Reported in Atl. Rptr. (2018)
2018 IER Cases 176,549

N.J.S.A. 34:19–1 to –14, the New Jersey Civil Rights Act
2018 WL 2271354 (NJCRA), N.J.S.A. 10:6–1 to –2, and common law causes of
action for wrongful discharge and defamation, 1 arising from
UNPUBLISHED OPINION. CHECK COURT RULES
the March 12, 2013 termination of plaintiff's employment
BEFORE CITING.
with the Library. We affirm.
Superior Court of New Jersey, Appellate Division.

James D. BORDONE, Plaintiff–Appellant,
v. I
PASSAIC PUBLIC LIBRARY TRUST (improperly
pleaded as the Passaic Public Library), City of Passaic
A
and Mario Gonzalez, Defendants–Respondents.
Plaintiff was employed as a senior librarian for the Library
DOCKET NO. A–2299–15T4 from 2003 until March 12, 2013, when his employment was
| terminated. From March 2009, Gonzalez was employed as the
Argued February 28, 2018 Library's director. Mabel Ajala, who is not a defendant here,
| was plaintiff's direct supervisor.
Decided May 18, 2018
On August 27, 2012, Gonzalez and Ajala met with plaintiff
On appeal from Superior Court of New Jersey, Law Division,
to discuss a number of incidents involving plaintiff's conduct
Passaic County, Docket No. L–4063–13.
at work between April and August 2012. Ajala presented him
Attorneys and Law Firms with a document entitled “Behavioral Change Warning” with
the subtitle “Re: Personal Conduct: Creating a Disturbance
Andrew M. Moskowitz argued the cause for appellant in the Workplace and Use of Obscene Language.” The
(Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, PC, memo related incidents where plaintiff became angry, raised
attorneys; Andrew M. Moskowitz, on the brief). his voice, and cursed in areas of the library where the
public could hear and that also scared Ajala. The memo
Kevin M. Eppinger argued the cause for respondents Passaic
warned plaintiff about this behavior, described as “hostile,
Public Library Trust and Mario Gonzalez (Gold, Albanese,
unnecessary outbursts” that were “inappropriate.” He was
Barletti & Locascio, LLC, attorneys; Kevin M. Eppinger, on
advised to “correct this” and to “sustain a composed
the brief).
professional behavior” or further discipline could be taken,
John R. Gonzo argued the cause for respondent City including suspension without pay. Plaintiff refused to sign the
of Passaic (L'Abbate, Balkan, Colavita & Contini, LLP, memo, calling it “bogus” and “flipped it back at [Gonzalez.]”
attorneys; John R. Gonzo, of counsel and on the brief; Jason Gonzalez alleged that plaintiff raised his voice, pointed his
Mastrangelo, on the brief). fingers at him in the gesture of a gun, threatening to “get
us,” screamed, swore and “appeared to become ‘unglued.’ ”
Before Judges Fuentes, Manahan, and Suter. Plaintiff denies this conduct.

Opinion The next day, Gonzalez called plaintiff, telling him that he was
suspended from his employment with pay, and the suspension
PER CURIAM
would continue until he was psychologically evaluated and
*1 Plaintiff James D. Bordone appeals from the October cleared to return to work. Plaintiff did not attend the scheduled
23, 2015 order that denied reconsideration of a summary psychological evaluation.
judgment order entered on September 10, 2015. That
summary judgment order dismissed his complaint filed A Preliminary Notice of Disciplinary Action was issued,
against defendants Passaic Public Library Trust (the Library), charging plaintiff with threatening and bullying behavior
City of Passaic (the City) and Mario Gonzalez (Gonzalez) toward library supervisors, “Verbal Abuse,” “Conduct
(collectively, defendants). The complaint alleged violations Unbecoming [of] a Public Employee” and “Other Sufficient
of the Conscientious Employee Protection Act (CEPA), Causes.” He was suspended without pay. Subsequently,

