FISCHER v. G4S SECURE SOLUTIONS USA, INC.

Filing 50

OPINION. Signed by Chief Judge Jerome B. Simandle on 6/25/2014. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRYAN E. FISCHER,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 10-6792 (JBS/AMD)

G4S SECURE SOLUTIONS USA,
INC.,
OPINION
Defendant.

Appearances:
James M. Carter, Esq.
LAW OFFICES OF HOFFMAN DIMUNZIO
4270 Route 42
Turnersville, NJ 08012
Attorney for Plaintiff
John K. Bennett, Esq.
Leslie Ann Marie Saint, Esq.
JACKSON LEWIS P.C.
220 Headquarters Plaza
East Tower, 7th floor
Morristown, NJ 07960
Attorneys for Defendant

SIMANDLE, Chief Judge:
I.

Introduction
Plaintiff Bryan Fischer brings this action alleging that he

was terminated from his job in retaliation for engaging in
protected whistleblowing activity, in violation of Conscientious
Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, et seq.

Plaintiff, formerly an armed security officer at a nuclear
power facility, alleges that he was constructively terminated
after disclosing to his supervisors unsafe conduct by his union
co-workers. In response, some co-workers made complaining
statements to Plaintiff, and Defendant placed him on leave with
pay in order to investigate his allegations of harassment. After
concluding the investigation, Defendant offered Plaintiff two
options: (1) a transfer to the nearest facility with which
Defendant had a contract (in New Hampshire, for less pay and
with a reduction in Plaintiff’s union seniority due to the
different union contract there), or (2) return to work with
assurances that changes were being made to the workplace and
that harassment by his co-workers would not be tolerated.
(Defendant rejected a third option: Plaintiff’s $800,000 demand
for severance.) Plaintiff declined the transfer and never
returned to work because he felt that Defendant had not
adequately addressed his safety concerns. Officially, Plaintiff
was fired for not reporting to work. He maintains that he was
constructively terminated.
Before the Court is a motion for summary judgment by
Defendant G4S Secure Solutions USA, Inc. [Docket Item 40.] For
the reasons explained below, because much of Plaintiff’s conduct
does not qualify for protection under CEPA, and because
Plaintiff cannot establish causation or show that Defendant’s
2

proffered reason for his termination was pretextual, the Court
will enter summary judgment in favor of Defendant.
II.

Background
Facts
1. Plaintiff’s disclosures
The facts are undisputed, except where noted. In 2007,

Defendant G4S Secure Solutions USA, Inc., hired Plaintiff Bryan
Fischer as an armed security officer and assigned him to the
PSEG Salem-Hope Creek nuclear power facility, 1 where G4S provided
security services on a contract basis. (Statement of Undisputed
Material Facts (“SMF”) ¶¶ 1, 4-6.) After a few months of
employment, Plaintiff joined a security officers’ union, the
Nuclear Power Plant Security Officers of America. (SMF ¶3.) Over
the course of his employment, Plaintiff received training
materials and attended numerous training sessions on safety,
ethics, misconduct, and harassment in the workplace. (SMF ¶¶ 1118.)
Between April 2008 and February 2010, Plaintiff was
involved in three incidents in which he provided his employer
with information about what he considered to be safety concerns
at the facility. (Defendant disputes that the information

1

The parties refer to the Salem Nuclear Power Plant and Hope
Creek Nuclear Generating Station, collectively, as “Salem-Hope
Creek.” The facilities are operated by PSEG Nuclear, LLC. (Am.
Compl. ¶ 9.)
3

disclosed had any bearing on safety. (SMF ¶ 95.)) Plaintiff
asserts that these incidents provoked threatening or harassing
responses from union co-workers, and set in motion a course of
events that led to Plaintiff’s termination.
The first incident occurred in April 2008. A manager in
PSEG’s security department asked Plaintiff if he was aware of
any unauthorized chairs on site in which security officers might
sit without permission. (SMF ¶ 19.) Plaintiff identified a chair
“on one of the elevations that was used to prop open the roof
door.” (SMF ¶ 20.) At the manager’s direction, Plaintiff and a
union co-worker removed the chair. (SMF ¶¶ 21-22.) On April 17,
2008, Officer Manny Perdue was seated behind Plaintiff at a
meeting, and kicked the back legs of Plaintiff’s chair. (SMF ¶
23.) Plaintiff complained, and a union representative
facilitated an apology from Perdue, which Plaintiff accepted.
(SMF ¶¶ 24-31.) Perdue was later fired for an unrelated reason.
(Deposition of Arthur R. Simpson, Sr. (Def. Ex. D) [Docket Item
40-12] at 78:7-12, 82:19-83:2.)
One year later, Plaintiff was patting down and searching
visitors to the facility, when he discovered one visitor had a
digital camera without a “camera pass” authorizing the visitor
to carry a camera into a protected area of the facility. (SMF ¶¶
32-36.) Plaintiff believed that Officer Glasby, who had allowed
the visitor to enter without a camera pass, had violated
4

security protocol, and Plaintiff told the security team leader
on duty. (SMF ¶¶ 37-38.) About 10 or 12 days later, Officer
Glasby confronted Plaintiff and asked: “What are you trying to
do jam me up?” (SMF ¶ 40.)
The third incident occurred on February 14, 2010, at the
beginning of Plaintiff’s shift. (SMF ¶ 42.) He smelled alcohol
on the breath of his co-worker Officer Crowell and inquired
whether Crowell had been drinking. (SMF ¶¶ 42-43.) Crowell
replied that he had some drinks the night before but felt fine.
(SMF ¶ 44.) Plaintiff believed that security officers were
required to self-report if they were intoxicated or if they had
been under the influence of alcohol within five hours of
reporting for duty, and Plaintiff instructed Crowell to report
to the team leader. (SMF ¶¶ 45-46.) When Plaintiff informed
Officer Terry Snyder, the union’s vice president, about the
situation, they both accompanied Crowell to the locker room to
take a fitness-for-duty Breathalyzer test. (SMF ¶¶ 48-50.)
Crowell failed the test and was terminated immediately. (SMF ¶¶
50-51.)
As to each of these three incidents, Plaintiff does not
allege that his employer ignored his reports or failed to take
proper action. Indeed, as to the third and most serious report
of misconduct, involving Officer Crowell’s use of alcohol,
Plaintiff admits “the employer did the right thing at the time
5

and terminated that employee.” (Pl. Supp. Letter Br. [Docket
Item 48] at 2.)
2. Reaction to Plaintiff’s conduct
Some of Plaintiff’s co-workers expressed dissatisfaction
with Plaintiff’s behavior and Crowell’s termination. Officer
Perdue showed Plaintiff text messages that read, “Fischer is
going to get his,” and “Fischer’s no good, why you talk to him?”
(SMF ¶¶ 52-54.) One officer told Plaintiff that “he needed to
stop reporting things” and that if they were in the military,
other officers “would pay him a visit at night.” (SMF ¶ 57.)
Plaintiff observed that when he entered the security officers’
break room, some union officers would leave the room. (SMF ¶
56.) Two months after Crowell’s termination, Officer Glasby
relieved Plaintiff from his shift, and asked why Plaintiff was
squinting his eyes and clenching his fists, and if he were going
to hit Glasby. (SMF ¶ 59.) Plaintiff contends he was doing none
of those things and thought Glasby was trying to provoke him or
set him up. (SMF ¶ 60; Counterstatement of Material Facts
(“CMF”) [Docket Item 42] ¶ 12.) Plaintiff discussed with Officer
Snyder the possibility of contacting PSEG’s Employee Concerns
Program (“ECP”), about this treatment by his co-workers. (SMF ¶¶
61-65.) The next day, the union president, Anthony Rizzo, told
Plaintiff: “I hear you’re going to contact Employee Concerns. Go

6

ahead and contact Employee Concerns and see where that gets
you.” (SMF ¶ 66.)
Plaintiff contacted the manager of ECP, Mike Headrick, and
left a message requesting that Headrick call him back on his
cell phone. (SMF ¶¶ 67-69; CMF ¶ 16.) Instead, Headrick called
Plaintiff’s supervisor, Dave Mizenis, who, over the radio,
relayed the message for Plaintiff to call “extension 2014,”
which Plaintiff feared would be recognized by his co-workers as
the ECP extension. 2 (SMF ¶¶ 70-73.) Headrick later apologized for
calling the supervisor, and arranged to meet Plaintiff that
evening, to discuss the work environment. (SMF ¶¶ 75-76.)
Plaintiff met with Headrick twice and reported that his coworkers were treating him differently after the radio message to
call extension 2014; one officer had asked Plaintiff “what was
wrong with him” and “if he had a problem,” and another asked,
“what’s the matter with you, Fischer?” (SMF ¶¶ 79-82.) Headrick
promised to investigate. (SMF ¶ 83.)
Plaintiff also arranged meetings with Hunter Sawders,
project manager for G4S, and Brian Jacques, PSEG security
manager. (SMF ¶¶ 84-88.) Jacques suggested that Plaintiff be
assigned to administrative work in the building, to separate him
from his fellow union officers while the situation was under

