TRZASKA v. L'OREAL USA, INC. et al

Filing 189

OPINION. Signed by Judge Susan D. Wigenton on 10/23/2020. (ams, )

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STEVEN TRZASKA,

Civil Action No. 15-2713 (SDW) (LDW)
Plaintiff,

v.

OPINION

L’ORÉAL USA, INC. and L’ORÉAL, S.A.,
Defendants.

October 23, 2020

WIGENTON, District Judge.
Before this Court are Defendants L’Oréal USA, Inc. (“L’Oréal USA”) and L’Oréal S.A.’s
(“L’Oréal S.A.”) (collectively “Defendants”) Motions for Summary Judgment pursuant to Federal
Rule of Civil Procedure (“Rule”) 56. Jurisdiction is proper pursuant to 28 U.S.C. § 1332. Venue
is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to
Rule 78. For the reasons stated herein, Defendants’ Motions are GRANTED.
I.

FACTUAL & PROCEDURAL HISTORY
At all relevant times, Plaintiff Steven J. Trzaska (“Plaintiff”), an attorney admitted in

Pennsylvania and before the U.S. Patent and Trademark Office (“USPTO”), was employed by
L’Oréal USA as Vice President – Patents and Business Development. Plaintiff was based in
L’Oréal USA’s Clark, New Jersey location (“Clark”), and alleges that he was terminated after
refusing to file bad-faith or frivolous patent applications that would violate his ethical obligations
under the Rules of Professional Conduct promulgated by the Pennsylvania Supreme Court and the
USPTO (collectively, “RPCs”). (See D.E. 10 ¶¶ 16–17, 65.) After he was terminated, Plaintiff

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brought suit against Defendants under New Jersey’s Conscientious Employee Protection Act
(“CEPA”), N.J. Stat. Ann. § 34:19-1 et seq. (Id. ¶¶ 71, 73.)
This Court previously granted L’Oréal USA’s Motion to Dismiss the Amended Complaint
and the Third Circuit reversed. Trzaska v. L’Oréal USA, Inc., 865 F.3d 155, 163 (3d Cir. 2017),
as amended (Aug. 22, 2017). Defendants subsequently filed the instant Motions for Summary
Judgment, and all briefs were timely submitted. (D.E. 167-2, 168-1, 175-3, 179 & 180.) 1 The
Court summarizes the facts for the purpose of this opinion. 2
Plaintiff began working at the Clark location of L’Oréal USA 3 in 2004 as Assistant Vice
President - Head of Patents. 4 (D.E. 168-2 & 177-2 ¶¶ 1, 3, 6.) In April 2013, Patricia Rocha
(“Rocha”) was hired to work as an attorney in Clark’s patent department and reported to Plaintiff;
the reasons for her onboarding are disputed. (D.E. 168-2 & 177-2 ¶¶ 14–15; D.E. 175-1, 179-2 &
180-1 ¶ 24.) With respect to patent matters in Clark, Plaintiff and Rocha maintained regular
contact with Denis Boulard (“Boulard”), Director of L’Oréal S.A.’s Direction Internationale de la
Properiété Industrielle (“DIPI”). (D.E. 168-2 & 177-2 ¶¶ 23–24.) DIPI oversees L’Oréal’s patent
teams in six countries, including the United States and France. (D.E. 168-2 & 177-2 ¶ 20.) As
Director of DIPI as well as a patent practitioner licensed to represent L’Oréal S.A. in France and

1

Plaintiff filed duplicative opposition briefs to the Defendants’ motions, as well as duplicative Supplemental
Statements of Disputed Material Facts. (See D.E. 175-1, 177-1, 175-3 & 177-3.) The Court cites to Docket Entry
Numbers 175-1 and 175-3 only.
2

Unless otherwise noted, the facts are undisputed.

3

Defendant L’Oréal S.A. is a publicly traded French corporation headquartered in France. (D.E. 168-2 & 177-2 ¶ 2.)
L’Oréal USA is the United States subsidiary of L’Oréal S.A. (D.E. 168-2 & 177-2 ¶ 2.) For purposes of its Summary
Judgment Motion, L’Oréal S.A. does not challenge that it should be considered Plaintiff’s employer under CEPA.
(D.E. 175-1 & 179-2 ¶ 11; see also D.E. 168-1 at 1, n.1.) Accordingly, the Court does not draw distinctions between
L’Oréal USA and L’Oréal S.A. in deciding the parties’ motions.
4

Plaintiff’s title changed three times during his employment: he was originally Assistant Vice President – Head of
Patents, followed by Vice President – Head of Patents, and finally, Vice President – Patents and Business
Development. (D.E. 168-2 & 177-2 ¶ 6.)

