Opinion
DOCKET NO. A-4738-11T4
11-13-2013
WILLIAM EDWARDS and CAROLINE EDWARDS, Plaintiffs-Appellants, v. STATE OF NEW JERSEY CASINO CONTROL COMMISSION, LINDA KASSEKERT, GARY STEIN, TAMA HUGHES, MARK GIANNANTONIO, individually, jointly, and severally and in the alternative, Defendants-Respondents.
George L. Farmer argued the cause for appellants. David J. Truelove argued the cause for respondents Casino Control Commission and Linda Kassekert (Hill Wallack, attorneys; Paul P. Josephson and Mr. Truelove, of counsel and on the brief). Sean J. Mack argued the cause for respondent Gary Stein (Pashman Stein, attorneys; John T. Whipple, of counsel and on the brief). Gerard W. Quinn argued the cause for respondents Tama Hughes and Mark Giannantonio (Cooper Levenson April Niedelman & Wagenheim, attorneys; Mr. Quinn, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Espinosa and O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1474-09.
George L. Farmer argued the cause for appellants.
David J. Truelove argued the cause for respondents Casino Control Commission and Linda Kassekert (Hill Wallack, attorneys; Paul P. Josephson and Mr. Truelove, of counsel and on the brief).
Sean J. Mack argued the cause for respondent Gary Stein (Pashman Stein, attorneys; John T. Whipple, of counsel and on the brief).
Gerard W. Quinn argued the cause for respondents Tama Hughes and Mark Giannantonio (Cooper Levenson April Niedelman & Wagenheim, attorneys; Mr. Quinn, on the brief). PER CURIAM
In this appeal, we consider the viability of a CEPA claim and other similar employment causes of action, which were asserted by plaintiff William Edwards and his wife in the Law Division and which were unduly complicated by irrelevant concerns about the trial court's jurisdiction. Because the merits of plaintiff's claim that he was wrongfully terminated from his position as executive director of surveillance at the Tropicana Casino and Resort (Tropicana) were never adequately addressed at the time the trial judge granted summary judgment on behalf of all defendants, we affirm in part, reverse in part, and remand.
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14.
I
We briefly summarize the upheaval in the employer's status as an operating Atlantic City casino as well as the events that led to plaintiff's termination from employment. We do not suggest the circumstances we briefly unfold are undisputed. Our purpose in outlining these matters is to inform the reader of the setting of this dispute because whether plaintiff was terminated in violation of CEPA, and, if so, which of the named defendants may be held liable, was not adequately illuminated in the trial court.
A
In May 2001, plaintiff was hired by Adamar of New Jersey, Inc., then the owner, operator and casino licensee of the Tropicana. At the time of his termination in 2008, it appears the Tropicana was operating under interim casino authorization (ICA) granted by the Casino Control Commission (the CCC) in November 2006, effective January 3, 2007, at which time another entity was being evaluated for licensure. In December 2007, the CCC refused to renew Adamar's casino licenses and ordered its board of directors to resign. The CCC also summarily instituted a conservatorship, pursuant to N.J.S.A. 5:12-130.1 to -130.11, with a conservator to be named later; in the interim, the CCC activated an ICA trust agreement, Adamar, supra, 401 N.J. Super. at 254, and appointed defendant Gary Stein, a retired Supreme Court Justice, as trustee.
ICA is a temporary measure used so applicants can continue the ongoing operations of a casino while the Casino Control Commission investigates whether to grant full or final casino licensure. See N.J.S.A. 5:12-95.15.
Many of the circumstances relating to the operation and licensing of this casino are recounted in greater detail in In re Adamar of N.J., Inc., 401 N.J. Super. 247 (App. Div.), aff'd o.b., 197 N.J. 179 (2008), to which we occasionally refer.
In the wake of these events, plaintiff received two letters from defendant Linda Kassekert, the CCC Chair, concerning a modification to the reporting structure of the executive director of surveillance, namely, plaintiff. In the first letter, dated December 12, 2007, Kassekert advised plaintiff that, "effective immediately" and until "notified in writing otherwise," plaintiff was "to report only to the Chairperson of the [CCC] or my designee on matters of policy, purpose, responsibility and authority." The letter also authorized plaintiff to report to defendant Tama Hughes for "administrative matters only." The second letter, dated December 13, 2007, advised plaintiff he could continue to report to defendant Mark Giannantonio, president and chief operating officer, for "administrative matters only."