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plaintiff submitted to a psychological evaluation but then 50%.” The complaint averred that the Library failed to
would not attend a psychiatric evaluation. An Amended appropriately utilize certain grant moneys. The complaint
Preliminary Notice of Disciplinary Action was issued also averred that these actions were in violation of the law
in December 2012, seeking plaintiff's termination from and “incompatible with a clear mandate of public policy
employment. A hearing was conducted in January 2013, concerning the public welfare,” citing the Library's Mission
before a hearing officer. In March 2013, the hearing officer's Statement.
report recommended terminating plaintiff's employment.
Defendants denied the various allegations. The parties
*2 At the hearing, plaintiff testified that he and Gonzalez conducted discovery for 640 days, following which the court
initially had an excellent relationship but the relationship granted defendants' motions for summary judgment. We
changed based on what the hearing officer characterized as recite the facts from the summary judgment record, viewing
them in the light most favorable to plaintiff, the non-moving
party. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
disagreement over historical materials, (2016); R. 4:46–2(c).
i.e. Herald News articles that the
witness wanted digitized, but of which
Mr. Gonzalez wanted disposal. Mr.
Gonzalez issued a memo regarding C
non-contact with [the local historian]
Gonzalez became the Library's Executive Director in March
is not permitted in non-public areas,
2009. He issued a memorandum to his staff that September,
which the witnesses felt was a
at the request of the Library's Board of Trustees, about City
disservice. Gonzalez maintained this
Historian Mark Auerbach. The memo advised there could
position at a subsequent meeting
be disciplinary action “up to and including termination” for
in March 2012 between the two
anyone who allowed Auerbach access to non-public areas or
regarding the moving of the materials
non-public holdings of the Library. Gonzalez suggested to his
to the Reid Branch location of the
staff that they “limit” conversations with Auerbach. Although
library.
plaintiff could speak with Auerbach during non-work hours,
Gonzalez told plaintiff it “wasn't smart” for him to do so
because Auerbach “was giving him bad advice” and was
A Final Notice of Disciplinary Action terminated plaintiff's “negative about the staff.” Even though plaintiff disagreed
employment with Library effective March 12, 2013. Plaintiff with the memo, he did not speak with Auerbach except for
did not appeal the Final Notice. one time in December 2010, when he gave Auerbach a copy
of a book plaintiff had written.

The City's mayor wrote to Gonzalez in January 2012, about
B
allowing Auerbach to have access to the City's historical
Plaintiff filed a four-count complaint in the Law Division records stored at the Library while the City was in the
in August 2013, against the Library, the City and Gonzalez. process of reorganizing its historical documents and holdings.
He alleged his firing was in violation of CEPA, the NJCRA, Auerbach already had access to all public areas and Gonzalez
and common law and was defamatory because it was in testified in his deposition that the staff would continue to
retaliation for complaints he had made about Gonzalez. assist him in retrieving documents from non-public areas.
The complaint stated that plaintiff objected to Gonzalez's
“directive to discard historical documents, records, and *3 Plaintiff resumed his communications 2 with Auerbach
books; the discontinuance of the computer program offered to in January 2012, because he felt Gonzalez “was destroying
the public; the relocation of the historical collection from the [C]ity property and ... didn't think that was the right thing to
Forstmann to the Reid Library; the directives to the Library's do.” Plaintiff emailed Auerbach on February 28, 2012, telling
employees regarding City Historian Mr. [Mark] Auerbach; him that Gonzalez was discarding “a lot of the material once
and the slashing of the Library's reference department by considered historically significant.” He referenced a “few”