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before the European Patent Office, Boulard was responsible for ensuring global coordination and
alignment among L’Oréal’s patent practitioners. (D.E. 168-2 & 177-2 ¶¶ 23–24.)
Alleged Patent-Filing Quota: Prior to 2014, Defendants had a global objective to file 500550 patent applications per year. (D.E. 167-1 & 175-2 ¶ 27; D.E. 175-1, 179-2 & 180-1 ¶ 36.) For
the first time in 2014, Defendants adopted a specific objective of 40 patent applications for Clark. 5
(D.E. 168-2 & 177-2 ¶ 29; D.E. 175-1, 179-2 & 180-1 ¶ 37; D.E. 167-4, Ex. D (“Trzaska Dep. I”)
to D.E. 167-3 (“Alito Decl.”), Pt. 3 at 21:3–10.) The patent objective for Clark in 2014 was
established in consultation with Rocha, and Plaintiff also had an opportunity to provide feedback.
(D.E. 167-1 & 175-2 ¶¶ 13–14; D.E. 168-2 & 177-2 ¶¶ 25–26; Trzaska Dep. I, Pt. 2 at 15:24–17:5,
Pt. 3 at 22:10–23:2; D.E. 169-3 & 169-4, Exs. N & O to D.E. 168-3 (“Savage Decl.”).)
To avoid a year-end rush of patent-filings and improve the quality of patents, phased work
on patents in the pipeline, specifically work from scientists, was crucial. (D.E. 168-2 & 177-2 ¶
30; Trzaska Dep. I, Pt. 2 at 12:17–21.) For example, Defendants followed an internal patent-filing
process that began with scientists’ creation of Notes of Intent (“NOIs”), which described the
invention and its patentability. (D.E. 175-1, 179-2 & 180-1 ¶ 27; D.E. 175-7, Ex. 21 (“Patenting
Process Chart”) to D.E. 175-4 (“Goodman Decl.”).) L’Oréal S.A.’s committee of laboratory heads
in Paris reviewed NOIs. (D.E. 175-1, 179-2 & 180-1 ¶ 27; Patenting Process Chart; see Trzaska
Dep. I, Pt. 3 at 13:2–4.) After L’Oréal S.A. conducted its vetting process with respect to NOIs,
technical notes were created by scientists and reviewed by Plaintiff for prospective United States
patent applications. (D.E. 175-1, 179-2 & 180-1 ¶ 29; Patenting Process Chart; see Trzaska Dep.

5
The parties disagree as to the appropriate language to describe this number. (Compare D.E. 167-1 & 168-2, with
175-2 & 177-2; compare 175-1, with 179-2 & 180-1.) Defendants use the terms “target” and “goal” while Plaintiff
repeatedly uses the word “quota.” (See, e.g., D.E. 167-1 & 175-2 ¶¶ 16, 20; D.E. 168-2 & 177-2 ¶ 30; D.E. 175-1,
179-2 & 180-1 ¶¶ 35–37.) Plaintiff admits that other than he and Rocha, no one used the word “quota.” (D.E. 167-1
& 175-2 ¶ 21.) For purposes of this opinion, the Court will refer to the number as an “objective.”