A few days later, the CCC appointed defendant Stein as conservator for the Tropicana. According to Kassekert, the conservator held the casino license and was vested with full operating management and control subject to the CCC's supervision. See also N.J.S.A. 5:12-130.1. The powers transferred to the conservator included the authority to "[h]ire, fire and discipline employees." N.J.S.A. 5:12- 130.2(b)(5). The CCC, in fact, enumerated Stein's authority as conservator in a detailed order entered on December 19, 2007, declaring, among other things, that "Stein as conservator shall evaluate whether changes in the management of the former casino licensee are necessary, and he shall be authorized to hire, fire and discipline such staff as in his discretion he deems necessary in furtherance of the policies of the Act and consistent with the requirements thereof and the [CCC's] regulations . . . ."
Notwithstanding the apparent placing of employment decisions in Stein's hands, the record also suggests Kassekert would be and was acting at the time as an internal audit committee (IAC) in place of the IAC that either should have been or would have been appointed. According to Kassekert, she did not formally appoint herself as the IAC or consult with other CCC members; she simply "assumed certain functions related to an [IAC]" because there was no license in place. The record also suggests that Kassekert told Stein "she would perform the function of the [IAC]" while Stein "would have to have ultimate responsibility for the operation of the casino subject to [the CCC's] control, that [he] would have a full management staff to handle the day-to-day responsibilities, that [he] would be ordered to sell the casino's assets, and that [he] would be authorized to retain an investment banking firm [and] corporate counsel to help [him] sell the casino."
B
Turning to the events more directly related to plaintiff's situation, in August 2007, when Adamar petitioned the CCC for renewal of its casino licenses, the CCC's principal inspector, Carol DeFoor, began an evaluation and apprised defendant Tama Hughes, Adamar's chief in-house corporate counsel, that the Tropicana's security supervisor assigned to the casino was also overseeing hotel security in violation of regulatory requirements. Adamar, supra, 401 N.J. Super. at 259. In October 2007, the Division of Gaming Enforcement (DGE) filed a complaint with the CCC, alleging the license applicants failed to have "a properly constituted and functioning [IAC]," or "implement requisite lines of reporting and supervision for its internal control managers and surveillance departments." Id. at 262. When the CCC denied renewal of Adamar's licenses, one of the grounds cited was the lack of an IAC.
DeFoor's concerns came on the heels of an earlier problem with surveillance at the Tropicana. In April 2007, a stipulation of settlement was reached between the DGE and Adamar with the latter admitting it had "failed to obtain [the CCC's] approval prior to the installation and use of digital recording equipment"; consequently, Adamar agreed to pay a $30,0 00 civil penalty. The 2 00 7 stipulation of settlement included Tropicana's "reconfirm[ation] with its surveillance personnel that no changes can be made to any aspects of Tropicana's surveillance system without written approval from the [CCC]."
A year later, in April 2008, plaintiff notified DeFoor that the surveillance department was purchasing a new server. DeFoor quickly responded that plaintiff would need to submit additional information if he intended to move forward with that proposal. Plaintiff advised he would "write a draft for [DeFoor] to review" and would also "notify the DGE." A month later, DeFoor told plaintiff she had looked at his "draft of the surveillance submissions" and advised he "need[ed] to add additional information," including five specific items. And a month after that, DeFoor advised plaintiff of more items he was required to "share . . . with the surveillance directors." She also told plaintiff that "[a]ny changes with regards to the equipment that [are] approved must be resubmitted testing [sic], especially with digital equipment."
On July 24, 2008, plaintiff installed a new computer server in Tropicana's surveillance room. He acknowledged in his deposition that he decided on his own that approval was not necessary. After further inquiries, responses and investigation, the DGE concluded that Adamar had "installed a server in the [s]urveillance monitor room without submitting it for a test or obtaining the appropriate approvals" and recommended legal action against Adamar.
Hughes and Giannantonio met with Stein seeking advice on what steps they could take against plaintiff. Based on the information supplied in their written and oral communications, as well as after consultation with his own counsel, and being further advised by Kassekert that Adamar was authorized to impose a suspension but not final discipline, Stein authorized Giannantonio to suspend plaintiff. On September 16, 2008, plaintiff was suspended without pay pending further investigation. Plaintiff was advised at that time that part of the reason for his suspension was that he had engaged in conduct similar to that which resulted in the 2007 stipulation of settlement.