2

Plaintiff contends he was certain that others recognized the
extension. (CMF ¶ 18.)
7

review. (SMF ¶ 89.) Although Plaintiff reported to work in the
administrative building at least twice, Rizzo informed Sawders
that the union’s collective bargaining agreement did not allow
officers to perform such work. (SMF ¶ 96.) Consequently, on or
around May 24, 2010, Plaintiff was placed on administrative
leave with pay, pending an investigation. (SMF ¶ 98.)
G4S retained attorney Arthur Domby to investigate
Plaintiff’s concerns. (SMF ¶ 92.) Domby spoke with Plaintiff
several times throughout the investigation, and as the
investigation drew to a close, in July 2010, Domby told
Plaintiff that he believed the work environment was being
corrected. (SMF ¶¶ 99-102.) Domby said that any disciplinary
action against union co-workers would be up to Sawders and G4S.
(SMF ¶ 103.)
In August 2010, Plaintiff also contacted a field examiner
at the National Labor Relations Board office in Philadelphia
about filing unfair labor practice charges against the union and
G4S. (SMF ¶¶ 105-06.) The field examiner drafted charges based
on Plaintiff’s representations, but Plaintiff ultimately decided
not to sign or file charges. (SMF ¶¶ 107-09.) Plaintiff asserts
that he told members of management, including Sawders, that he
was considering filing NLRB charges. (CMF ¶ 33; Certification of
Bryan Fischer (“Fischer Cert.”) [Docket Item 42-1] ¶ 27.)
Defendant contends that, because Plaintiff never filed charges,
8

neither G4S nor the union ever received notice of any NLRB
charges. (SMF ¶¶ 110-11.)
3. Meetings with management
In September 2010, Plaintiff had a series of telephone
conversations and in-person meetings with management of G4S and
PSEG about whether and how Plaintiff could return to work. In
the conversations, management reassured Plaintiff that they were
taking his concerns seriously and that they would take necessary
action to deal with anyone who gave Plaintiff trouble. Plaintiff
surreptitiously recorded these conversations with a voiceactivated recording device. (SMF ¶ 104.) Plaintiff later
explained that he wanted to document “the honest truth of
whatever [management] thought they were going to do” and “didn’t
want them to change their wording based on knowing that I had a
recording device.” (Fischer Dep. (Def. Ex. B) at 383:21-384:13.)
He thought that recording the conversations would protect his
“well-being.” (Id. at 384:25-385:2.) As discussed next, the
transcripts of Plaintiff’s secret recordings document that
Defendant’s management took prompt and reasonable measures to
protect Plaintiff from workplace harassment by co-workers and to
preserve his employment.
a. September 9, 2010
On September 9, 2010, Plaintiff met with Sawders and Robert
Kindelein, who managed the Safety Conscious Work Environment
9

(“SCWE”) program for G4S, about returning to work. (SMF ¶¶ 13,
115.) Plaintiff secretly recorded the conversation, as noted.
Both Sawders and Kindelein assured Plaintiff that changes were
being made in the workplace and that management would have “zero
tolerance” of harassment toward Plaintiff upon his return. (Tr.
of 9/09/10 Conversation at 68:18-21). Sawders said:
I want to make sure you know that I’m aware of the issues
raised. Obviously, I’ve seen the investigation. There
are some issues I still need to address with some of the
force. Discipline will be issued wherever warranted.
Coaching will be issued wherever warranted. . . . But I
want you to know that I will take action on the parts
that need to have action taken on them.
(Id. at 80:20-81:4.) Sawders explained that “the supervisors are
going to quickly get some reigns put on them” and that “life is
about to change for them.” (Id. at 72:25-73:1, 74:4-12.) Sawders
said he specifically discussed Plaintiff’s situation with the
supervisors so that “there’s going to be a heightened level of
awareness out there.” (Id. at 81:9-10.) Sawders also reported
that he spoke to, and provided reading material to, “every
shift” and told the officers that “[t]his stuff about rats and
snitches, that belongs in a prison. It doesn’t belong here.”
(Id. at 74:15-21.) Kindelein added that “[t]here’s going to be a
lot of SCWE things addressed.” (Id. at 74:13-14.) The managers
pledged to take any action necessary and told Plaintiff that
anyone who harassed Plaintiff would be “done.” (Id. at 75:9-13,
81:2-10, 142:1-8; 145:17-18.) Sawders encouraged Plaintiff to
10

continue reporting safety violations through the proper chain of
command but told him to report any instances of harassment
directly to him. (Id. at 68:25-69:9, 71:20-22.) Sawders also
discussed how Plaintiff would have to undergo a fitness-for-duty
procedure, including drug testing, because he had been away from
work for so long. (SMF ¶¶ 115-18.)
Kindelein also discussed with Plaintiff an allegation
contained in the investigation report that Plaintiff reported
that he caught an officer named Katie Harris sleeping. (Tr. of
Conversation with Fischer, Kindelein & Sawders (Pl. Ex. F)
[Docket Item 42-6] at 6:10-7:42.) Plaintiff responded that
“[t]hat’s a complete fabrication and lie” (id. at 7:12-13) and
that “this is a union retaliation.” (Id. at 11:17-18.) Kindelein
replied: “I got to look into it.” (Id. at 11:24.)
During this and subsequent conversations that Plaintiff
recorded, Plaintiff expressed continued concerns about his
safety. “I mean, do I think somebody’s going to shoot me? No.”
(Tr. of 9/09/10 Conversation (marked as D-37 within Def. Ex. C.)
[Docket Item 40-10 at 37] at 103:15-16.) “Did anybody say
they’re going to beat me up or anything that -- like that? No,
but I’ve heard people aren’t happy with [me].” 3 (Tr. of 9/10/10

3

Mike Bruecks, PSEG’s security director, responded: “Well, we’re
taking care of that. Okay? We’re addressing those behaviors and
actions of anybody who would even -- you know, because . . . we
want you to be coming back into it, and we support you coming
11

Conversation with Fischer, Kindelein & Bruecks (marked as D-40
within Def. Ex. C) [Docket Item 40-10 at 62] at 100:10-14.) “I
really believe that somebody, given the opportunity, could
possibly do something physically. I mean, do I have concrete
evidence? No, I don’t. But . . . based on things I’ve heard and
then were told to me . . . I probably feel that something like
that could possibly happen to me.” (Tr. of 9/10/10 Conversation
with Fischer, Kindelein & Sawders (marked as D-42 within Def.
Ex. C) [Docket Item 40-10 at 70] at 3:12-17.) Plaintiff added:
“I mean, I’m a man. I can take it. And like I said, they might
say, Fischer, you got a high receding hairline; Fischer, you’re
skinny. I mean, that’s -- that’s -- you know, I’m a man.” (Tr.
of 9/10/10 Conversation with Fischer, Kindelein & Bruecks at
101:14-17.) He was particularly concerned about “a situation
that I would be in where somebody makes an accusation that he
freaked out on me and -- and really they struck me and now -now they’re trying to come up with a story to defend what they
did to me.” (Id. at 102:2-6.)
b. September 10, 2010
Talks continued the next day, with Mike Bruecks, PSEG’s
security director, which Plaintiff also secretly recorded.
Bruecks told Plaintiff that he had seen the investigator’s

back.” (Tr. of 9/10/10 Conversation with Fischer, Kindelein &
Bruecks at 100:15-22.)
12

report and PSEG supported Plaintiff’s return and would take care
of any problems. (SMF ¶¶ 126, 129-30; Tr. of 9/10/10
Conversation with Fischer, Kindelein & Bruecks at 93:11-13,
100:15-22.) Bruecks said: “We all have to acknowledge that it’s
not going to be a perfect ride, because of the . . .
investigation. We will take care of that, if anybody steps out
of line.” (Id. at 103:13-16.)
During a follow-up conference call, Kindelein asked
Plaintiff what G4S could do to alleviate his concerns, and
Plaintiff replied that he did not know. (SMF ¶¶ 127-28.)
Plaintiff discussed returning to work in such a manner that he
would be separated from officers who threatened him, but he
stated:
I won’t want to say no specific names, because I really
don’t have a specific name . . . -- I mean, there are a
few that I feel I could threatened by [sic], but I don’t
want to reveal their names, because that would be unfair
to them, and pre-judgmental on my part.
(Tr. of 9/10/10 Conversation with Fischer, Kindelein & Sawders
(marked as D-42 within Def. Ex. C) [Docket Item 40-10 at 71] at
4:3-9.) Plaintiff also discussed the possible termination of
harassing officers, but Plaintiff acknowledged that such a move
could backfire:
MR. FISCHER: . . . And obviously I’m hearing, you know,
you had reiterated that nobody’s going to be terminated,
and -- and I understand that. I’m not going to tell you
how to do your job and how you would keep this force
intact.
13

MR. SAWDERS: Would terminating some people make you feel
more comfortable?
MR. FISCHER: . . . in a way, it would, but then, in a
way, I’d fear that what retaliation would come from them
terminations. So, it is like a double-edged sword.
(Id. [Docket Item 40-11] at 8:18-9:2.)
Kindelein promised to speak with G4S corporate officials
about options for Plaintiff. (SMF ¶ 132.) Plaintiff asked about
being transferred to another G4S site. (SMF ¶ 133-34.) Kindelein
advised that the nearest G4S site was Seabrook, N.H. (SMF ¶
137.) When asked to suggest other options, Plaintiff floated the
idea of a severance package. (SMF ¶¶ 138-39.) Sawders told
Plaintiff that the attorney for G4S and Plaintiff’s attorney
would have to discuss these options, but that Plaintiff should
continue the process of preparing to return to work, “just in
case.” 4 (SMF ¶ 141; Tr. of 9/10/10 Conversation with Fischer,