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I, Pt. 3 at 13:20–25.) Plaintiff testified that it was understood by him and others involved in the
process that if scientists delayed their technical notes until December, then lawyers could not
complete patent applications by the year’s end. (D.E. 168-2 & 177-2 ¶¶ 30–31; Trzaska Dep. I,
Pt. 3 at 24:23–26:8.)
It is undisputed that by October 2, 2014, the Clark location had only 20 patent-filings for
the year, or one-half of the objective. (D.E. 175-1, 179-2 & 180-1 ¶ 52; D.E. 175-7, Ex. 31 to
Goodman Decl.) On October 3, 2014, Plaintiff and Rocha received concerns from management
regarding the lack of technical notes from scientists that could be used in support of patent
applications. (D.E. 168-2 & 177-2 ¶ 32; D.E. 175-6, Ex. 18 to Goodman Decl.) As a result,
Plaintiff and Rocha were asked to assist with obtaining the necessary materials from scientists so
that patent applications could be prepared and submitted. (D.E. 168-2 & 177-2 ¶ 32; D.E. 175-6,
Ex. 18 to Goodman Decl.) On October 9, 2014, Plaintiff emailed his supervisor stating that “[w]e
currently have a sufficient number of technical notes to meet our US target.” (D.E. 168-2 & 1772 ¶ 33 (quoting D.E. 169-7, Ex. R to Savage Decl.).) Plaintiff continued: “[t]here was a
miscommunication on my part regarding one table I was looking at. Brazil and Seattle may be
short but not Clark.” (D.E. 168-2 & 177-2 ¶ 33 (quoting D.E. 169-7, Ex. R to Savage Decl.).) On
the same day, Plaintiff sent his supervisor a separate email indicating that seven technical notes
could not be filed because a key ingredient in the inventions presented a conflict with a
confidentiality agreement. (D.E. 175-1, 179-2 & 180-1 ¶ 58 (citing D.E. 175-7, Ex. 34 to
Goodman Decl.).) Plaintiff ended this email by stating that “[t]he best way to describe the current
technical note situation is ‘fluid/dynamic chaos.’” (D.E. 175-1, 179-2 & 180-1 ¶ 58; (quoting D.E.
175-7, Ex. 35 to Goodman Decl.).) The 2014 patent-filing objective for Clark was ultimately
exceeded by 8 applications with 48 total applications filed. (D.E. 167-1 & 175-2 ¶¶ 12, 20; Trzaska

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Dep. I, Pt. 3 at 9:7–14.)
Alleged Whistleblowing Activity: On three separate occasions, Plaintiff raised concerns
about Defendants’ patent-filing objectives with Jean Francois Pahin (“Pahin”), L’Oréal S.A.’s
Chief Administrator and Finance Officer for the Research and Innovation Group. 6 (D.E. 167-1,
175-2 ¶¶ 23–25; D.E. 168-2 & 177-2 ¶¶ 46, 48.) The first conversation occurred in March 2013,
before the Clark objective was adopted, during a private meeting between Plaintiff and Pahin in
France. (D.E. 167-1 &175-2 ¶¶ 25, 27; D.E. 168-2 & 177-2 ¶ 46; Trzaska Dep. I, Pt. 3 at 36:21–
40:7.) Among other topics, Plaintiff voiced concerns about potentially running afoul of his ethical
obligations under the RPCs in light of Defendants’ patent-filing system which Plaintiff claimed
centered on the numbers. (D.E. 167-1 & 175-2 ¶ 26; D.E. 168-2 & 177-2 ¶ 46; Trzaska Dep. I, Pt.
3 at 39:6–21.)
The second conversation occurred in May 2014 in Clark; Plaintiff testified that he
expressed similar concerns to Pahin regarding the patent-filing objectives and his ethical
obligations. (D.E. 175-1 & 179-2 ¶ 42; Trzaska Dep. I, Pt. 3 at 44:9–15, 54:9–56:12.) The third
conversation occurred in October 2014 in Clark. (D.E. 167-1 & 175-2 ¶ 33; D.E. 168-2 & 177-2
¶ 40.) Plaintiff testified that during this encounter with Pahin, he explained that he and other
members of his department “were extremely concerned about running afoul of [their] rules of
professional conduct and responsibility because of this quota of patent filings that [they] had to
meet,” and that no one, including himself, would jeopardize his or her law licenses by filing

6

Rocha had also expressed concerns to management and Plaintiff regarding a lack of adequate technical notes from
scientists and Defendants’ patent-filing practices and processes. (D.E. 167-1 & 175-2 ¶ 49; D.E. 168-2 & 177-2 ¶ 37.)
For example, Rocha felt that her “license and professional obligations [were] being jeopardized.” (D.E. 175-1, 179-2
& 180-1 ¶ 59 (quoting D.E. 175-6, Ex. 17 to Goodman Decl.).) However, Plaintiff cannot predicate his CEPA claim
on Rocha’s subjective beliefs. See Blackburn v. United Parcel Serv., Inc., 3 F. Supp. 2d 504, 515 (D.N.J. 1998), aff’d,
179 F.3d 81 (3d Cir. 1999) (“CEPA does not merely require that the employee subjectively believe that certain
activities have taken or are about to take place.”). Although Rocha submitted her resignation in September 2014, she
continued working in some capacity through May 2015. (D.E. 167-1 & 175-2 ¶ 51; D.E. 168-2 & 177-2 ¶ 39.) The
impetus for Rocha’s resignation is disputed. (D.E. 167-1 & 175-2 ¶ 52.)