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2018 IER Cases 176,549

materials in the “Scott” collection that were discarded but same.” Plaintiff and another staff member met with Porto on
indicated that they were “in pretty bad shape” from mold March 15, 2012, about plaintiff's email. Porto placed a call to
and mildew and were “basically unusable.” The rest of the Gonzalez's office during the meeting, leaving a message that
“damaged” books would be discarded in the next few weeks. Gonzalez was to “hold off ... discarding anything.”
The historian's materials that were stored there and other
materials were going to be sent to the Reid Library, which *4 Gonzalez testified in his deposition that not all the books,
plaintiff believed to be a “disservice to the people of Passaic,” records and documents were owned by the Library. The
because an appointment would have to be made to access the only items he planned to discard belonged to the Library,
materials. not to the City. Some of the Library's books, records and
documents were damaged in a flood of sewage from the
Plaintiff asked to meet with Gonzalez in February or March Library's bathrooms.
2012, to discuss his concerns that included Gonzalez's
decision to reorganize portions of the library, including old Auerbach and Harriot conducted an inspection of the
3
newspapers, microfilm and the 800 series of books. He Library's branches to inventory City owned documents, and
disagreed with Gonzalez's decision to move the newspapers later, Auerbach went through bags of trash. Despite the
to the basement, although he acknowledged in his subsequent inspection and the garbage search, there was no inventory
deposition that the newspapers were preserved on microfilm produced of any City owned documents that were discarded.
because they “can only keep them so far back” and there Copies of old newspapers, including the Herald News, were
were “a mess of papers in the basement. It was a nightmare.” available on microfilm.
Plaintiff disagreed with the decision to move the local history
collection to the Reid Library even though it was to keep Later in the summer, plaintiff emailed to Gonzalez that
the materials in a location that was dry. While stored at the the Library should return certain grant moneys that it had
Library in the basement, books would get “ruined” when the received to set up a website of historical photographs because
bathroom would overflow. Plaintiff also spoke with Gonzalez the project was not complete. The project since has been
about grant moneys; Gonzalez told him he would follow up. completed.

When “[n]othing changed,” plaintiff wrote to Walter Pronto,
President of the Library Board of Trustees, in an email D
dated March 11, 2012, where he raised seven issues
about Gonzalez's “mismanagement” of the Library and the Defendants' motions for summary judgment to dismiss
undermining of their “professional judgment as librarians.” plaintiff's CEPA, NJCRA, and common law retaliation claims
These complaints involved (1) discontinuing a computer were granted on September 10, 2015. The court found
program; (2) discarding items in the basement without plaintiff failed to demonstrate a prima facie claim under
consulting staff; (3) moving the microfilm to the basement; CEPA because “the bad acts alleged [by plaintiff were] not a
(4) taking daily newspapers off racks, which caused a violation of a law, rule, regulations, or clear mandate of public
“messy” reading area; (5) moving the historical collection policy.” Plaintiff's beliefs “were not objectively reasonable
to the Reid Library; (6) discarding over a thousand books in nature and he cannot demonstrate that a substantial nexus
for lack of circulation using a “weeding” system with which exists between the complained-of conduct and a law, rule,
he disagreed 4 and historical books and bound volumes of regulation, or public policy.” The court did not address any
the Herald News, although some of them were “moldy and other CEPA requirements.
unusable to anyone”; and the “ultimate reason” for writing,
(7) relocating several types of books to different areas of the The remaining counts of the complaint were dismissed based
library. None of the allegations referenced Auerbach, grant on CEPA's waiver provision. See N.J.S.A. 34:19–8. The
moneys or criminality. court found that the non-CEPA claims all rested on the
same facts that plaintiff's termination was in retaliation for
The next day, the City attorney, Christopher Harriot, wrote to complaining about Gonzalez.
Gonzalez advising him not to dispose of the City's historical
documents, records and/or artifacts because Gonzalez had
“no authority whatsoever to dispose of, remove or destroy

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
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2018 IER Cases 176,549