On October 13, 2008, Adamar filed a request for disciplinary action against plaintiff, alleging sufficient cause existed for his termination. On October 21, 2008, Kassekert notified plaintiff that in three days she would consider the request to terminate his employment or impose such other disciplinary action as might be appropriate "in her capacity as the [IAC]." Plaintiff, through his attorney, advised Kassekert that plaintiff "would not . . . participate at that time." Kassekert responded that plaintiff was not entitled to counsel in the disciplinary matter and that she "had some questions she wished to discuss" with him "before making a determination." Kassekert rescheduled the meeting for October 29, 2008. Plaintiff failed to appear at that time. On November 3, 2008, Kassekert issued a decision terminating plaintiff's employment because the CCC's approval was necessary prior to the installation of the new computer server and because specific information was sought but not provided. Kassekert also found, in reaching her decision to terminate, that it was disturbing that essentially the same thing had occurred a year earlier while plaintiff was executive director of surveillance, resulting in the imposition of liability and a large fine. Kassekert acknowledged at her deposition that she had relied on the information provided by Hughes and Giannantonio in making her decision.
II
On April 21, 2009, plaintiff and his wife filed suit in the Law Division against Adamar, the CCC, Kassekert, Stein, Hughes and Giannantonio, including within the complaint and its later amendments allegations of a CEPA violation, wrongful termination, breach of fiduciary duty, negligence, tortious interference, defamation, vicarious liability, and intentional and negligent infliction of emotional distress. Nearly three years later, plaintiff moved for partial summary judgment regarding his claim that his termination was unlawful, and defendants cross-moved for summary judgment on various grounds. The judge rendered a written decision, dismissing the case in its entirety on what he referred to as "the main issue" - plaintiff did not follow "the correct administrative appeal process." That is, the judge believed plaintiff did not have a right to file a civil action in the Law Division "until the initial question of the validity of his termination" was decided by the CCC's final agency decision. This was the essence of the judge's ruling notwithstanding his brief mention of other grounds for dismissal.
The later amendments excluded Adamar as a defendant.
For convenience, we have eliminated the point that refers only to our standard of review as well as other subparts, and we have enumerated the points differently.
I. TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT REGARDING JURISDICTION [AND] FAILURE TO EXHAUST REMEDIES.
A. Material Facts Existed Regarding Who Fired Edwards.
B. Material Facts Existed: Was Kassekert Acting On Behalf Of The [CCC] Or The IAC Of Trop[icana] When She Terminated Edwards?
C. The Trial Court Erred [In Holding] That It Did Not Have Jurisdiction And The Plaintiff Failed To Exhaust Remedies.
II. THE TRIAL COURT ERRED BY RULING IT DOES NOT HAVE JURISDICTION AND THEN DISMISSING PLAINTIFFS' OTHER CLAIMS.
III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO HUGHES' MALPRACTICE.
IV. THE TRIAL COURT ERRED IN DISMISSING THE CASE WITH RESPECT TO PLAINTIFFS' ALLEGED FAILURE TO FILE A TORT CLAIM NOTICE.
V. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WITH RESPECT TO DEFENDANTS' IMMUNITY.
VI. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WITH RESPECT TO WRONGFUL TERMINATION.
A. A Trial Court Can Determine That An Employee Was Wrongfully Terminated.
B. A Surveillance Director Of A Casino Is Not An At-Will Employee. Neither A Casino, Kassekert Nor The [CCC] Can Terminate A Surveillance Director - Only The IAC Can.
VII. THE TRIAL COURT ERRED IN DENYING EDWARDS' MOTION TO TRANSFER.Because the trial judge erroneously determined that the trial court lacked jurisdiction, and because the trial judge failed to thoroughly consider the other issues due to his jurisdiction ruling, we reverse most aspects of his determination and remand for further proceedings.
VIII. THE TRIAL COURT ERRED BY NOT COMPELLING DEFENDANTS TO PRODUCE DOCUMENTS THAT WERE DESCRIBED AS BEING PRIVILEGED.
IX. THE TRIAL COURT ERRED BY NOT BARRING COOPER LEVENSON FROM REPRESENTING HUGHES AND GIANNANTONIO, AND GRANTING DEFENDANT'S MOTION TO QUASH SUBPOENA FOR LLOYD LEVENSON'S DEPOSITION.