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“potentially unpatentable patent applications merely to satisfy a quota.” (D.E. 167-1 & 175-2 ¶
34 (quoting Trzaska Dep. I, Pt. 3 at 47:4–14); D.E. 168-2 & 177-2 ¶ 43.) Plaintiff also warned
Pahin that Defendants would jeopardize their future ability to claim rights to any patent that arose
from an intentionally misleading or fraudulent application. (D.E. 167-1 & 175-2 ¶ 35; D.E. 1682 & 177-2 ¶ 42; Trzaska Dep. I, Pt. 3 at 50:6–51:18.)
Notwithstanding Plaintiff’s voiced concerns, he never filed a fraudulent patent with the
USPTO, nor did he do anything unethical in connection with a patent application. (D.E. 167-1 &
175-2 ¶¶ 38–39; D.E. 168-2 & 177-2 ¶ 51; Trzaska Dep. I, Pt. 3 at 51:19–24.) Defendants never
requested or ordered Plaintiff to do anything unethical with respect to a patent application; nor did
they ever order him—or any other attorney to his knowledge—to file a baseless application. (D.E.
167-1 & 175-2 ¶¶ 41–43; D.E. 168-2 & 177-2 ¶ 51; Trzaska Dep. I, Pt. 3 at 52:4–19, 53:16–54:7.)
Plaintiff was not aware of Rocha ever breaching her ethical obligations in connection with a patent
application, and, to Plaintiff’s knowledge, no one instructed Rocha to file a patent application with
inadequate technical notes. (D.E. 167-1 & 175-2 ¶¶ 40, 44; D.E. 168-2 & 177-2 ¶ 51; Trzaska
Dep. I, Pt. 3 at 51:25–52:2, 74:16–19.) In addition, Defendants never told Plaintiff that he would
be disciplined—or words to that effect—if he did not meet Clark’s patent-filing objective. (D.E.
167-1 & 175-2 ¶ 45; D.E. 168-2 & 177-2 ¶ 53; Trzaska Dep. I, Pt. 3 at 107:4–9; see also id. at
8:25–9:6, 34:19–35:19.)
On October 24, 2014, Plaintiff met with the Head of Human Resources for Research and
Innovation at L’Oréal USA, Diane Lewis (“Lewis”), and the two discussed Plaintiff’s prior
meeting with Pahin. (D.E. 167-1 & 175-2 ¶ 71; Trzaska Dep. I, Pt. 3 at 75:24–77:4). Lewis
presented Plaintiff with two options: 20-weeks of severance pay or continue to work. (D.E. 1671 & 175-2 ¶ 73; Trzaska Dep. I, Pt. 3 at 79:2–24.) On December 8, 2014, Plaintiff was informed

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that he was terminated as a result of a planned reorganization. (D.E. 175-1, 179-2 & 180-1 ¶ 77;
Trzaska Dep. I, Pt. 3 at 87:1–88:5.) The true reason for Plaintiff’s termination is disputed. (D.E.
167-1 & 175-2 ¶ 74.)
II.

LEGAL STANDARD
Summary judgment is appropriate “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). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A
fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.
2001). “In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s

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evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
The nonmoving party “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d
584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party
is required to “point to concrete evidence in the record which supports each essential element of
its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If
the nonmoving party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which . . . [it has] the burden of proof,” then the moving party
is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322–23. Furthermore, in
deciding the merits of a party’s motion for summary judgment, the court’s role is not to evaluate
the evidence and decide the truth of the matter, but to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. The nonmoving party cannot defeat summary judgment
simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v.
Antar, 44 F. App’x 548, 554 (3d Cir. 2002).
III.