4

Plaintiff contends that he left the September 10, 2010 meeting
believing that all three options were available to him (CMF ¶
49) -- transfer, severance or returning to work with some safety
measures. But the transcript of the conversation of September
10, 2010, does not contain any statements that could be
reasonably construed as promises that Plaintiff unilaterally
could elect transfer or dictate terms of a severance package.
(See, e.g., Tr. of 9/10/10 Conversation with Fischer, Kindelein
& Sawders [Docket Item 40-11 at 1] at 7:16-18 (Sawders telling
Plaintiff: “obviously some things we can do; some things we
can’t. But we -- we need to know what you’d like. What are you
thinking?”); see also id. at 24:23-25 (Sawders telling
Plaintiff: “It doesn’t mean we can do any of them, but I got to
know, because maybe we can. I don’t know. Some of these are
outside of my authority . . . .”); see also Fischer dep. at
373:11-19 (admitting that Sawders told Plaintiff to continue the
14

Kindelein & Sawders (marked as D-42 within Def. Ex. C) [Docket
Item 40-11 at 15] at 25:17-24.) Kindelein stated that “your
health and safety is our most important priority right now.”
(Id. at 14:6-7.)
c. Other correspondence and Plaintiff’s
termination
Plaintiff met with Sawders again on September 16, 2010.
(SMF ¶ 142.) Sawders told Plaintiff that he could not create a
position at the Salem-Hope Creek facility that would “keep
[Plaintiff] away from other people that are of concern to you.”
(SMF ¶ 144; Tr. of 9/16/10 Meeting (marked as D-46 within Def.
Ex. C.) [Docket Item 40-11 at 28] at 4:5-9.) However, Plaintiff
testified that, at some point, Sawders told him that Mizenis,
the supervisor who relayed the message from ECP to Plaintiff
over the radio, would not be assigned to Plaintiff’s shift upon
his return to work. (Fischer dep. at 347:13-17.) Sawders offered
Plaintiff a transfer to Seabrook, N.H., but advised him that
security officers there belonged to a different union, and
Plaintiff would start anew in terms of salary and seniority.
(Tr. of 9/16/10 Meeting at 4:12-5:11.) Plaintiff again raised
the option of a severance package, but Sawders told Plaintiff he
was only authorized to offer a transfer to New Hampshire, and

in-processing so that no time was lost, even as G4S explored
other options).)
15

that the attorneys should confer about severance. (SMF ¶¶ 14849.)
On September 24, 2010, Plaintiff’s counsel sent G4S a
letter rejecting the offer to transfer. (SMF ¶ 152.) In the
letter, Plaintiff demanded a severance package of $800,000. (SMF
¶ 153; D-46 (within Def. Ex. C) [Docket Item 40-11 at 46] at 3.)
G4S’s attorney rejected Plaintiff’s severance demand the same
day, and instructed Plaintiff to contact management no later
than September 27, 2010, to return to work or pursue the
transfer. 5 (SMF ¶ 154.) The letter stated that if Plaintiff did
not contact management by the close of business on September 27,
2010, G4S would deem him to have resigned voluntarily from his
position. (SMF ¶ 154.) This dispute is immaterial because
Defendant extended Plaintiff’s reporting date, as next
discussed.
Plaintiff contacted G4S on September 28, 2010. (SMF ¶ 155.)
He told Charles Workman, the regional director for G4S, that he
would not return to work until his attorney spoke with G4S’s
attorney and that he still feared for his personal safety. (SMF
¶¶ 156-58.) Workman replied that if Plaintiff did not return to

5

Plaintiff argues that Defendant does not assert that the G4S’s
attorney actually sent the letter on September 24, 2010, only
that he prepared the letter on that date. (CMF ¶ 35.) Plaintiff
asserts that the letter demanding Plaintiff to return to work
was not received by Plaintiff’s lawyer until September 28, 2010.
(CMF ¶ 36.)
16

work on September 29, 2010, he would face discipline under the
union contract. (SMF ¶ 159.) Plaintiff did not report for work
on September 29. (SMF ¶ 160.) Plaintiff contends that he called
out “as permitted under the terms of the collective bargaining
agreement.” (CMF ¶ 38.) Workman left Plaintiff a message
advising him to return to work on October 4, 2010, or he would
face disciplinary action under the collective bargaining
agreement. (Id.) Plaintiff’s counsel advised G4S by letter that
Plaintiff would not be returning to employment at the facility.
(SMF ¶ 161; Def. Ex. C (marked as D-49) [Docket Item 40-11 at
50].) On October 8, 2010, Plaintiff received a certified letter
that his employment was terminated because he violated the
collective bargaining agreement by being a “no call, no show”
for work on September 29 and October 4. (SMF ¶ 162.) Plaintiff
considered himself constructively discharged. (CMF ¶ 39.)
Procedural history
On November 16, 2010, Plaintiff filed a seven-count
Complaint in Superior Court of New Jersey, Gloucester County,
against G4S and Nuclear Power Plant Security Officers of
America, which Defendant removed to this Court. 6 [Docket Item 1.]
The Court granted the union’s unopposed motion to dismiss, and,
after granting a separate motion to dismiss by G4S, permitted

6

The Court has jurisdiction under 28 U.S.C. § 1332(a). (See Am.
Compl. [Docket Item 24] ¶¶ 3-8.)
17

Plaintiff to amend the Complaint. [Docket Items 14, 19 & 22.]
The Amended Complaint states a single cause of action under the
New Jersey Conscientious Employee Protection Act (“CEPA”),
N.J.S.A. 34:19-1, et seq.: “The plaintiff’s termination was in
retaliation for him speaking out or threatening to speak out
about the defendant’s inability or unwillingness to follow
safety requirements of the U.S. Nuclear Regulatory Commission
and for speaking out or threatening to speak out about unfair
labor practices to the National Labor Relations Board.” (Am.
Compl. [Docket Item 24] ¶ 38.)
The Court heard oral argument on Defendant’s motion for
summary judgment on May 15, 2014, and received supplemental
briefing from the parties after argument.
III. Standard of review
A court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if, based on the evidence in
the record, a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it might affect the outcome
of the suit. Id. Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
18

establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
IV.

Discussion
Defendant contends that Plaintiff voluntarily abandoned his

job when he chose not to return to work on September 29 and
October 4, 2010. (Def. Mot. [Docket Item 40-1] at 2.) Defendant
moves for summary judgment on the ground that “no reasonable
juror could believe the Plaintiff was subject to any retaliatory
conduct.” (Id.) Defendant argues that Plaintiff fails to make
out a prima facie case of retaliation under CEPA, and even if he
could, he fails to present any evidence that the articulated
reason for termination -- failing to show up for work on two
days, as directed -- was pretextual. Plaintiff contends he is
not required to establish a prima facie case, but that he is
able to do so on the record. (See Pl. Opp’n [Docket Item 42] at
12-17; see also infra, n.8.) Plaintiff maintains that he was
constructively terminated in retaliation for his protected
activity, and that the “no call, no show” explanation for his
termination was pretextual. (Pl. Opp’n at 16-17.)
Statutory background
CEPA is a “whistleblower statute” that “creates a cause of
action for an employee who is subjected to retaliation for
19

reporting workplace misconduct.” Battaglia v. United Parcel
Serv., Inc., 214 N.J. 518, 555 (2013). The New Jersey Supreme
Court has recognized that “CEPA is a remedial statute that
‘promotes a strong public policy of the State’ and ‘therefore
should be construed liberally to effectuate its important social
goal.’” Id. (quoting Abbamont v. Piscataway Twp. Bd. of Educ.,
138 N.J. 405, 431 (1994)). The statute provides:
An employer shall not take any retaliatory action
against an employee because the employee does any of the
following:
a. Discloses, or threatens to disclose 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
regulation promulgated to law . . . ; or

rule

or

. . . c. Objects to . . . any activity, policy or practice
which the employee reasonably believes:
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law . . . ; or
(3) is incompatible with a clear mandate of public
policy concerning the public health, safety or
welfare or protection of environment.
N.J.S.A. 34:19-3. A plaintiff bringing a CEPA claim under
N.J.S.A. 34:19-3c must prove:
(1) he or she reasonably believed that his or her
employer’s conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she performed a
“whistle-blowing” activity described in N.J.S.A. 34:19–
3c; (3) an adverse employment action was taken against
him or her; and (4) a causal connection exists between
the whistle-blowing activity and the adverse employment
action.
20

Battaglia, 214 N.J. at 556 (quoting Dzwonar v. McDevitt, 177
N.J. 451, 462 (2003)). At oral argument, Plaintiff’s counsel
clarified that the allegations here state claims under both
N.J.S.A. 34:19-3c(1) and 3c(3).
CEPA claims are governed by the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81,
92 (3d Cir. 1999) (“the well-established burden-shifting
analysis that is used in federal discrimination cases involving
‘pretext’ claims is appropriately used in a CEPA case”);
Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App Div.
2008) (stating that the burden-shifting analysis used in New
Jersey Law Against Discrimination cases -- the McDonnell Douglas
framework -- should be applied to CEPA cases). Under this
framework, the employee bears the initial burden of establishing
a prima facie case, and then the burden shifts to the employer
to articulate a legitimate, non-retaliatory reason for the
employment decision. See Shellenberger v. Summit Bancorp, Inc.,
318 F.3d 183, 187 (3d Cir. 2003). If the defendant meets its
burden, the employee “must then prove that ‘retaliatory animus
played a role in the employer’s decisionmaking process and that
it had a determinative effect on the outcome of that process.’”