III
In his written decision, the trial judge concluded, on the basis of what he referred to as a stipulation, that Kassekert terminated plaintiff's employment while she acted in her capacity as CCC chair - an allegation to which only Kassekert and the CCC "stipulated" - that because plaintiff had not contested this agency determination, he failed to exhaust administrative remedies and his action could not therefore be pursued in the trial court. As the trial judge held:
This [c]ourt is satisfied that it does not have jurisdiction over this matter. The Supreme Court . . . has vested review of State administrative actions exclusively in the Appellate Division. Accordingly, the Appellate Division's exclusive role in reviewing administrative actions cannot beAlthough the trial judge referred to both the lack of jurisdiction and plaintiff's failure to exhaust his administrative remedies as two different deficiencies, in fact the judge's discussion reveals those two perceived difficulties were in fact based on the same circumstance — the judge's belief that plaintiff was required to appeal the legitimacy of his employment termination to this court instead of filing suit in the trial court.
undermined by filing an action in the [t]rial [c]ourt. Furthermore, the failure of the [p]laintiff to exhaust his remedies serves as an absolute bar to all of his claims, including the claim of wrongful termination. Here, [p]laintiff failed to contest the determination of the [CCC] below, and subsequently failed to file a timely appeal in the Appellate Division, which was the only proper venue available for the review of the final administrative determination . . . . Thus, since this [c]ourt does not have jurisdiction to determine whether [plaintiff] was properly terminated by the [CCC], the common law causes of action cannot be considered by this [c]ourt until that issue is resolved.
[Citations and internal quotations omitted.]
In either event, the trial judge was mistaken. Indeed, even if we were to agree that the proper forum for plaintiff's claims was this court, dismissal was inappropriate. Upon a determination that a trial court lacks jurisdiction because a civil complaint for damages actually disguises an appeal from an agency determination, a trial judge should transfer the action to this court pursuant to Rule 1:13-4(a). See N.J. Dental Ass'n v. Metropolitan Life Ins. Co., 424 N.J. Super. 160, 167 (App. Div.), certif. denied, 210 N.J. 261 (2012). In circumstances where part of a complaint may be interpreted as seeking judicial review of administrative action or inaction, only that part should be transferred. See Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 399-400 (App. Div. 2006). And, if the disposition of the claims not transferred is dependent on our review of administrative action or inaction, the trial court action may be stayed pending our ruling. In any event, dismissal is not a proper disposition when a plaintiff mistakenly files a complaint in the trial court when, in reality, he seeks review, in whole or in part, of a final agency decision.
Having said that, we do not conclude transfer should now occur because the trial judge misapprehended the nature of the action. That is, although there may have been challenges to the manner of his termination that could have been brought before the CCC — a question we need not decide — plaintiff has chosen not to pursue any such remedy. He does not seek rescission of his termination; his complaint demands only damages and his counsel confirmed during oral argument in this court that plaintiff does not seek reinstatement nor any other remedy that the CCC might have been empowered to provide had he sought relief in that agency. Plaintiff seeks only damages based on his allegation that termination violated CEPA or was otherwise wrongful. That was a claim cognizable in the trial court — not the CCC — and is a claim unimpacted by whether the method or mechanics of plaintiff's termination were proper. In fact, plaintiff's pleaded claims are only cognizable in the trial court. As our Supreme Court held in Campione v. Adamar of N.J., Inc., 155 N.J. 245, 260-61 (1998), although the CCC "has primary jurisdiction to resolve issues concerning the interpretation of the [Casino Control] Act,[] [its] regulations, and a casino's . . . internal controls," the Casino Control Act has not delegated to the agency the power to adjudicate "common-law claims."
The only claim for relief other than damages is that request in the ad damnum clause of plaintiff's complaint that the court enter "[a]n injunctive order for [d]efendants to purge their records of any reference of any wrongdoing by [p]laintiff."
N.J.S.A. 5:12-1 to -142.