DISCUSSION
The New Jersey Legislature enacted CEPA 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.” Abbamont v. Piscataway Twp. Bd. of Educ., 650 A.2d 958, 971
(N.J. 1994). New Jersey’s Conscientious Employee Protection Act provides, in relevant part, that:
An employer shall not take any retaliatory action against an
employee because the employee does any of the following: . . .
c. Objects to, or refuses to participate in any activity, policy or

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practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated
pursuant to law . . . ;
(2) is fraudulent or criminal . . . ; or
(3) is incompatible with a clear mandate of public policy concerning
the public health, safety or welfare or protection of the
environment.
N.J. Stat. Ann. § 34:19-3(c). A retaliatory action is defined as “the discharge, suspension or
demotion of an employee, or other adverse employment action taken against an employee in the
terms and conditions of employment.” Id. § 34:19–2(e).
To establish a prima facie CEPA claim, Plaintiff must establish four elements: “(1) he
reasonably believed that his employer’s conduct was violating the law, (2) he performed ‘whistleblowing’ activity as defined in the statute, (3) an adverse employment action was taken against
him, and (4) a causal connection exists between the whistle-blowing activity and the adverse
employment action.” Flear v. Glacier Garlock Bearings, a Div. of Enpro Indus., Inc., 159 F.
App’x 390, 392 (3d Cir. 2005) (citing Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 92
(3d Cir. 1999)). If the employee establishes a prima facie CEPA claim, courts apply the burden
shifting test articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See
Blackburn, 179 F.3d at 92. Thus, the burden of production shifts to the employer, who must
provide a legitimate, non-retaliatory reason for its adverse action; if the employer furnishes a
reason, the burden shifts back to the employee who must demonstrate that the employer’s
justification is pretextual. Id.
The New Jersey Supreme Court has stated that the first prong “does not require a plaintiff
to show that a law, rule, regulation or clear mandate of public policy actually would be violated if
all the facts he or she alleges are true. Instead, a plaintiff must set forth facts that would support
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an objectively reasonable belief that a violation has occurred.” Dzwonar v. Mcdevitt, 828 A.2d
893, 901 (N.J. 2003). An employee’s reasonable belief “must be such that a ‘reasonable lay person
would conclude that illegal activity was going on’ or at the very least, is imminent.” Blackburn,
3 F. Supp. 2d at 515 (quoting Young v. Schering Corp., 660 A.2d 1153, 1158 (N.J. 1995)).
Accordingly, at this stage, the court must determine whether the record contains evidence from
which a reasonable juror could conclude that Defendants engaged in wrongdoing such that “a
substantial nexus [exists] between the complained-of conduct and a law or public policy identified
by the court or [P]laintiff.” Patterson v. Glory Foods, Inc., 555 F. App’x 207, 212 (3d Cir. 2014).
If a court finds a substantial nexus, then the jury must decide whether the employee indeed held
“such a belief and, if so, whether that belief was objectively reasonable.” Dzwonar, 828 A.2d at
901–02.
Significantly, in this case the Third Circuit held that a violation of public policy under
CEPA can occur when “[a]n instruction, coercion, or threat by an employer . . . result[s] in the
disregard of obligatory ethical standards of one’s profession,” such as the RPCs. Trzaska, 865
F.3d at 161. Any assertion that an RPC violation had occurred or was imminent is wholly
undermined by Plaintiff’s testimony. See Patterson, 555 F. App’x at 211–12. During his
deposition, Plaintiff testified that (i) he never filed a fraudulent patent application with the USPTO;
(ii) he never did anything unethical with respect to a patent filing; (iii) he was never ordered by
Defendants to do anything unethical with respect to a patent filing; (iv) he was never told by
Defendants to file a patent application which he considered baseless; (v) to his knowledge, no
other attorneys in the patent department were ever told or directed by Defendants to file a patent
application that those attorneys said was baseless; (vi) to his knowledge, Rocha never engaged in
unethical behavior; and (vii) to his knowledge, Rocha was never told to file a patent based on