21

Id. (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d
Cir. 1997)). 7
Plaintiff’s certification
As a preliminary matter, Defendant urges the Court to
disregard Plaintiff’s certification, attached to his opposition,

7

Plaintiff argues that he does not need to establish a prima
facie case if Defendant already has articulated a legitimate,
non-retaliatory reason for its conduct. (Pl. Opp’n at 12.)
Plaintiff argues that when “the defendant has done everything
that would be required of him if the plaintiff had properly made
out a prima facie case, whether the plaintiff really did so is
no longer relevant.” (Id., quoting U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983).) In Aikens, the
district court entered judgment in favor of the defendantemployer after a full trial on the merits. Aikens, 460 U.S. at
713. The district court also denied the defendant’s motion to
dismiss for failure to establish a prima facie case at the close
of the plaintiff’s case-in-chief. Id. at 714 n.4. On appeal, the
parties disputed whether the plaintiff had established a prima
facie case. In making the statement quoted above, the Supreme
Court observed that, after a full trial and after the plaintiff
survived a motion to dismiss based on the evidence in the casein-chief, the relevant question was not whether the plaintiff
established a prima facie case but whether the plaintiff’s job
candidacy had been rejected for a discriminatory reason. See
Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 221 (3d Cir.
2000) (declining to read Aikens expansively and stating that “it
is clearly proper to instruct the jury that it may consider
whether the factual predicates necessary to establish the prima
facie case have been shown”).
Here, the Court is asked to rule on Defendant’s motion for
summary judgment, which directly challenges the sufficiency of
Plaintiff’s evidence to establish the elements of a CEPA claim.
Defendant also argues in the alternative that there was a nonretaliatory reason for Plaintiff’s termination and that the
stated reason was not pretextual. This case has not received a
full trial on the merits. This Court has not denied a motion to
dismiss based on Plaintiff’s case-in-chief. Nothing in Aikens,
or Plaintiff’s other citations, relieves Plaintiff of his
initial burden to establish a prima facie case of a CEPA
violation under New Jersey law, at the summary judgment phase.
22

under the “sham affidavit doctrine.” (Reply [Docket Item 43] at
5.) The doctrine provides that “a party may not create a
material issue of fact to defeat summary judgment by filing an
affidavit disputing his or her own sworn testimony without
demonstrating a plausible explanation for the conflict.” Jiminez
v. All Am. Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007).
Defendant contends that the certification contradicts
Plaintiff’s deposition testimony, but Defendant has not
demonstrated any contradictions, and therefore the Court will
not disregard the certification.
Defendant sees contradictions in the fact that Plaintiff,
at his deposition, could not identify any law, rule or
regulation that he reasonably believed was violated, and now he
certifies that he believed there was a law, rule or regulation
that was violated. (Reply at 7.) These two facts are not
necessarily inconsistent: Plaintiff could reasonably believe
that a law, rule or regulation existed, without being able to
identify it specifically. The other alleged contradictions do
not strike the Court as incompatible. Because Defendant has not
identified contradictory statements of fact in his deposition
and certification, there is no grounds to ignore the
certification.

23

Reasonable belief that G4S violated a law, rule,
regulation or clear mandate of public policy
Defendant argues that Plaintiff has not established the
first element of a prima facie CEPA violation because he “failed
to identify any statute, regulation or clear mandate of public
policy that G4S violated.” (Def. Mot. at 9.) Defendant contends
that Plaintiff must “enunciate the specific terms of a statute
or regulation, or the clear expression of public policy, which
would be violated if the facts alleged are true.” (Id.)
(internal quotation marks omitted). Defendant concludes that the
“competent record evidence confirms that Plaintiff did not raise
any ‘safety issue’ based on any reasonable belief that Defendant
was violating any statute, regulation or clear mandate of public
policy . . . .” (Def. Mot. at 11).
In opposition, Plaintiff argues that he is “only required
to hold an objectively reasonable belief that a law or public
policy was violated.” (Pl. Opp’n at 14.) He continues: “It is
respectfully submitted that, given the sensitive nature of the
particular type of workplace in this matter, a nuclear power
plant, public policy demands that any employee at such a
facility should feel free to raise any safety or security
concern without the threat of harassment, intimidation, or
termination.” (Id. at 15.) Plaintiff cites no evidence in
support of the reasonableness of his belief that laws, rules or

24

regulations were violated, with the arguable exception of his
own testimony, in which he asserts a subjective belief that the
conduct violated the law.
CEPA requires a plaintiff to “set forth facts that would
support an objectively reasonable belief that a violation has
occurred.” Dzwonar, 177 N.J. at 464. The Court’s task is to
determine whether, based on the record, a reasonable juror could
find that plaintiff had an objectively reasonable belief that
the complained-of conduct violated a law, rule, regulation or
clear mandate of public policy. See id.; Battaglia, 214 N.J. at
558; Maimone v. City of Atl. City, 188 N.J. 221, 233 (2006)
(stating that the plaintiff “only has to show that he had an
‘objectively reasonable belief’ in the existence of such a
violation”). Plaintiff need not identify a law, rule, regulation
or policy that Defendant actually violated if all the facts
asserted are true, but there must be “a substantial nexus
between the complained-of conduct and a law or public policy . .
. .” Dzwonar, 177 N.J. at 464. The New Jersey Supreme Court has
instructed trial courts to “be alert to the sufficiency of the
factual evidence and to whether the acts complained of could
support the finding that the complaining employee’s belief was a
reasonable one.” Battaglia, 214 N.J. at 558.
After briefing on this motion was complete, and after the
Court held oral argument, the New Jersey Supreme Court issued an
25

opinion on the proof required to sustain a CEPA claim and
appears to have heightened the burden on CEPA plaintiffs. See
Hitesman v. Bridgeway, Inc., No. A-73-12 (N.J. June 16, 2014).
The Supreme Court held that “a plaintiff asserting that his or
her employer’s conduct is incompatible with a clear mandate of
public policy concerning the public health must, at a minimum,
identify authority that applies to the activity, policy or
practice of the employer.” Id., slip op. at *3 (emphasis added).
The Supreme Court further observed that “a pivotal component of
a CEPA claim is the plaintiff’s identification of authority in
one or more of the categories enumerated in the statute that
bears a substantial nexus to his or her claim,” and instructed
the trial court to “enter judgment for a defendant when no such
law or policy is forthcoming.” Id. at *28 (citing Dzwonar, 177
N.J. at 463) (emphasis added).

The Supreme Court continued:

Whether a CEPA plaintiff invokes a law, rule,
regulation, declaratory ruling, or professional code of
ethics . . . under N.J.S.A. 34:19-3(a)(1) or (c)(1), or
alleges employer conduct ‘incompatible with a clear
mandate of public policy concerning the public health’
under N.J.S.A. 34:19-3(c)(3), the plaintiff must
identify the authority that provides a standard against
which the conduct of the defendant may be measured.
(Id. at *28-*29) (emphasis added). In summary, the Supreme Court
concluded that “to present a cognizable retaliation claim . . .
under N.J.S.A. 34:19-3(a)(1) and (c)(1), or . . . under N.J.S.A.
34:19-3(c)(3), a plaintiff must present authority meeting the

26

statutory criteria” -- meaning a law, rule regulation or clear
mandate of public policy -- “that serves as a standard for the
employer’s conduct. In the absence of such authority, the CEPA
claim fails.” Id. at *33 (emphasis added).
Prior to the Hitesman opinion, the governing framework for
CEPA claims was provided by Dzwonar, which held that “the trial
court must make a threshold determination that there is a
substantial nexus between the complained-of conduct and a law or
public policy identified by the court or the plaintiff.”
Dzwonar, 177 N.J. at 464 (emphasis added). Dzwonar thus appeared
to permit the trial court to identify a law or public policy
that shared a substantial nexus with the complained-of conduct,
if no citation to authority was forthcoming from the plaintiff.
Although the majority opinion in Hitesman continues to cite that
language from Dzwonar with approval, see Hitesman, slip op at
*24, *26, 8 the dissenting opinion in Hitesman highlights how the
law now places the burden squarely on the plaintiff to identify

8

More precisely, the Hitesman majority specified that “[t]he
trail court must determine whether there is a substantial nexus
between the complained-of conduct and a ‘clear mandate of public
policy’ identified by the court or the plaintiff.” Hitesman,
slip op. at *26 (citing Dzwonar, 177 N.J. at 464). After
Hitesman, it is unclear whether the court may initially identify
the source of public policy, but it is clear that the plaintiff
must demonstrate the existence of such a source of law or other
authority that sets the governing standard for the employer’s
conduct, and prove it to the factfinder. Hitesman, slip op. at
*30, *32-*33.
27

some source of authority by which the employer’s conduct and the
plaintiff’s reasonable belief is measured:
The majority cites no legal authority for the new demands
it places on CEPA plaintiffs. . . . Until today, no case
required a plaintiff to make a hard copy of a federal or
state statute or regulation, such as the CDC guidelines,
and place or read it into evidence.
Id., slip op. at *7 (Albin, J., dissenting)). The strong
language in Hitesman suggests that the plaintiff, and not the
Court, must initially identify the source of law or public
policy with which the complained-of conduct shares a substantial
nexus, although the uncritical quotation of Dzwonar suggests
that the Dzwonar framework remains in full force. 9 In any event,
Hitesman did not change the requirement that a CEPA plaintiff
must adduce sufficient proof for a jury to find that his or her
belief that a law, rule or regulation had been violated, or a
clear mandate of public policy contravened, was objectively
reasonable. In many cases, the best evidence of a belief’s
objective reasonableness is a source of law or policy that
shares a substantial nexus with the complained-of conduct.
Here, in the motion briefs and at oral argument, Plaintiff
initially took the position that he did not need to identify any
specific law or policy to satisfy the reasonable belief prong of

