BORGESE v. DEAN FOOD COMPANY et al
OPINION. Signed by Judge Renee Marie Bumb on 6/26/2017. (dmr)
[Dkt. No. 58]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 15-cv-2907 (RMB/KMW)
DEAN FOODS COMPANY; WHITE WAVE
FOODS and/or JOHN DOE EMPLOYER,
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court on a motion for summary
judgment by Defendant WWF Operating Company (“WhiteWave”)1 with
regard to a cause of action by Plaintiff John Borgese
(“Plaintiff”) under the New Jersey Conscientious Employee
Protection Act (“CEPA”).
N.J.S.A. 34:19-1, et seq.
reasons set forth below, the Court determines that Plaintiff is
unable to establish the causation element of a prima facie CEPA
claim, and thus WhiteWave is entitled to summary judgment.
Defendant Dean Foods Company was voluntarily dismissed from
this action prior to removal to this Court. (Notice of Removal,
Ex. C) [Dkt. No. 1]. WWF Operating Company is currently listed
on the docket as White Wave Foods.
STATEMENT OF FACTS
Plaintiff John Borgese was employed at WhiteWave, a
manufacturer of non-dairy milks, as Chief Engineer of its
Bridgeton, New Jersey plant (“the Plant”) from March 2007 to
February 2, 2015.
(Def.’s Statement of Undisputed Material Facts
(“DSUMF”) & Pl.’s Response to DSUMF (“PSOF”) at ¶¶ 1, 12, 86.)
New Jersey law requires boiler operators to hold different levels
of licenses, or seals.
(Id. ¶ 4.)
Plaintiff holds a red seal,
which permitted him to serve as Chief Engineer of the Plant and
oversee the boiler rooms.
(Bodrog Dep. at 38:11-12.)
operates 24 hours a day, seven days a week, and uses three
boilers in total.
(DSUMF & PSOF ¶¶ 2, 92.)
The boilers are
divided in rooms, with two boilers in one room and a third in
(Id. ¶ 9.)
The total steam production requires
the designation of a Chief Engineer with a certain level seal,
which Plaintiff holds.
Prior to applying for the position at WhiteWave, Plaintiff
met with the then-Maintenance Manager of the Plant, Dave Boyce,
to discuss the position.
(Id. ¶ 13.)
During this conversation,
Plaintiff informed Mr. Boyce of his position as a full-time
corrections officer at South Woods State Prison (“the Prison”)
Although Plaintiff disputes Paragraph 9 of the DSUMF, he does
so only on the ground that the paragraph terms one of the three
boilers as a “backup” boiler. Plaintiff does not appear to
dispute the number.
with a schedule of 10:00 p.m. to 6:00 a.m.
(Id. ¶ 14.)
According to Plaintiff, the two men agreed that he could arrive
for work at WhiteWave after the end of his shift at the Prison
and work a shift from 6:30AM to 2:30PM.
(Id. ¶¶ 15-173.)
In 2009, Plaintiff commenced a series of complaints
regarding boiler compliance issues that are at the center of the
Plaintiff noted that WhiteWave was violating a
requirement for high pressure boilers that operators be within
sight and sound of the machinery at all times.
(Id. ¶¶ 23, 394.)
Plaintiff claims that an altercation he had with a production
supervisor in early 2009 was in response to his recent complaints
about supervision compliance with boiler regulations.
In a March 10, 2009 letter to WhiteWave Human Resources,
Plaintiff’s attorney noted the altercation and that his client
heard “rumors” of possible changes that would “negatively effect
[sic] him in his position.”
(Id. ¶ 19; Def.’s Br. in Support of
Summ. J. (“Def. Br.”), Ex. E.)
Specifically, Plaintiff heard
rumors from “somebody that overheard it from somebody else” of
hour changes to a 2/2/35 schedule with 12-hour shifts.
Plaintiff generally disputes these paragraphs of the DSUMF,
however does not dispute the fact that Plaintiff arrived for work
at these times.
4 Plaintiff’s response to Paragraph 39 of the DSUMF does not show
a genuine dispute as to the facts contained therein.
5 “A 2/2/3 schedule means an employee works two days, has two
days off, and works three days, followed by a reverse of the
PSOF at ¶ 20.)
One former WhiteWave employee testified that the
compliance complaints caused friction between Plaintiff and the
company, and that the manager of the Plant, John Bodrog, tried to
change Plaintiff’s schedule as a result.
(Murphy Dep. at 50:17-
While the March 10, 2009 letter did not explicitly reference
the compliance complaints as the source of alleged retaliation,
Plaintiff argues that the connection was implied and consistent
with Plaintiffs’ numerous compliance complaints noted in the
(PSOF ¶ 22.)