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inadequate technical notes. (Trzaska Dep. I, Pt. 3 at 51:19–52:19, 53:12–54:7, 74:16–19.) Thus,
it is undisputed that Plaintiff was never told or instructed by Defendants to file a fraudulent or
defective patent; nor was Plaintiff aware of any other attorney under his purview who was told or
instructed to do the same. (Id.; D.E. 167-1 & 175-2 ¶¶ 38–44; D.E. 168-2 & 177-2 ¶ 51.) It is also
undisputed that Plaintiff was never threatened with discipline in the event Defendants’ patentfiling objectives were not met, which negates any allegation that Plaintiff was implicitly instructed
to violate the RPCs. (D.E. 167-1 & 175-2 ¶ 45; D.E. 168-2 & 177-2 ¶ 53; Trzaska Dep. I, Pt. 3 at
107:4–9; see also id. at 8:25–9:6 (stating that if the global patent-filing objective was not met
“because of the[] enhanced standards, then that’s something upper management would have to
deal with and accept . . . .”); id. at 34:19–35:19 (admitting that an email from L’Oréal USA’s
Senior Vice President, Head of Research to Plaintiff and others did not use words signifying that
the patent objective for 2014 was mandatory or punitive in nature).)
The undisputed facts similarly fail to demonstrate that an RPC violation was imminent.
For example, on October 9, 2014, more than two months before the year’s end, Plaintiff admitted
to his supervisor that his team had “a sufficient number of technical notes to meet our US target.” 7
(D.E. 168-2 & 177-2 ¶ 33 (quoting D.E. 169-7, Ex. R to Savage Decl.) (emphasis added).) Any
concerns Plaintiff harbored about the adequacy of technical notes (see D.E. 175-1, 179-2 & 180-1
¶ 58; D.E. 175-7, Ex. 35 to Goodman Decl.) are diminished by the fact that Clark had 48 patentapplications in 2014—amounting to 8 more than the alleged magic number of 40 applications.
(See D.E. 167-1 & 175-2 ¶¶ 12, 20; D.E. 168-2 & 177-2 ¶ 29; Trzaska Dep. I, Pt. 3 at 9:7–14,
21:3–10.) Thus, because Clark already had 20 patent applications by October 2014, an additional

7

Indeed, Plaintiff himself used the term “target” to describe Defendants’ patent-filing objectives, undermining his
steadfast argument that the numbers were not merely aspirational. (See D.E. 169-7, Ex. R to Savage Decl.; D.E. 1753 at 15.) Plaintiff admitted that no one in management used the word “quota” in connection with Defendants’ patentfiling numbers. (D.E. 167-1 & 175-2 ¶ 21; Trzaska Dep. I, Pt. 3 at 23:3–24.)

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28 filings were completed between October and December of 2014. (See D.E. 167-1 & 175-2 ¶¶
12, 20; D.E. 175-1, 179-2 & 180-1 ¶ 52; D.E. 175-7, Ex. 31 to Goodman Decl.; Trzaska Dep. I,
Pt. 3 at 9:7–14.) These numbers may be indicative of a push to complete patent filings as a result
of the delayed submission of technical notes. However, when viewed in a light most favorable to
Plaintiff, these undisputed facts, coupled with Plaintiff’s admission that he never filed or was asked
to file a fraudulent patent application (see Trzaska Dep. I, Pt. 3 at 51:19–21, 53:16–23), negate the
contention that an RPC violation was imminent.
Because Plaintiff and his colleagues were never required, directed, or forced to submit
baseless patent applications in violation of their professional obligations (see Trzaska Dep. I, Pt. 3
at 51:19–52:19, 53:12–54:7), he fails to establish that Defendants engaged in wrongdoing. See
Johnson v. New Jersey Higher Educ. Student Assistance Auth., No. A-3102-13T1, 2015 WL
6739525, at *6 (N.J. Super. Ct. App. Div. Nov. 5, 2015) (affirming summary judgment in favor of
defendants where plaintiff failed to establish a reasonable belief that her supervisor instructed her
to commit fraud when she was never told “to fabricate facts, falsify documents, or falsely implicate
others”). Even if Plaintiff asserted that all outstanding technical notes were non-patentable—
which the record does not reflect—his CEPA claim would still fail because he was never asked to
and did not file baseless patent applications on Defendants’ behalf. See Capanna v. Tribeca
Lending Corp., No. 06-5314, 2009 WL 900156, at *8 (D.N.J. Mar. 31, 2009) (finding that plaintiff
failed to establish a reasonable belief that the defendant “was engaging in, or about to engage in,
fraud” where plaintiff was never instructed to underwrite a deficient loan application and did not
furnish “evidence to suggest that illegal activity occurred or was imminent”).
Indeed, after the completion of discovery, the undisputed facts “undercut any suggestion
that management encouraged the submission of frivolous patent applications.” See Trzaska, 865

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F.3d at 166; see also Colon v. Prudential Ins. Co. of Am., No. A-4422-04T3, 2006 WL 507732, at
*8 (N.J. Super. Ct. App. Div. Mar. 3, 2006) (finding that plaintiff failed to establish the first
element of his CEPA claim because the record lacked facts “identify[ing] fraudulent or illegal acts
allegedly committed by [defendants]”).