9

The issue of whether the trial court could initially identify a
source of law or policy was not at issue in Hitesman, where the
plaintiff identified three possible sources. Hitesman, slip op.
at *33.
28

his CEPA claim. His evidence of the reasonableness of his belief
that certain conduct violated a law or policy consisted solely
of his own testimony that he believed that a law or policy had
been violated. Plaintiff cited no other evidence to support a
finding that his belief was objectively reasonable. He relied
exclusively on these assertions:
10. Based upon my training, without being able to cite
it specifically, as of April 15, 2009, I believed that
there was a statute, rule, or regulation prohibiting
bringing cameras into a nuclear facility without a valid
camera pass.
11. Based on my training and the daily Security
Information Bulletin I received at the beginning of
every
shift, 10
without
being
able
to
cite
it
specifically, as of February 14, 2010, I believed that
there was a statute, rule, or regulation requiring an
armed nuclear security officer to self-report being
under the influence of alcohol within five hours of
reporting for duty.
(Fischer Cert. ¶¶ 10-11.) He made no similar statement about his
belief regarding the chair removal in 2008. These statements may
support a finding of a subjective belief, but do not, on their
own, permit a finding of an objectively reasonable belief that a
law or regulation was being violated.
At oral argument pre-Hitesman, heeding the language of
Dzwonar permitting the Court to identify a law or public policy,
the Court raised the question of whether certain Nuclear

10

Plaintiff does not indicate that any Security Information
Bulletin is contained in the present record. Plaintiff does not
cite to or describe any such bulletin.
29

Regulatory Commission regulations could provide an objectively
reasonable basis for Plaintiff’s belief regarding prohibition of
alcohol use within five hours of reporting to duty.
Specifically, the Court identified regulations that outline
fitness-for-duty programs for armed security force officers at
nuclear facilities. 10 C.F.R. § 26.4(a)(5). The Nuclear
Regulatory Commission regulations provide for mandatory drug and
alcohol testing of an individual “[i]n response to an
individual’s observed behavior or physical condition indicating
possible substance abuse or after receiving credible information
that an individual is engaging in substance abuse . . . .” 10
C.F.R. § 26.31(c)(2). The regulations expressly name “alcohol”
as a “substance[] tested.” 10 C.F.R. § 26.31(d)(1). The
regulations provide that
Any individual who is determined to have been involved
in . . . the consumption of alcohol within a protected
area of any nuclear power plant . . . or while performing
the duties that require the individual to be subject to
this subpart shall immediately have his or her
authorization unfavorably terminated and denied for a
minimum of 5 years from the date of the unfavorable
termination of authorization.
10 C.F.R. § 26.75(c).
The Court invited the parties to file supplemental briefs
to discuss whether these regulations play any role in this suit.
In response, Plaintiff initially continued to assert that “he is
not required to be able to cite, chapter and verse, the statute,

30

regulation or policy he sought to enforce . . . .” [Docket Item
48 at 2.] However, he ultimately did endorse the regulations
raised by the Court:
If the court agrees . . . that there at least must be an
identifiable law, regulation or policy . . . the court
may, as it has done here, identify that law or public
policy. One of the several issues raised by the plaintiff
as being whistleblowing activity was a violation of the
facility
fitness-for-duty
requirement
promulgated
pursuant to 10 C.F.R. § 26.4(a)(5).
[Id.]
Given the unique confluence of the procedural history of
this case with the new opinion in Hitesman, the Court finds that
Plaintiff’s endorsement of the regulations identified by the
Court suffices to meet the burden of identifying authority by
which the employer’s conduct and the objective reasonableness of
his belief is measured.
The Court next must determine whether Plaintiff has adduced
sufficient evidence from which a jury could reasonably conclude
that there was a substantial nexus between the complained-of
conduct and regulations, and whether Plaintiff’s belief that
some regulation had been violated was objectively reasonable.
The above-cited NRC regulations admittedly concern fitness-forduty programs and drug testing, and do not expressly dictate
that an intoxicated security officer must self-report.
Nonetheless, a jury could reasonably conclude that if drug
testing is mandated by law, and if an officer may be fired for
31

failing a substance test, a fellow officer could reasonably
believe that some unidentified regulation prohibits an armed
security officer at a nuclear facility from reporting for duty
while intoxicated.
Other record evidence supports this conclusion. The record
contains the Wackenhut Safety Handbook, which Plaintiff
testified he received in 2007 during initial training.
(Wackenhut Safety Handbook (marked as D-30 within Def. Ex. C)
[Docket Item 40-9 at 6] at 32; Fischer Dep. at 304:21-305:15.)
The handbook states that “any use . . . or possession of . . .
alcohol while on duty or on Company property is an offense
subject to termination of employment.” (Id.) It continues: “Offthe-job use of alcohol which adversely affects an employee’s job
performance is proper cause for administrative or disciplinary
action up to and including termination of employment.” (Id.) The
handbook does not state that being intoxicated on the job is a
violation of law, as opposed to a violation of the employer’s
code of conduct, but a jury could consider this evidence, in
conjunction with the NRC drug-testing regulations, as support
for Plaintiff’s position that his belief was objectively
reasonable.
It is hardly a stretch to conclude that the intoxication or
similar impairment of an armed security officer at a nuclear
facility is a safety risk to the public. See Mollo v. Passaic
32

Valley Sewerage Comm’rs, No. 07-1655, 2009 WL 5216976, at *9
(D.N.J. Dec. 30, 2009) (discussing that “persons who have
routine access to dangerous nuclear power facilities . . . ‘can
cause great human loss before any signs of impairment become
noticeable to supervisors or others’”), aff’d, 406 F. App’x 664
(3d Cir. 2011); EEOC v. U.S. Steel Corp., No. 10-1284, 2013 WL
625315, at *19 (W.D. Pa. Feb. 20, 2013) (stating that “private
security officers . . . and nuclear plant operators” are “jobs
that, if performed badly, could result in harm to others in the
general public”).
These cases, the regulations, the Handbook, and Plaintiff’s
testimony, could support a jury finding that plaintiff had an
objectively reasonable belief that Officer Crowell violated a
regulation or clear mandate of public policy bearing on public
safety. Plaintiff need not prove that his violation actually
would have violated a regulation; he need only show a
substantial nexus between a regulation and the complained-of
conduct. Hitesman, slip op. at *25 (citing Dzwonar, 177 N.J. at
464). The record contains a sufficient showing of a substantial
nexus, and therefore, the Court cannot determine as a matter of
law that Plaintiff’s belief was not objectively reasonable.
Plaintiff has adduced evidence from which a reasonable
factfinder could find sufficient to establish the first element
of his CEPA claim, to the extent the claim is based on the
33

disclosure of Officer Crowell’s intoxicated state to his
supervisor.
By contrast, Plaintiff has not identified any law, rule,
regulation or clear mandate of public policy relating to camera
passes at nuclear facilities or chairs for security guards near
the door to the roof of a nuclear facility. Plaintiff adduces no
evidence that he had an objectively reasonable belief that
Officer Glasby violated the law by permitting a visitor to enter
without a camera pass. Plaintiff does not even attempt to
testify in his certification that he believed the existence of a
chair near the door to the roof of the property violated the law
for CEPA purposes. Plaintiff’s CEPA claims based on the chair
and the camera-pass incidents fail as a matter of law because
Plaintiff has not adduced sufficient evidence to “support the
finding that the complaining employee’s belief was a reasonable
one.” Battaglia, 214 N.J. at 558.
Whether Plaintiff engaged in whistleblowing activities
Defendant next argues that “Plaintiff’s alleged complaints
are not whistleblowing activities because they involve
complaints of a private nature rather than complaints about
public harm.” (Def. Mot. at 12.) Defendant maintains that
“violative activity must ‘have public ramifications,’ as opposed
to merely consisting of a private dispute between an employer

34

and employee.” (Id., quoting Maw v. Advanced Clinical Commc’ns,
Inc., 179 N.J. 439, 445 (2004).)
While it is true that an employee proceeding under N.J.S.A.
34:19-3c(3) “must make the additional showing that the ‘clear
mandate of public policy’ . . . is one that ‘concern[s] the
public health, safety or welfare or protection of the
environment,” the New Jersey Supreme Court has unequivocally
stated that “[t]his requirement is ‘unique’ to c(3).” Maimone,
188 N.J. at 231. In other words, an employee proceeding under
N.J.S.A. 34:19-3c(1) need not make the same showing concerning
“the public health, safety or welfare or protection of the
environment,” only that the whistleblower reasonably believed
that the complained-of conduct violated a law, rule or
regulation. To the extent Plaintiff proceeds under c(1), he need
not show that the complained-of conduct implicated public
health, safety or welfare. However, even under c(3), Plaintiff
has made a sufficient showing that Crowell’s intoxication
implicated public health, safety or welfare.
CEPA “‘is intended to protect those employees whose
disclosures fall sensibly within the statute; it is not intended
to spawn litigation concerning the most trivial or benign
employee complaints.’” Battaglia, 214 N.J. at 558 (quoting
Roach, 164 N.J. at 613-14). CEPA does not protect “a complaint
about a minor violation of a company’s internal policy . . . .”
35