Despite Plaintiff’s concern about these
“rumors,” his schedule did not change in 2009.
(DSUMF & PSOF at
Plaintiff next brought up compliance issues in a February
17, 2010 letter sent to then-Maintenance Manager Tom Powers and
copied to Human Resources.
In the letter, Plaintiff noted that
compliance with high pressure boiler regulations is mandatory per
(Id. ¶ 23.)
About a week later, on
February 23, 2010, Plaintiff wrote to Mr. Bodrog to note a
“violation/integrity check” and an alleged threat to change
(Id. ¶ 25.)
Although not explicit in his letter to Mr. Bodrog, Plaintiff
claims he complained because Mr. Powers planned to implement a
schedule in which the employee has two days off, works two days,
and has three days off.” (Perez Dep. 39:14-19.)
2/2/3 schedule, which would be untenable given Plaintiff’s shifts
at the Prison.
(Id. ¶¶ 26-28.)
Further, Plaintiff contended
that the anticipated shift to a 2/2/3 structure would breach his
agreement with WhiteWave for a specific schedule.
(Id. ¶ 30.)
At some point shortly after Plaintiff’s February 17, 2010
letter, WhiteWave did implement the 2/2/3 schedule.
On March 8,
2010, Plaintiff’s attorney, Robert S. Greenberg, Esq., wrote to
WhiteWave, noting scheduling and compliance issues and that
Plaintiff had informed him vaguely that job changes at WhiteWave
were not in compliance with N.J.A.C 12:90-3.10.
(Id. ¶¶ 31-32.)
After working the 2/2/3 schedule for a few months, Plaintiff
began splitting the 12-hour shift with another boiler operator,
Chester Peterson, so that Plaintiff worked from just after 6:00AM
to approximately 12:00PM.
(Id. ¶¶ 33-35.)
The record is devoid
of any evidence indicating that WhiteWave disapproved of this
shift-splitting or that Plaintiff was unable to make the
On June 10, 2010, an inspector from WhiteWave’s insurance
company conducted an annual inspection of the Plant.
from Anthony Fragale to John Borgese, June 14, 2010, Def. Br.,
In a June 14, 2010 letter to Plaintiff, in his capacity
as Chief Engineer, the inspector cited a compliance issue with
N.J.A.C. 12:90-3.10, noting,
This location has 3 high pressure boilers
located in 2 separate boiler rooms. At any
time during production boilers in both boiler
rooms can be placed into service. This would
require at least 2 operators on duty, one per
boiler room. At present there is only one
operator on duty during any shift.
WhiteWave was given 60 days to come into compliance.
(DSUMF & PSOF at ¶ 40.)
Plaintiff had previously operated two
boilers, one in each room, simultaneously without calling in a
second operator, thus violating the regulation.
(Id. ¶ 41.)
Plaintiff contends that since he was not in management he was not
allowed to call in additional operators.
(PSOF ¶ 41.)
Plaintiff claims that he spoke about compliance issues to
many managers, and that he had numerous conversations about these
issues with Mr. Bodrog over a three-year period, from 2007 to
(DSUMF & PSOF at ¶¶ 46-47.)
One such conversation with
Mr. Bodrog and Mr. Powers in 2010 resulted in two state
inspectors coming to the plant to explain the law.
The state inspectors noted that boiler engineers
must be within sight and sound of all high-pressure equipment
that they are operating.
(Id. at 143:20-23, 144:5-10.)
purposes of the Plant, according to Plaintiff, this means that in
order to operate Boiler 3 in conjunction with Boilers 1 or 2,
which are in a different room, there would need to be two
(Id. at 143:24, 144:1-2.)
WhiteWave notes that when
such a situation arose, it tried its best to call in a second
operator, and that Plaintiff is unable to recount a time when he
operated boilers in two different rooms simultaneously after the
inspectors came to the Plant in 2010.
Borgese Dep. at 145:19-146:4.)
(DSUMF & PSOF at ¶ 44;
After 2010, Plaintiff failed to
send any additional letters regarding compliance to the company
because, in his words, “everybody that was involved was also
already aware of it, the compliance issues.”
(DSUMF & PSOF at ¶
Other than Plaintiff’s already-lodged concerns about boiler
regulation compliance at WhiteWave, Plaintiff appears to have
worked without issue over the next four years.
The next issue,
according to Plaintiff, arose in May 2014, when Mr. Peterson went
on medical leave, rendering Plaintiff unable to split his 12-hour
(Id. ¶ 49.)