Plaintiff sought reconsideration of the summary judgment
(2) he or she performed a “whistle-blowing” activity
orders in September 2015, which was denied. 5
described in N.J.S.A. 34:19–3(c);
On appeal, plaintiff contends his CEPA claim should not
have been dismissed because he reasonably believed that (3) an adverse employment action was taken against him
Gonzalez's conduct violated a law, was fraudulent or criminal or her; and
and was not compatible with a clear mandate of public policy.
(4) a causal connection exists between the whistle-blowing
In addition to what he believed was evidence of a CEPA
activity and the adverse employment action.
violation, plaintiff argues that his complaint stated a viable
claim for common law retaliation and that CEPA's waiver
[ Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015)
provision did not apply until the case was before the jury. As
for his claim under the NJCRA, plaintiff asserted that it is (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462
substantially independent of CEPA and should not have been (2003) ).]
dismissed. Plaintiff also argues that the City remains liable
because it is a joint employer with the Library. Plaintiff's CEPA claim was brought under N.J.S.A. 34:19–
3(c)(1) to (3) which precludes an employer from taking
retaliatory action against an employee who objects to an
II “activity policy or practice” that the employee reasonably
believes (1) “is in violation of a law, or a rule or regulation
We review a court's grant of summary judgment de novo, promulgated pursuant to law,” (2) “is fraudulent or criminal,”
applying the same standard as the trial court. Conley v. or (3) “is incompatible with a clear mandate of public
Guerrero, 228 N.J. 339, 346 (2017). Summary judgment policy concerning the public health, safety or welfare or
must be granted if “the pleadings, depositions, answers to
protection of the environment.” N.J.S.A. 34:19–3(c)(1) to
interrogatories and admissions on file, together with the
(3). Plaintiff alleges he reasonably believed that defendants'
affidavits, if any, show that there is no genuine issue as to any
conduct satisfied each of these subsections.
material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law.” Templo Fuente
“[W]hen a plaintiff brings an action pursuant to N.J.S.A.
De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
34:19–3(c), the trial court must identify a statute, regulation,
N.J. 189, 199 (2016) (quoting R. 4:46–2(c) ).
rule, or public policy that closely relates to the complained-of
conduct.” Dzwonar, 177 N.J. at 463. Where a violation of
public policy is alleged, it must be a clear mandate of public
A
policy. “ ‘[P]ublic policy has been defined as that principle
*5 CEPA is designed to “prevent retaliation against of law which holds that no person can lawfully do that which
those employees who object to employer conduct that they has a tendency to be injurious to the public or against the
reasonably believe to be unlawful or indisputably dangerous public good.’ ” Hitesman v. Bridgeway, Inc., 218 N.J. 8,
to the public health, safety or welfare.” Mehlman v. Mobil 28 (2014) (quoting Mehlman, 153 N.J. at 187).
Oil Corp., 153 N.J. 163, 193–94 (1998). It is “remedial
legislation” to be construed liberally to achieve its purpose. “[T]he trial court must make a threshold determination
Estate of Roach v. TRW, Inc., 164 N.J. 598, 610 (2000). that there is a substantial nexus between the complained-of
conduct and a law or public policy identified by the court or
To establish a prima facie CEPA claim, the employee must the plaintiff.” Dzwonar, 177 N.J. at 464. “A plaintiff who
prove that
brings a claim pursuant to N.J.S.A. 34:19–3[ (c) ] need not
(1) he or she reasonably believed that his or her employer's show that his or her employer or another employee actually
conduct was violating either a law, rule, or regulation
violated the law or a clear mandate of public policy.” Id. at
promulgated pursuant to law, or a clear mandate of public
462. Rather, a plaintiff “must set forth facts that would support
policy;

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 4
MON-L-001827-23 08/17/2023 5:35:47 PM Pg 17 of 36 Trans ID: LCV20232367782
Bordone v. Passaic Public Library Trust, Not Reported in Atl. Rptr. (2018)
2018 IER Cases 176,549

an objectively reasonable belief that a violation has occurred.” specific law, rule or regulation that was violated by Gonzalez
and thus, did not satisfy the CEPA statute. In opposing
Id. at 464; see Klein v. Univ. of Med. & Dentistry of
defendants' summary judgment motions, plaintiff cited two
N.J., 377 N.J. Super. 28, 40 (App. Div. 2005).
criminal stat

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