Id. at 561. Rather, “CEPA is designed to protect employees who
blow the whistle on illegal or unethical activity committed by
their employers or co-employees.” Roach, 164 N.J. at 609-10; see
also DeLisa v. Cnty. of Bergen, 165 N.J. 140, 146 (2000) (“‘CEPA
covers employees who objects to the conduct of co-workers’”)
(citing Higgins v. Pascack Valley Hosp., 158 N.J. 404, 419
(1999)).
Here, the disclosure of information to a supervisor that an
armed security officer at a nuclear facility was intoxicated or
suspected to be intoxicated is not a “trivial or benign employee
complaint” or a “minor violation” of a company’s internal
policy. Rather, Plaintiff’s disclosure concerned a serious
infraction with potentially major public safety implications.
Indeed, Crowell was fired on the spot. Therefore, Plaintiff
engaged in protected activity when he blew “the whistle on
illegal or unethical activity committed by” his co-employee.
DeLisa, 165 N.J. at 146.
Plaintiff contends that he engaged in other protected
activity by submitting “a written list of suggestions (a
‘deficiency list’) to make the site safer.” (Pl. Opp’n at 15,
citing CMF ¶ 31). Plaintiff certifies that “I drafted a list of
safety concerns and suggestions that I shared with management of
PSEG Nuclear and the defendant, including Project Manager Hunter
Sawders, in the spring of 2010 during one of our several
36

meetings, prior to my suspension.” (Fischer Cert. ¶ 26.)
Plaintiff’s suggestions include “pay[ing] closer attention” to
certain matters with security implications, increasing the use
of police dogs, putting the “best shooters from each team” in
the proper location to best prevent an attack, and sending a
“Petition to Congress” to change rules about the religious
rights of security guards. (Fischer Cert. Ex. A.) Submitting
this list to management is not whistleblowing activity within
the meaning of CEPA, because the “list of safety concerns” does
not disclose activities, policies or practices that Plaintiff
believed were in violation of a law, rule, regulation or public
policy. See N.J.S.A. 34:19-3a(1); see also Hitesman v. Bridgeway
Inc., 430 N.J. Super 198, 212 (App. Div. 2013) (“It is not
enough for an employee to rest upon a sincerely held--and
perhaps even correct--belief that the employer has failed to
follow the most appropriate course of action . . . .”), aff’d,
No. A-73-12 (N.J. June 16, 2014). Plaintiff’s list suggests how
to improve security, not how to correct policies or practices
that were believed to be in violation of law. Plaintiff has not
identified any violation of a statute, rule or regulation that
he was reporting to his employer in this list, as required by
CEPA. To the extent Plaintiff’s CEPA claim is based on this list
of safety concerns, Defendant is entitled to summary judgment
because suggesting improvements that do not address allegedly
37

illegal or prohibited policies, practices or conditions simply
is not whistleblowing activity within the meaning of CEPA.
In the Amended Complaint, Plaintiff pleads that his
termination was in retaliation for “speaking out or threatening
to speak out about unfair labor practices to the National Labor
Relations Board.” (Am. Compl. ¶ 38.) Plaintiff’s summary
judgment opposition brief appears to abandon this argument.
Although Plaintiff’s statement of facts and certification refer
to Plaintiff’s decision not to file charges with the NLRB,
Plaintiff now argues that he engaged in protected whistleblowing
activity only “[b]y sharing his concerns with management . . .
.” (Pl. Opp’n at 15.) Plaintiff no longer argues that filing
charges with the NLRB constituted protected activity for
purposes of his CEPA claim. Rather, he argues that he “brought
to the attention of management the fact that he was being
harassed and intimidated by his co-workers after reporting a
number of specific safety issues,” and he “submitted a written
list of suggestions (a ‘deficiency list’) to make the site
safer.” (Id. at 15.) Plaintiff refers to “several” meetings in
May 2010 in which he “convey[ed] his concerns to management,
including the deficiency list.” (Id.) Because Plaintiff does not
argue that telling Sawders that “he was considering ‘going to
the NLRB’” (CMF ¶ 33) constituted protected activity, the Court
deems this argument waived. See Aetna Health Inc. v. Davila, 542
38

U.S. 200, 212 (2004) (deeming an argument waived when the
“[r]espondents did not identify this possible argument in their
brief in opposition”); Travitz v. Ne. Dep’t ILGWU Health &
Welfare Fund, 13 F.3d 704, 711 (3d Cir. 1994) (“When an issue is
not pursued in the argument section of the brief, the appellant
has abandoned and waived that issue on appeal.”); Person v.
Teamsters Local Union 863, No. 12-2293, 2013 WL 5676739, *4
(D.N.J. Oct. 16, 2013) (“Where a party only defends a subset of
claims in opposition to a dispositive motion, the Court will
construe those claims that were not defended as abandoned.”);
Leone-Zwillinger v. N.J., No. 04-5103, 2007 WL 1175786, at *3
(D.N.J. Apr. 19, 2007) (“when a party fails to offer any
argument or evidence . . . in opposition to defendants’ motion
for summary judgement [sic], such claims may be deemed to be
have been abandoned”) (citing Desyatnik v. Atl. Casting & Eng’g
Corp., No. 03-5441, 2006 WL 120163, at *1 (D.N.J. Jan. 17,
2006)).
Thus, Plaintiff’s reporting to management of Crowell’s
suspected intoxication on the job remains as the sole protected
activity under CEPA in this case.
Adverse employment action and causation
The parties agree that Plaintiff suffered an adverse
employment action when he was terminated, but disagree about
whether a causal connection exists between Plaintiff’s
39

whistleblowing and his termination. Defendant argues that “the
competent record evidence shows that Plaintiff voluntarily
terminated his employment when his attorney . . . confirmed
Plaintiff would not be returning to work at Salem Hope Creek
despite all of G4S’s assurances that it would not tolerate any
mistreatment of him by his fellow Union officers.” (Def. Mot. at
13.) Defendant contends that “Plaintiff’s employment came to an
end only because of his own acts -- namely, his voluntary
abandonment of his employment when he was required to return to
work.” (Id. at 14-15.)
Plaintiff argues that his employer gave him “no reasonable
alternative” but to refuse to return to work, and that the “only
option, after Mr. Fischer turned down the transfer to New
Hampshire, was for him to return to work, to the place with his
armed and unhappy co-workers. This was an option no reasonable
person could have accepted under the circumstances.” (Id. at
16.) Plaintiff argues that he suffered a “constructive
termination” because management showed “no willingness to
resolve the problems” and “made no real effort to reintroduce
him into the workforce.” (Id. at 16-17.) Plaintiff contends that
he “was attempting to reach a resolution and was forced to
abandon his job. The only alternative explanation, to be
determined by the fact-finder, is that G4S was tired of having

40

an officer not ‘go with the flow’ and who regularly made waves .
. . .” (Id.)
In a CEPA case, the plaintiff bears the burden of proving
that the protected activity was “a substantial or determinative,
motivating factor” in the adverse employment action. Donofry v.
Autotote Sys., Inc., 350 N.J. Super. 276, 273 (App. Div. 2001);
see also Blizzard v. Exel Logistics N. Am., Inc., No. 02-4722,
2005 WL 3078175, at *9 (D.N.J. Nov. 15, 2005) (“it is
Plaintiff’s burden to establish the causal connection; it is not
Defendant’s burden to disprove causation”). A plaintiff may
demonstrate a causal link using circumstantial evidence. Kachmar
v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997).
Temporal proximity or a pattern of antagonism on the part of the
employer can raise the inference of causation. Espinosa v. Cnty.
of Union, 212 F. App’x 146, 153 (3d Cir. 2007) (quoting Kachmar,
109 F.3d at 177). In addition, the “‘proffered evidence, looked
at as a whole, may suffice to raise the inference.’” Id.
Plaintiff’s case bears a strong resemblance to Espinosa.
There, plaintiff Espinosa, a corrections officer in the Union
County Jail, witnessed fellow officers abuse detainees, and
agreed to testify against the offending officers. Espinosa, 212
F. App’x at 149. Espinosa and the Prosecutor’s Office agreed
that “it would be too dangerous for Espinosa to continue to work
inside the Jail,” based on a “‘long history of intimidation and
41

retaliation against corrections officers in the Union County
Jail who provide information with regard to the conduct of
fellow corrections officers.’” Id. Accordingly, Espinosa was
permitted to leave his job, with pay, until the conclusion of
the trials. Id. In August 2000, after the trials were complete
and a full five years after Espinosa witnessed the original
incident, a County official discovered Espinosa was still on the
payroll, and ordered him to return to his job or resign. Id. at
150. Espinosa did not return to work, and the County placed him
on leave without pay. Id. A few months later, the County
initiated a disciplinary action against Espinosa, and, at the
hearing, Espinosa argued that “he could not return to the Jail
out of concern for his own safety.” Id. The County determined
that “Espinosa had abandoned his job,” and terminated him. Id.
Espinosa sued, arguing, among other things, that he was fired in
retaliation for his testimony against fellow officers, in
violation of CEPA. Id.
The district court granted summary judgment in favor of the
County, and the Third Circuit affirmed. Id. at 151, 154. The
Third Circuit concluded that a jury could not reasonably find
the County terminated Espinosa in retaliation for his protected
activity for three reasons. First, Espinosa admitted in his
deposition that the County would not have fired him had he
returned to his job. Id. at 153. Second, Espinosa knew that the
42