Following Mr. Peterson’s departure,
Plaintiff and the other operators began to cover his shifts,
deviating from the 2/2/3 schedule.
(Id. ¶ 50.)
demanding work schedule caused Plaintiff to experience medical
issues, including heart palpitations.6
(Id. ¶ 51; Borgese Dep.
Eventually, in late July 2014, Plaintiff’s
physician recommended he take two weeks of leave.
(Id. ¶ 52.)
In the PSOF, Plaintiff clarifies that his medical issues arose
from the “emotional and medical impact” of WhiteWave failing to
properly cover the monitoring of the boilers. (PSOF at ¶ 51.)
The Court is unsure this genuinely disputes the issue, but as it
must, considers the disputed facts in the light most favorable to
Plaintiff ultimately did not follow this recommendation, but
satisfied his physician by having a heart ultrasound over the
(Id. ¶ 53.)
It was during this time that Plaintiff began correspondence
with WhiteWave Human Resources Manager, Mayra Perez.
On July 27,
2014, Plaintiff sent Ms. Perez an email complaining that he had
worked nineteen days in a row.
(Id. ¶ 54.)
Ms. Perez forwarded
the correspondence to Mr. Bodrog and then-Maintenance Manager
Ralph Eskilson, identifying the number of consecutive days as an
(Id. ¶¶ 55-56.)
Ms. Perez also indicated that changing
Plaintiff’s schedule to a 2/2/3 would provide days off.
In his same-day response to Ms. Perez, Mr. Bodrog
inquired whether the consecutive days included just WhiteWave or
if they were between both of Plaintiff’s jobs, including with the
(Id. ¶ 597.)
Mr. Bodrog also wrote, “We now need to put
a stake in the ground and go forward with the 223 schedule.”
(Email from John Bodrog to Mayra Perez, July 28, 2014, Def. Br.,
According to Mr. Bodrog, a shift to that structure would
align the boiler operators’ schedules with those of the rest of
the Plant, which he testified had operated on a 2/2/3 schedule
Plaintiff argues that this factual assertion put forth by
WhiteWave “cannot be understood.” (PSOF ¶ 59.) Plaintiff has
not genuinely disputed that Mr. Bodrog asked whether Plaintiff’s
report of 19 days of consecutive work applied to Plaintiff’s work
at WhiteWave or Plaintiff’s work at WhiteWave and the Prison.
since April 2006.
(DSUMF & PSOF ¶¶ 57, 618; Bodrog Dep. at
Plaintiff followed up on the scheduling matter on August 7,
2014, when he exchanged emails with Ms. Perez and Mr. Eskilson.
(DSUMF & PSOF ¶ 62.)
He again communicated via email with Ms.
Perez on August 18, 2014, noting that he planned to write her
about “scheduling,compliance,ethics [sic] and other related
(Id. ¶ 63.)
Plaintiff claims that he continued to
bring up concerns about boiler compliance during this period.
(Id. ¶ 64.)
Following this correspondence, scheduling changes occurred.
In September 2014, just weeks after Mr. Bodrog’s email to Ms.
Perez encouraging a 2/2/3 schedule, the new scheduling structure
was implemented for all boiler operators.
(Id. ¶ 65.)
change required Plaintiff to arrive at 6:00 a.m. and work until
6:15 p.m., making a total of approximately 20 hours of work each
day between his two jobs.
(Id. ¶¶ 65-66.)
Just a few weeks into
Although Plaintiff purports to deny Paragraph 61 of the DSUMF,
the PSOF does not address the allegation contained therein which
states: “Because the rest of the plant ran on a 2/2/3 schedule,
with the day shift starting at 6:00AM and ending at 6:15PM, the
change in shift structure would place the boiler operators on the
same schedule as the other employees at the plant.” (DSUMF ¶
61.) In response, Plaintiff only contends that “It is obvious
from the record that the boiler engineers were not on and did not
have to be on a 12 hour shift, 223 schedule.” (PSOF ¶ 61.)
Indeed, Plaintiff admits, at least, that a shift to a 2/2/3
schedule would cause boiler engineers to match up with the
maintenance department. (Id.)
this new schedule, on October 1, 2014, Plaintiff wrote Ms. Perez,
Mr. Bodrog, and Mr. Eskilson to express discontent with his 6:00
a.m. start time and that the new schedule was having a negative
impact on him.
(Id. ¶¶ 67-68.)
Plaintiff also noted that he
wished to return to his 6:30 a.m. to 2:30 a.m. schedule.