For example, Plaintiff testified that management

recognized the importance of phasing the invention and patent-filing process after scientists had
consistently submitted technical notes in December of previous years, thereby preventing patent
lawyers from completing applications before the year’s end. (See D.E. 168-2 & 177-2 ¶¶ 30–31;
Trzaska Dep. I, Pt. 3 at 24:23–26:8.) Furthermore, Plaintiff confirmed that the patent-phasing
process was part of Defendants’ plan to improve patent quality. (Trzaska Dep. I, Pt. 2 at 12:17–
21.) Thus, Defendants’ patent-filing process does not support the conclusion that they endorsed
the filing of defective patent applications. (See Patenting Process Chart.)
Plaintiff points to no law prohibiting Defendants from promulgating an internal patentfiling objective. 8 See Gibson v. 11 History Lane Operating Co. No. A-4567-12T3, 2014 WL
700124, at *8 (N.J. Super. Ct. App. Div. Feb. 25, 2014) (finding that plaintiff lacked a reasonable
belief that a violation of public policy occurred where the Board of Nursing confirmed that no law
prohibited the employer’s chart-checking policy). Business objectives are commonplace in a
multitude of workplaces and cannot independently serve as a basis for CEPA claims. (See D.E.
167-2 at 21); see also Colon, 2006 WL 507732, at *10 (noting that an employee cannot object to
his employer’s drug research merely on grounds that it is controversial because the employer
maintains the legal right to make decisions as to its research) (citing Young v. Schering Corp., 645

8

Furthermore, Plaintiff’s expert testified that in the abstract, “the mere fact of establishing a target number for patent
production is not itself unethical.” (D.E. 167-1 & 175-1 ¶ 18 (quoting D.E. 167-4, Ex. J to Alito Decl. at 119:17–20).)
Importantly, Plaintiff’s expert cannot opine on the ultimate legal issue of whether Plaintiff held an objectively
reasonable belief under CEPA. See, e.g., Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006)
(“Although Federal Rule of Evidence 704 permits an expert witness to give expert testimony that embraces an ultimate
issue to be decided by the trier of fact, an expert witness is prohibited from rendering a legal opinion.”) (internal
quotations omitted).

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A.2d 1238 (N.J. Super Ct. App. Div. 1994)).
Important here, Plaintiff’s mere disagreement with Defendants’ desire to file a specific
number of patent applications per year—irrespective of whether that objective is characterized as
a “quota,” “target,” or “goal”—cannot, without more, sustain a CEPA claim. “CEPA affords no
protection for the employee who simply disagrees with lawful policies, procedures or priorities of
the employer.” Hitesman v. Bridgeway Inc., 63 A.3d 230, 238 (N.J. Super. Ct. App. Div. 2013),
aff’d 93 A.3d 306 (N.J. 2014). Nor is CEPA “intended to spawn litigation concerning the most
trivial or benign employee complaints.” Estate of Roach v. TRW, Inc., 754 A.2d 544, 552 (N.J.
2000); Blackburn, 179 F.3d at 93, n.4 (stating that CEPA does not shield “chronic complainers”
or “alarmists” who “constantly declar[e] that illegal activity is afoot-or . . . is about to be afoot”).
Rather, an employee “must have an objectively reasonable belief that a violation of the relevant
legal authority occurred, rather than an objection based on some other principle, no matter how
deeply believed.” Hitesman, 63 A.3d at 239 (internal quotations omitted). Plaintiff’s concerns
amount to a mere disagreement with Defendants’ patent-filing objectives and priorities, nothing
more. See, e.g., Gibson, 2014 WL 700124, at *8 (affirming summary judgment for defendant
because plaintiff’s concerns regarding her employer’s chart-checking policy merely raised a
legitimate difference of opinion).
Accordingly, because Plaintiff failed to “set forth any evidence from which a reasonable
person could conclude that [Defendants] engaged in wrongdoing” with respect to its patent
applications, and “hence cannot show a substantial nexus between the complained-of conduct and
[the RPCs] . . . he cannot meet the first element of a CEPA claim.” See Patterson, 555 F. App’x
at 212 (internal quotations omitted). 9

9

Because Plaintiff fails to set forth a genuine issue of fact as to the first element, it is not necessary to discuss the
remaining CEPA elements. See, e.g., Clark v. Acme Markets, Inc., 2014 WL 714898, at *10 (D.N.J. Feb. 24, 2014).

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IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motions for Summary Judgment are

GRANTED. An appropriate order follows.
___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.
Orig:
cc:

Clerk
Leda D. Wettre, U.S.M.J.
Parties

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