County intended to take him off the payroll at the conclusion of
the trials. Id. at 154. Finally, “Espinosa presented no evidence
supporting his claim that the County acted out of animus toward
him.” Id.
Plaintiff presents an analogous, though not identical,
case. 11 The record shows that, here, like in Espinosa, after
Plaintiff made his protected disclosure, Defendant accommodated
Plaintiff by placing him on paid leave for the duration of an
investigation into Plaintiff’s allegations of harassment. When
the impetus for paid leave ended, Defendant requested Plaintiff
to return to work. In this case, as in Espinosa, Plaintiff
declined to return to work, asserting that he feared for his
personal safety. Defendant terminated Plaintiff for not
returning to work as directed.
Like the plaintiff in Espinosa, Plaintiff has not adduced
evidence to support a finding of causation, i.e., that
Plaintiff’s disclosure of Crowell’s intoxicated state was a
motivating factor in Plaintiff’s termination. Because the
termination came more than seven months after his protected
disclosure, the temporal proximity is not enough to raise a
reasonable inference of causation. Neither does Plaintiff’s

11

The time the plaintiff was on paid leave in Espinosa far
exceeds the time Plaintiff was on leave in this case. Plaintiff
in this case also turned down an alternate accommodation of a
transfer to New Hampshire.
43

evidence suggest a pattern of antagonism by Defendant. Taken as
a whole, the evidence of record does not raise an inference of
causation.
Plaintiff has not adduced evidence to establish a
constructive termination. A constructive discharge under New
Jersey law occurs “when an employer knowingly permit[s]
conditions of discrimination in employment so intolerable that a
reasonable person subject to them would resign.” Shepherd v.
Hunterdon Developmental Ctr., 174 N.J. 1, 27-28 (2002) (internal
quotation marks omitted); see also Donelson v. DuPont Chambers
Works, 206 N.J. 243, 257 (2011) (citing Shepherd). A
constructive discharge claim requires “more egregious conduct
than that sufficient for a hostile work environment claim.”
Shepherd, 174 N.J. at 28. The terminated plaintiff must show
“not merely ‘severe or pervasive’ conduct, but conduct that is
so intolerable that a reasonable person would be forced to
resign rather than continue to endure it.” Id. (quoting Jones v.
Aluminum Shapes, Inc., 339 N.J. Super 412, 428 (App. Div.
2001)). The “standard envisions a ‘sense of outrageous, coercive
and unconscionable requirements.’” Id.
Here, Plaintiff argues that Defendant was tired of
Plaintiff making “waves,” but does not point to evidence to
support that notion. Plaintiff reaches this conclusion by
stating that two of the three options discussed (transfer and
44

severance) were eliminated, leaving Plaintiff with no choice but
to return to an unsafe work place. (Pl. Opp’n at 16-17.) To the
contrary, Sawders commended Plaintiff, in one of the
conversations Plaintiff secretly recorded to document
management’s unfiltered words, for reporting performance lapses:
“part of what you were doing is exactly what everybody should be
doing and they’re not.” (Tr. of 9/10/10 Conversation at 74:1718.) Kindelein also told Plaintiff: “I’m your advocate. Somebody
is out there giving you a hard time, you call me. All right?”
(Id. at 142:1-3.) He added: “You got a lot of people on your
side, okay?” (Id. at 145:17-18.) In another conversation,
Bruecks told Plaintiff: “I want you to feel obviously as open
and as free as you were to continue to identify and raise
issues. . . . And you know we welcome that, and that we want to
make sure that that doesn’t stop.” (Tr. of 9/10/10 Conversation
with Fischer, Kindelein & Bruecks at 98:16-17.)
Plaintiff does not adduce evidence from which a reasonable
jury could find a constructive termination. He does not adduce
evidence to show that a reasonable person would find the work
environment so intolerable that he or she would resign rather
than return to work under the assurances management consistently
gave him. Plaintiff’s evidence does not establish a severe or
pervasive hostile work environment, but rather, viewing the
evidence most favorably to Plaintiff, a handful of pointed
45

comments by co-workers over the course of two years that did not
result in any physical injury to Plaintiff or his property. 12
Plaintiff was never the victim of violence. Even these
encounters did not impair Plaintiff’s ability to do his job, and
management gave clear signals that they continued to support him
and would deal with anyone who tried to hassle him. His coworkers’ behavior, though unwelcoming, was not “outrageous,
coercive and unconscionable” within the meaning of the
constructive discharge doctrine. Shepherd, 174 N.J. at 28.
Plaintiff certainly does not show that Defendant endorsed
harassing behavior or exhibited animus toward Plaintiff. To the
contrary, it is undisputed that Defendant backed Plaintiff by
firing Crowell, accommodating Plaintiff with paid leave,
investigating his allegations, 13 soliciting suggestions from him
about ameliorating the situation, following through on the
suggestion to arrange a transfer for him, pledging their support
of him, promising to discipline or terminate harassing coworkers, and assuring him that changes to the work environment
had been made and more were planned. Sawders described how he

12

Plaintiff does not claim that the emotional or mental toll of
the threats necessitated his employment decision. Rather, he
argues that the workplace was physically unsafe.
13

Plaintiff expressed his belief that the investigator told
Defendant what it wanted to hear, and “not necessarily the
truth.” (Tr. of 9/10/10 Conversation with Fischer, Kindelein &
Bruecks at 93:20-23.)
46

had spoken with every shift and each team leader, and he
explained that he was prepared to enforce rules that previously
had not been enforced. G4S’s attorney explained in a letter to
Plaintiff’s attorney that management “has discussed with Mr.
Fischer that it would not ‘turn him loose’ with his colleagues,
but that it planned to return him to work through a number of
measures designed to supervise and observe the work force around
him, including an escort for a period of time.” [Docket Item 4011 at 47 (marked as D-48 within Def. Ex. C)]. The attorney also
informed Plaintiff’s attorney that “the company will implement a
number of pre-planned measures for Mr. Fischer’s safety and
smooth transition back to his current job.” [Id.]; see also
Fischer dep. at 394:6-11 (admitting that G4S’s attorney
represented to Plaintiff that the company would implement
preplanned measures for Plaintiff’s safety and a smooth
transition back to work).
Management did not ignore suggestions by Plaintiff to
improve the work environment. In Plaintiff’s taped
conversations, Plaintiff declined to provide Defendant with
names of co-workers that continued to concern him, although
Sawders told him that Mizenis, his supervisor who had a history
with Plaintiff, would be placed on a different shift. (Fischer
dep. at 347:13-17.) At oral argument, Plaintiff’s counsel
posited that none of the harassers had been disciplined, but
47

Plaintiff himself expressed ambivalence about Defendant
terminating anyone, fearing the move would make the work
environment less safe. Management repeatedly stated that they
wanted Plaintiff to return to work and assured him that if
anyone harassed him upon his return, the harasser would be
disciplined or terminated. There is no evidence that Defendant
ever disregarded any threat to Plaintiff’s safety or acquiesced
to a pattern of harassment by any of Plaintiff’s co-workers.
There is no evidence that Defendant disapproved of Plaintiff’s
whistleblowing; the record undisputedly shows that his employer
encouraged it.
At Plaintiff’s request, Defendant arranged for Plaintiff’s
transfer to New Hampshire, the nearest G4S facility, but
Plaintiff ultimately declined the transfer because he did not
want to relocate his family, take a pay cut or lose his union
seniority as required by the New Hampshire unit’s collective
bargaining agreement. Defendant rejected Plaintiff’s demand for
an $800,000 severance package, more than ten times his annual
salary. 14 Nothing in the record suggests that Defendant’s offer
of transfer was disingenuous or deliberately unattractive. The
fact that Defendant declined to pay Plaintiff more than 10 times
his annual income in severance does not permit an inference that

14

At oral argument, Plaintiff’s counsel stated Plaintiff earned
approximately $70,000 per year.
48

Defendant retaliated against Plaintiff. Nothing in the record
demonstrates that Plaintiff attempted to negotiate a lower
severance package, when his first demand was rejected.

In sum,

the record does not support Plaintiff’s contention that he was
constructively discharged or that Defendant harbored animus
toward Plaintiff.
Plaintiff’s own statements undercut his contention that his
physical safety was at risk. Although Plaintiff stresses that
the work environment was dangerous because all of his fellow
officers were armed, Plaintiff himself stated to management
prior to his termination that he did not fear that he would be
shot by a co-worker. (See Tr. of 9/09/10 Conversation at 103:1516.) Plaintiff’s counsel reiterated this admission at oral
argument. No one ever threatened to beat Plaintiff up. (See Tr.
of 9/10/10 Conversation with Fischer, Kindelein & Bruecks at
100:10-14 (“Did anybody say they’re going to beat me up or
anything that -- like that? No . . .”).) His own words to
management evince a fear of a hypothetical possibility -- not a
likelihood, not a certainty -- that his physical safety was at
risk. (See Tr. of 9/10/10 Conversation with Fischer, Kindelein &
Sawders at 3:12-17 (“somebody . . . could possibly do something
physically”); id. (“something like that could possibly happen to
me”).)