Shortly after the October 1, 2014 email exchange, Plaintiff
called out of work from October 6, 2014 to October 9, 2014; then,
on October 10, 2014, Plaintiff notified WhiteWave that he sought
medical leave under the Family and Medical Leave Act for severe
(Id. ¶¶ 70-71.)
On October 13, 2014, Ms. Perez
forwarded Plaintiff the proper paperwork, which he returned in a
(Id. ¶¶ 71-729.) The paperwork notes that if the
leave is approved, the starting date is October 6, 2014, or the
first date Plaintiff called out of work.
13, 2014, Def. Br., Ex. P.)
(FMLA Paperwork, Oct.
Plaintiff’s FMLA request was
approved on November 3, 2014, and Ms. Perez notified him of the
approval via email on November 17, 2014.
(DSUMF & PSOF at ¶¶
On January 5, 2015, Ms. Perez notified Plaintiff via
email that his FMLA leave had been expired as of December 29,
Plaintiff does not dispute that the paperwork was returned in a
10 Plaintiff concedes that he was advised of his approval on
November 17, 2014.
(Id. ¶¶ 7511-76.)
Plaintiff seems to take issue with
notice of his delinquent return arriving days after his date to
return, and he contends that had he been notified of the
exhaustion of his FMLA leave prior to the date of expiration, he
would have sought medical clearance to return to work before the
(PSOF at ¶ 77.)
physician cleared him to return to work on January 15, 2015, yet
Plaintiff failed to return to the plant on that date, as well.
(Id. ¶¶ 77-78.)
When Plaintiff did not return to work on January 15, 2015,
WhiteWave designated a new Chief Engineer with proper licensing
on the day shift.
(Id. ¶¶ 78-79.)
notified the State of New Jersey of the change in personnel, as
required by law.
(Id. ¶ 79.)
As the second day shift had been
filled by another employee, WhiteWave offered Plaintiff a night
shift as a boiler operator.
(Id. ¶¶ 82-83.)
held his position at the Prison and thus was unable or unwilling
to work a night shift at the Plant.
(Id. ¶ 84.)
failed to return to work from his FMLA leave, Plaintiff’s
employment at WhiteWave was terminated on February 2, 2015.
Plaintiff disputes that he had exhausted his leave on this
date, but does not dispute that he was informed he had exhausted
his leave on this date.
Plaintiff brings the present action under the New Jersey
Conscientious Employee Protection Act (“CEPA”), alleging that he
was constructively discharged as a result of his series of
Plaintiff commenced the action on March
13, 2015 against WhiteWave in the Superior Court of New Jersey,
Cumberland County, Law Division.
On April 23, 2015, WhiteWave
removed the action to this Court pursuant to Federal Rules of
Civil Procedure §§ 1332, 1441, 1446(d).
28 U.S.C. §§ 1332, 1441,
On October 17, 2016, WhiteWave filed a motion for
summary judgment, which the Court will now address.
STANDARD OF REVIEW
Summary judgment shall be granted 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.
A fact is “material” if it will “affect the outcome of
the suit under the governing law . . . .”
Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty
A dispute is “genuine” if
it could lead a “reasonable jury [to] return a verdict for the
When deciding the existence of a genuine
dispute of material fact, a court's role is not to weigh the
evidence; all reasonable “inferences, doubts, and issues of
credibility should be resolved against the moving party.”
v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
However, a mere “scintilla of evidence,” without more, will not
give rise to a genuine dispute for trial.
Anderson, 477 U.S. at
252. Further, a court does not have to adopt the version of facts
asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
Scott v. Harris, 550 U.S. 373, 380 (2007).
face of such evidence, summary judgment is still appropriate
“where the record . . . could not lead a rational trier of fact
to find for the nonmoving party . . . .”
Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant's burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d
Cir. 1995); Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)
(citing Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d
199, 228 (3d Cir. 2009)) (“[S]peculation and conjecture may not
defeat summary judgment.”).
The issue in this summary judgment motion is whether
Plaintiff has proffered enough evidence to state a prima facie
claim under CEPA, and if so, whether a reasonable factfinder
could determine that WhiteWave’s stated reason for Plaintiff’s
termination is pretextual.
When evaluating claims under CEPA, courts in New Jersey
employ the familiar burden-shifting analysis established for
discrimination claims in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
See Turner v. N.J. State Police, No. 08-5163
(KM) (JBC), 2017 U.S. Dist. LEXIS 48036, at *29 (D.N.J. Mar. 29,
2017) (citing Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J.
67, 90 (2012)).
Under this analysis, once a plaintiff has
established a prima facie case, the burden shifts to the
defendant to provide a legitimate, non-retaliatory reason for the
adverse employment action.