49

The evidence may support a finding of Plaintiff’s
subjective fear, but it does not substantiate that such a fear
was reasonable. The only physical gesture ever directed at
Plaintiff was a co-worker kicking his chair at a morning
meeting. That co-worker later apologized and, eventually, left
the work force. Plaintiff received, at most, a handful of veiled
threats from co-workers spread over two years prior to his being
placed on leave. Most of the threats were nonspecific and not
spoken directly to Plaintiff -- “Fischer is going to get his,”
for example, which was a message Perdue received on his cell
phone -- and the vast majority of them were made prior to
Plaintiff going on leave. Some of the friction came not from
words but from a type of shunning, as when some officers would
leave the lunchroom. At oral argument, Plaintiff’s counsel
identified only one statement made to Plaintiff in the months
after he left the facility, which indicated that Plaintiff would
be “challenged” upon his return. Plaintiff testified that the
“worst” statement from one officer was, “If we were in the
military we would pay you a visit at night.” (Fischer dep. at
160:16-161:2.) Plaintiff presents no evidence of threats to his
personal safety, no threats of any specificity against his
person or property, no harassing phone calls or letters or notes
or photos, no evidence that his co-workers acted violently
against him, no pledges of violence against him, and no evidence
50

of any damage or injury to his person or property in the
entirety of his employment at the nuclear facility. Plaintiff
never experienced any physical altercation aside from his chair
being kicked in 2008, and no one ever threatened to beat him up.
His fears of physical harm, though perhaps sincerely held, are
not reasonably founded on the present record.
None of the evidence discussed above permits an inference
that Plaintiff’s disclosure of Crowell’s intoxicated state was a
substantial or determinative factor in Plaintiff’s termination.
See Donofry v. Autotote Sys., Inc., 350 N.J. Super. at 273. The
record does not support a finding of likely physical harm to
Plaintiff upon his return to work. No reasonable factfinder
could conclude that the comments and text messages Plaintiff’s
co-workers made and sent were so outrageous, coercive, or
unconscionable that a reasonable person would find the work
environment to be intolerable. More importantly, there is simply
no evidence that the Defendant or its managers condoned,
encouraged or ignored the comments of Plaintiff’s co-workers,
nor that Defendant bore any animus against Plaintiff as a result
of any CEPA-protected activity. Based on this record, a
reasonable jury could only conclude that Plaintiff abandoned his
job, not that he was constructively terminated by his employer.
Therefore, Plaintiff fails to establish causation, and Defendant
is entitled to summary judgment on the CEPA claim.
51

Pretext
Even if Plaintiff could establish a prima facie case,
including causation, Plaintiff fails to “demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them ‘unworthy of credence.’” Burton v. Teleflex Inc., 707
F.3d 417, 427 (3d Cir. 2013).
Defendant argues in its papers that Plaintiff abandoned his
job after being instructed to return to work. At oral argument,
Defendant was willing to concede, for purposes of this motion,
that Defendant terminated Plaintiff for the legitimate,
nondiscriminatory reason that Plaintiff was a “no call, no show”
for work on September 29 and October 4, 2010. In response,
Plaintiff argues that the evidence suggests
that he decided not to return to work because he feared
for his safety in an environment where his coworkers
carry automatic weapons and management has shown no
willingness to resolve the problems and that his
employer made no real effort to reintroduce him into the
workforce. The same facts that support the causal
connection between Mr. Fischer’s whistleblowing activity
and his termination, as detailed above, support the
proposition that the reason given for his termination
was pretextual.
(Pl. Opp’n at 17-18.)
Plaintiff’s case for pretext relies on the assertion that
Defendant showed “no willingness to resolve the problems” and

52

“made no real effort to reintroduce him into the workforce.” 15
(Id. at 17.) Plaintiff contends that Defendant did not take
seriously what he calls “an apparent investigation.” (Id. at
15.)
In his meeting of September 9, 2010, Mr. Fischer . . .
was confronted inexplicably by Bob Kindelein with the
assertion
that
he
(Mr.
Fischer)
had
told
the
investigator that he had “made all that up,” meaning his
concerns. (CMF, para. 46) This trivialization of his
concerns only solidified the plaintiff’s belief that he
was being marginalized by not only his co-workers but
also by management. (CMF, para. 47) Furthermore, despite
there clearly being a report generated as a result of
the four-month-long investigation, as evidence by Mr.
Sawders own comment, id. at para. 48, Mr. Sawders failed
to take matter seriously enough to even remember whether
he ever saw a report. (CMF, para. 48)
(Pl. Opp’n at 15-16.)
Plaintiff mischaracterizes the conversation with Kindelein.
In the recorded conversation, Kindelein sought to confirm both
whether Plaintiff told the investigator whether he had found
Katie Harris asleep on the job and “to clarify was she or wasn’t
she.” (Def. Ex. F at 6:10-17.) In the excerpt cited by
Plaintiff, Kindelein did not accuse Plaintiff of making up his
safety concerns, as Plaintiff suggests. The exchange unfolded:
MR. KINDILIEN [sic]: . . . when you were talking to Domby
[the investigator], you did not allege that she was
sleeping.
15

The Court has already discussed how Plaintiff admitted he did
not fear that he would be shot and no one threatened to beat him
up, and so the fact that Plaintiff’s “coworkers carry automatic
weapons” is not evidence that Plaintiff’s termination was
pretextual.
53

MR. FISCHER: No.
MR. KINDILIEN [sic]: Okay. Well, that’s what I’m trying
to establish. Not whether you made it up or not. I threw
that out there. . . . [T]he big thing is, you did not
openly allege that you caught her sleeping.
MR. FISCHER: Absolutely not.
MR. KINDILIEN [sic]: . . . did you ever say to Joe Kelly
“Yeah, I shut her up, because I said I would come out
with what I know.”?
MR. FISCHER: False. Completely fal -- on my God, this is
-- this is -- this is a -- this is a union retaliation.
. . .
MR. KINDILIEN [sic]: I don’t know -- I don’t know . . .
All I know is . . . I got to look into it.
MR. FISCHER: Okay.
(Id. at 10:16-22, 11:4-24.) Nowhere does Kindelein trivialize
Plaintiff’s safety concerns. Rather, Kindelein told Plaintiff
that he was Plaintiff’s “advocate” and that “there’s going to be
a lot of SCWE things addressed,” and urged Plaintiff to contact
him if his co-workers bothered him upon his return to work. (Tr.
of 9/10/10 Conversation at 69:2, 72:17-18, 74:13-14, 142:1-3,
145:17-18.)
Plaintiff next argues that Sawders “failed to take matter
seriously enough to even remember whether he ever saw a report.”
(Pl. Opp’n at 16.) Plaintiff cites the following exchange in
Sawders’s deposition, taken January 16, 2014, nearly four years
after Crowell was fired and more than three years after
Plaintiff was terminated:

54

Q: During the time that he was in that administrative
position did he report any such issues to you?
A: I don’t remember that either.
Q: Now, you said that you instigated or initiated an
investigation that was essentially conducted by a third
party; do you know the result of that investigation?
A: I don’t. If it was ever made available to me, I don’t
remember.
Q: Do you recall if a written report was generated as a
result of that investigation?
A: I’m 99.9 percent sure there was, but I don’t recall
seeing it.
(Sawders dep. at 31:3-16.) Throughout Sawders’s deposition, he
states repeatedly that he cannot presently recall certain
details about the incidents in question, due to the passage of
time. As he explained: “I don’t remember . . . because I’ve been
at several plants . . . , but I can no longer remember if it was
Salem Hope Creek, South Texas, Monticello, etc. So I’m sorry, I
can’t answer either one of those questions because I just don’t
remember.” (Id. at 15:7-12.) However, at the time of the events
in question, as documented in one of Plaintiff’s own recordings,
Sawders told Plaintiff, “I want to make sure you know that I’m
aware of the issues raised. Obviously, I’ve seen the
investigation.” (Tr. of 9/09/10 Conversation at 80:20-81:4.)
Sawders’s inability to recall the investigation report four
years later does little, if anything, to undermine the
undisputable fact that Sawders expressed awareness of the
55

investigation in Plaintiff’s own cotemporaneous recordings.
Sawders also undisputedly discussed Plaintiff’s safety concerns
more generally and possible solutions to the problem. Plaintiff
points to no evidence that demonstrates that Defendant’s pledges
of support and safety are “unworthy of credence.” Burton, 707
F.3d at 427.
Defendant does not rely on the investigation report as a
basis for summary judgment. The report is not in evidence and
was not requested by Plaintiff in discovery. Whether Domby’s
report contained misleading or incorrect information about some
of Plaintiff’s alleged conduct, or whether Sawders recalls
seeing the report, does nothing to undermine Defendant’s actual
responses to Plaintiff’s safety concerns and Defendant’s
unequivocal expressions of support and protection upon
Plaintiff’s return to work.
Plaintiff, through his attorney, informed Defendant that he
would not be returning to work. (Def. Ex. C [Docket Item 40-11
at 50].) Defendant nonetheless extended the deadlines to report
by one week. Defendant terminated Plaintiff for not reporting to
work. No reasonable jury could conclude, on the present record,
that Defendant’s purported reason for terminating Plaintiff was
pretext for getting rid of Plaintiff because he reported alleged
safety violations. Therefore, even if Plaintiff has established
a prima facie case of retaliation, his CEPA claim fails as a
56

matter of law, and Defendant is entitled to summary judgment as
a matter of law.
V.

Conclusion
The Court will grant Defendant’s motion for summary

judgment because, to the extent that Plaintiff’s claim is based
on his disclosure of Officer Crowell’s intoxicated state,
Plaintiff has not established a causal link between his
disclosure and his termination. Even if he can establish a
causal link, he has not met his burden of showing that his
termination was pretextual for retaliatory animus. To the extent
Plaintiff’s claim is based on any other disclosures, Plaintiff’s
claim fails because he cannot establish (1) that those
disclosures constitute whistleblowing activity within the
meaning of CEPA, and/or (2) that he held an objectively
reasonable belief that the complained-of conduct violated any
law, rule, regulation or clear mandate of public policy. An
accompanying Order will be entered.

June 25, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

57