Id. at *30.
If the defendant is able
to proffer such a reason, then “the presumption of retaliatory
discharge created by the prima facie case disappears and the
burden shifts back to the [employee].’”
Id. (quoting Blackburn
v. United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir. 1999)).
The plaintiff then bears the burden of persuasion to convince a
reasonable fact-finder that the reason provided by the defendant
was a pretext for retaliation.
For purposes of this case, WhiteWave seeks summary judgment
because, it argues, Plaintiff is unable to demonstrate causation
and thus establish a prima facie CEPA claim.
argues, even if Plaintiff can show a prima facie claim, his claim
cannot survive the McDonnell Douglas burden-shifting analysis to
show that Defendant’s decision to terminate Plaintiff for his
failure to return from FMLA leave is a pretext for retaliation
against him due to his compliance concerns. The Court holds that
Plaintiff is unable to meet his burden for a prima facie claim,
and therefore the Court need not reach the issue of pretext.
To survive a motion for summary judgment, a plaintiff must
fulfill all four elements of a prima facie CEPA claim.
show that: (1) he reasonably believed the defendant engaged in
conduct or practices that violated a law or regulation; (2) he
performed whistleblowing activity protected under CEPA; (3) he
suffered an adverse employment action; and (4) there exists a
causal connection between the protected activity and the adverse
Bowen v. Parking Auth. of Camden, No. 00-5765 (JBS),
2003 U.S. Dist. LEXIS 16305, at *62 (D.N.J. Sep. 18, 2003)
(citing Blackburn v. United States, 179 F.3d 81, 92 (3d Cir.
Here, both parties agree that Plaintiff has shown enough
evidence to satisfy the first three elements of a prima facie
Therefore, for purposes of deciding if summary
judgment is appropriate, this Court evaluates only the causation
element of the CEPA claim.
A plaintiff may show causation “through temporal proximity
between the protected activity and the adverse employment action;
an intervening pattern of antagonism; or the evidence taken as a
Barton v. MHM Corr. Servs. Inc., 454 F. App’x 74, 78-79
(3d Cir. 2011) (citing Farrell v. Planters Lifesavers Co., 206
F.3d 271, 280-81 (3d Cir. 2000).
Here, Plaintiff does not rely
upon temporal proximity, and instead seeks to put forth
sufficient evidence to allow an inference of causation through a
pattern of antagonism or the evidence in its totality.
As an initial matter, the Court notes that Plaintiff has not
adduced any direct evidence of retaliation, thus the Court must
determine if the circumstantial evidence justifies an inference.
See Bocobo v. Radiology Consultants of S. Jersey, P.A., No. 021697 (JEI), 2005 U.S. Dist. LEXIS 29321 at *13-14, aff’d, 477
Fed. App’x 890 (3d Cir. 2012) (citing Zaffuto v. Wal-Mart Stores,
Inc., 130 Fed. App’x 556, 569 (3d Cir. 2005); (Pl. Br. at 4146.).
Plaintiff points to a variety of circumstantial evidence
that, Plaintiff argues, demonstrates a pattern of antagonism or
retaliatory animus that supports an inference of causation.
evidence includes the consistency of Plaintiff’s sole complaint,
Mr. Murphy’s testimony that “tension” existed between the
parties, the pecuniary interests of WhiteWave to get rid of a
“complaining” employee, and scheduling changes as retaliation for
(Pl. Br. at 43-47.)
The Court will
address each in turn, but ultimately determines that none of
these – even taken together – establishes causation to survive
Plaintiff first attempts to show a pattern of antagonism by
referencing his many compliance complaints throughout his
employment at WhiteWave.
(Pl. Br. at 44-45.)
Defendant, in its
brief, attacks this argument by relying on the District Court’s
and Third Circuit’s analyses in Bocobo.
In Bocobo, the court
determined that the plaintiff radiologist could not demonstrate a
pattern of antagonism by simply pointing to a string of
complaints over a 15-year period.
29321 at *15.
Bocobo, 2005 U.S. Dist. LEXIS
As the court noted, “Bocobo provides no evidence
explaining why, after 15 years, [the employer] was finally
motivated by those particular [regulatory compliance] complaints
to terminate him.”
Id. at *16.
Rather, the court observed, the
plaintiff’s termination resulted from his difficult personality.
The court granted summary judgment and that decision was
affirmed by the Third Circuit.
Bocobo v. Radiology Consultants
of S. Jersey, P.A., 477 F. App’x 890, 903 (3d Cir. 2012).
Here, Plaintiff strains to find a distinction between his
predicament and that of Mr. Bocobo.
Plaintiff argues that unlike
in Bocobo, where the plaintiff failed to identify specific
regulations he complained were being violated, the present case
focuses on one consistent compliance complaint over the course of
(Pl. Br. at 44.)
Although it is true that the
plaintiff in Bocobo complained about more than one thing over
fifteen years, 2005 U.S. Dist. LEXIS 29321 at *15, the Court
views this distinction as irrelevant.
Nowhere in Bocobo did
either court opine on the specificity or multitude of the
plaintiff’s complaints, instead the courts hinged their analysis
on the fact that an inference of causation is undermined when an
oft-complaining employee engaged in such conduct for years
In the end, Plaintiff fails to effectively
distinguish the persuasive reasoning of Bocobo.
The Court finds the similarities between Bocobo and this
Plaintiff has not submitted any evidence or
even reasoning to explain why WhiteWave would treat a compliance
complaint in 2014 different than it did in 2009 or 2010.
a fair reading of the record is that WhiteWave did not view the
potential boiler compliance issue with the same alarm that
Moreover, and notably, Plaintiff cannot recall an
incident where he operated two boilers at once after the
insurance inspector noted the issue in 2010.
Thus, the Court
determines that there is not sufficient evidence in the record to
determine causation based on Plaintiff’s complaints over the
Simply put, Plaintiff “provides no evidence explaining
why, after [four] years, [WhiteWave] was finally motivated by
those particular  complaints to terminate him.”
U.S. Dist. LEXIS 29321 at *16.
Plaintiff also argues that a pattern of antagonism is
demonstrated through the “friction” present in his relationship
(Pl. Br. at 45.)
Plaintiff relies upon the
testimony of Harmon Murphy to substantiate this proposition.
Murphy worked at WhiteWave as a boiler engineer from 2011 to
(Murphy Dep. 51:14-16.)
While training Mr. Murphy on
boiler compliance, Plaintiff mentioned that he had previously
complained to Mr. Bodrog about “sight and sound” violations.
(Id. at 49:9-22.)
According to Mr. Murphy, these previous
complaints caused friction between Plaintiff and Whitewave:
Q: You mentioned that Mr. Borgese had been
treated differently after he complained?
A: Yeah, you could tell there was a change in
Q: Tell me about that. How was there a change
in the atmosphere?
A: You could just tell by scheduling and
because they always kind of worked with him
and then you could tell that they were moving
toward having all engineers be maintenance
(Id. at 50:17-51:2.)
According to Plaintiff, Mr. Murphy’s
testimony serves as sufficient evidence of a pattern of
(Pl. Br. at 45.)
The Court disagrees.
While Mr. Murphy may have sensed tension “in the atmosphere”
between the parties, other parts of his testimony undermine
Plaintiff’s reliance on it.
Importantly, Mr. Murphy did not ever
witness Plaintiff complain to management or interact with
management on the issue of compliance:
Q: Did you ever actually see him complain or
hear [Mr. Borgese] complain, yourself, to Mr.
A: I’ve seen where they have conversations,
but not where I can hear he had a
Q: You would just see them talking to each
Q: You don’t know what they were talking
(Id. at 50:5-16.)
Without overhearing the interactions between
Plaintiff and management in 2011 and 2012, Mr. Murphy’s apparent
feeling of friction seems to stem from Plaintiff’s own
description of previous events that happened prior to Mr.
Murphy’s employment with WhiteWave and relayed to him by
Moreover, even accepting the foundation of his
testimony of this friction in the air, Mr. Murphy did not cite
any instance in which he witnessed WhiteWave retaliating or
attempting to retaliate against Plaintiff.
When describing how
he perceived WhiteWave to be retaliating against Plaintiff
through shift changes, Mr. Murphy could not isolate Plaintiff’s
treatment from broader business decisions:
Q: And how did Mr. Borgese’s schedule change
in the time you worked with him?
A: Well, I think before they had him working
eight hours and then they was [sic] trying to
convert him to 12 and it was all kind of
Q: And what year was that that they were
A: In between that time I guess of – between
’11 and until the time I left.
Q: So in the ’11 to ’12 range?
Q: And were they trying to change anybody
else’s shift during that time?
A: What do you mean trying to change –
Q: Well, you mentioned that they were trying
to move him from an eight hour to a 12 hour –
A: Well, they were trying to change us up to
12 hours and they knew he couldn’t
accommodate that because of the hours that he
worked at the other job.
(Id. at 51:6-52:2.)
Essentially, Mr. Murphy contends that the
friction was evidenced through scheduling decisions affecting all
Other than the fact that Mr. Murphy believes
WhiteWave was aware of the work schedule for his second job, Mr.
Murphy provides no testimony from which it could be determined
that the shift change was a punishment for Plaintiff’s
Mr. Murphy testified about Plaintiff’s compliance
complaints on one hand and the purportedly punitive schedule
change on the other, but he provides no evidence that connects
the dots between the two occurrences.
Allegations of unspecified
“friction” in the air simply do not connect the dots because they
are based on conversations that Mr. Murphy admits he did not even
Moreover, Mr. Murphy’s unsubstantiated allegation that
WhiteWave undertook a position-wide scheduling change with the
specific purpose to punish Plaintiff by scheduling him for shifts
“they knew he couldn’t accommodate” is directly contradicted by
the fact that WhiteWave accommodated Plaintiff’s scheduling needs
by allowing him to split his shift with Mr. Peterson, an
arrangement that permitted Plaintiff to continue working two jobs
for years until Mr. Peterson left.
(DSUMF & PSOF at ¶¶ 33-35.)
Further, as noted by Plaintiff’s own Human Resources expert,
Plaintiff was viewed as a model employee and received no negative
employment reviews while employed at WhiteWave, even at the times
he was complaining and “friction” allegedly existed.
Report of Dawn A. Haag-Hatterer); cf. Robinson v. Se. Pa. Transp.
Auth., 982 F.2d 892, 895 (3d Cir. 1993) (finding a pattern of
antagonism through the “constant barrage of written and verbal
warnings” filed against the plaintiff by defendant employer).
Thus, even viewing Mr. Murphy’s deposition testimony in the light
most favorable to Plaintiff, the Court finds that it is nothing
more than speculation that one could just “sense it in the air”
that Plaintiff was being retaliated against through scheduling.
This guesswork by Mr. Murphy, which he admits was not based on
any actual interaction he had with WhiteWave, is insufficient to
establish causation through a pattern of antagonism.
v. Wackenhut Corp., No. 10-4633 (RMB/AMD), 2012 U.S. Dist. LEXIS
72447, at *19 (D.N.J. May 24, 2012) (“Mere allegations,
conclusions, conjecture, and speculation will not defeat summary
judgment.”) (citing Orsatti v. N.J. State Police, 71 F.3d 480,
484 (3d Cir. 1995)).
Plaintiff also points to the pecuniary interests of
WhiteWave as a basis for inferring causation.
costs associated with hiring additional operators to come into
compliance, Plaintiff argues, demonstrate a “clear motivation to
quash Plaintiff’s complaints.”
Further, Plaintiff notes
that discovery of the violations would subject WhiteWave to
fines, which, Plaintiff argues, further demonstrates economic
The Court finds that this argument fails to
establish causation and cannot defeat summary judgment for a
number of reasons.
Primarily, Plaintiff cites to no case law
supporting the contention that causation can be inferred from
this hypothetical economic interest, which would be conjecturally
present in practically any case alleging a violation of CEPA.12
There is also no evidence in the record to suggest that WhiteWave
even engaged in this type of cost-benefit analysis of whether it
made fiscal (if unethical) sense to fire Plaintiff in lieu of
coming into compliance.
Certainly, the record does not dispute
the fact that Plaintiff continued to work there for years after
he made his complaints known, despite Plaintiff’s suggested
pecuniary windfall to WhiteWave if it fired him to hush up the
To the extent that Plaintiff contends that it would
be obvious for an employer to engage in such a cost-benefit
analysis, it is certainly true that the termination of
Plaintiff’s employment did not absolve WhiteWave of the
responsibility to come into compliance, if needed.
This was a
fact that had been pointed out to WhiteWave by its insurer four
(Def. Br., Ex. J.)
The Court views Plaintiff’s
causal argument on this point to be speculative at best and
unable to defeat summary judgment.
“The purpose of the CEPA is ‘to protect and encourage
employees to report illegal or unethical workplace activities and
to discourage public and private sector employers from engaging
in such conduct.’” Choy v. Comcast Cable Communs., 629 F. App'x
362, 364 (3d Cir. 2015) (quoting Abbamont v. Piscataway Bd. of
Educ., 650 A.2d 958, 971 (N.J. 1994).
Finally, Plaintiff argues that WhiteWave’s alleged
mismanagement of his FMLA leave is part of the pattern of
antagonism allowing for an inference of causation.13
The Court disagrees.
(Pl. Br. at
Plaintiff contends that WhiteWave
provided inadequate notice as to the start and expiration of his
leave, relying on expert testimony to show WhiteWave deviated
from professional standards.
Specifically, as set forth
above, Plaintiff argues that the following language from Ms.
Perez’s letter, dated October 13, 2014, did not clearly explain
to him that his leave would end on December 29, 2014:
You have informed us you will need to be out
of work beginning October 6, 2014 due to a
medical condition . . .
The Family Medical Leave Act (FMLA) entitles
eligible employees to an unpaid leave of
absence for up to 12 weeks (in any 12-month
period) for a serious health condition . . .
The completed Certification serves as both
your application for FMLA leave and as
supportive documentation for the leave.
The Court takes this opportunity to note that Plaintiff has
elected not to bring a breach of contract cause of action nor an
FMLA interference cause of action, despite frequent allegations
throughout his briefing that his contractual right to a specific
shift was trampled and that his FMLA process was deliberately
mishandled. (Compl., Notice of Rem., Ex. B; Def. Br. at 46.)
Although Plaintiff sought to amend the complaint to state a cause
of action under the FMLA, such request was denied. (Mar. 3, 2017
Order.) Plaintiff failed to appeal the March 3, 2017 Order
within fourteen days as required under Federal Rule of Civil
Procedure 72. Fed. R. Civ. P. 72.
(FMLA Paperwork, Oct. 13, 2014, Def. Br., Ex. P.)
Plaintiff argues that WhiteWave’s failure to offer him his same
position and shift upon return from FMLA leave should be
construed as retaliatory in nature because WhiteWave was aware
Plaintiff would be unable to accept a night shift.
These occurrences are insufficient to permit a factfinder to
find that Plaintiff’s protected activity was causally related to
his adverse employment action.
While Plaintiff lists this litany
of grievances regarding his FMLA leave, he fails to effectively
explain how these grievances, which took place in 2014 and embody
the adverse employment action of which Plaintiff complains, (Pl.
Br. at 42-43), are part of a pattern of antagonism reaching as
far back as his initial 2009 compliance complaint.
differently, instead of showing that his adverse employment
action is causally linked to his temporally-remote protected
activity by pointing to a series of connecting antagonistic
skirmishes in the intervening years, he argues that the very fact
that he ultimately suffered an adverse employment action is
evidence that the action was caused by the protected activity.
Such reasoning would obviate the need to ever show causation, as
it would be automatically established by the existence of an
adverse employment action.
None of the above occurrences
evidences any pattern of antagonism that connects Plaintiff’s
complaints to his termination from WhiteWave.
At the outset of his summary judgment briefing, Plaintiff
urges the Court to view the case as theater and consider the
entire performance rather than the isolated scenes.
v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990).
Doing so, however, shows exactly why Plaintiff has not
demonstrated causation under any standard.
As explained supra,
considering the entirety of the record does not indicate
animosity or antagonism between the parties from 2010 to 2014,
indeed, it contradicts any such notion.
contention that he was complaining consistently throughout that
time period or that everyone knew he had a standing complaint
regarding the operation of the boilers, his scheduling was
manageable for him, his performance was well-regarded, and he
felt no need to file a formal complaint.
This equilibrium was
ultimately disturbed not by WhiteWave’s conduct, but rather by
the absence of Mr. Peterson, which threw everything about
Plaintiff’s scheduling into flux.
The circumstances surrounding
the four-year détente between the parties fatally undermines the
essential prima facie element of causation, even when considering
Mr. Murphy’s testimony.
This is true whether the Court views the
facts under the “pattern of antagonism” or “totality of the
Thus, this Court finds that Plaintiff fails
to establish a prima facie CEPA claim.
WhiteWave is proper.
Summary judgment for
As discussed above, the Court finds that Plaintiff is unable
to establish a prima facie case under CEPA due to a lack of
For the foregoing reasons, the Court will GRANT
WhiteWave’s motion for summary judgment.
An appropriate Order
and Judgment shall be issued on this date.
DATED: JUNE 26, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
The operative complaint purports to bring a second cause of
action for “punitive damages” premised on the violation of CEPA.
Disregarding the fact that this is not a properly pled as a
separate cause of action, see Ali v. D.O.C., Civ. A. No. 082425(FSH), 2008 WL 5111274, at *13 (D.N.J. Nov. 25, 2008)
(“Punitive damages are a remedy available for certain causes of
action and not an independent substantive cause of action . . .
.”) (citing Hassoun v. Cimmino, 126 F. Supp. 2d 353 (D.N.J.
2000)), where Plaintiff does not establish liability under CEPA,
punitive damages certainly cannot flow.
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