The trial judge asserted that Kassekert and the CCC "stipulated" that Kassekert was acting as CCC Chair when she terminated plaintiff's employment. A fact, however, cannot be stipulated without the agreement of all interested parties. See Schere v. Twp. of Freehold, 150 N.J. Super. 404, 407-08 (App. Div. 1977) (holding that "for a stipulation to afford a basis for a judicial decision, its terms must be definite and certain and it is essential that they be assented to by the parties or those representing them"); see also Baumann v. Munn, 134 N.J.L. 548, 551 (E. & A. 1946); Kurak v. A.P. Green Refactories Co., 298 N.J. Super. 304, 325 (App. Div.), certif. denied, 152 N.J. 10 (1997). And the record fails to disclose that any parties other than Kassekert and the CCC "stipulated" as to the hat she was wearing when plaintiff's employment was terminated. Moreover, despite the judge's conclusion that this "fact" was undisputed, there is evidence in the record to suggest that Kassekert acknowledged she terminated plaintiff in her self-assumed capacity as Tropicana's IAC. Plaintiff was entitled to the trial judge's assumption of the truth of this assertion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's assertion is further supported by the parties' conduct. Nothing about Kassekert's determination suggested it was a final decision of the CCC because other CCC members did not participate, vote or conduct an independent investigation into the issues raised by Giannantonio and Hughes, see N.J.S.A. 5:12-73(d) (declaring that a "majority of the full commission shall determine any action of the commission"), and notice was not given to plaintiff of a formal agency hearing.
The judge apparently based his determination that this allegation was stipulated on the following colloquy between him and counsel for Kassekert and the CCC at oral argument:
THE COURT: Can we settle one thing right now? Are you able to stipulate on the record that [Kassekert] was acting on behalf of the CCC?We note that Kassekert and the CCC have not argued in their appeal brief that an enforceable stipulation was reached on this point.
MR. JOSEPHSON: She was acting on behalf of the CCC, absolutely.
THE COURT: Okay. There's one fact out of the way.
We, thus, conclude that to the extent there may actually have been agency action regarding plaintiff's termination, that decision has no bearing on whether plaintiff's termination occurred in violation of CEPA or any other statutory or common law ground that will support plaintiff's claims. The judge, therefore, erred in concluding the CCC had jurisdiction over this matter. Plaintiff conceded, through his attorney at oral argument, that he has no interest in whatever remedy was available to him if he had a right at some point to a final agency determination and review of that determination by this court. Consequently, the jurisdictional/exhaustion ground upon which the judge relied was mistakenly conceived and erroneously applied.
IV
Recognizing the possibility that we might reject the procedural bar to plaintiff's claims that was applied by the trial judge, defendants have argued there is no merit to plaintiff's statutory and common law claims for a number of other reasons. They claim we may affirm the dismissal on grounds other than those relied upon by the trial judge. To be sure, we are entitled to affirm orders or judgments for reasons other than those expressed by a trial court. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); Voellinger v. Dow, 420 N.J. Super. 480, 483 (App. Div.), certif. denied, 208 N.J. 599 (2011). But the judge's "alternative" rulings were cursory and failed to sufficiently illuminate the content of the record on those other points. As a result, we decline to ascertain whether there are other grounds that would support summary judgment. We add only the following comments for future guidance.
A
First, the judge adopted a mistaken view of CEPA in observing that plaintiff failed to present sufficient evidence of an unlawful termination. In his written opinion, the judge stated that courts will not "substitute [their] own investigation of the underlying employment situation for that conducted by the employer" and an employee "cannot ask [a court] to make the ultimate managerial decision as to whether the employee should have been terminated." Certainly, as a general matter, it is an employer's decision to retain or terminate an employee and, with respect to at-will employees, an employer may terminate with or without cause. See Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397-98 (1994); Lapidoth v. Telcordia Techs., Inc., 420 N.J. Super. 411, 420-21 (App. Div.), certif. denied, 208 N.J. 600 (2011). That does not mean that all reasons adopted by an employer for terminating an employee are beyond a court's power to redress. To the contrary, an employer may not terminate an employee on the basis of race, religion, age or other grounds covered by the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and an employer may not terminate an employee in retaliation for the employee's blowing the whistle on the employer's unlawful or improper conduct, as alleged here.
In a nutshell, even if an employer had a good reason for terminating an employee, an employer violates the LAD or CEPA when terminating that employee for one of the reasons prohibited by those acts. Accordingly, the judge's general statements regarding the power of an employer to terminate an at-will employee merely beg the question as to whether plaintiff presented a valid and maintainable CEPA claim or a valid claim based on his other pleaded statutory and common law grounds.
The trial judge did not otherwise address the viability of plaintiff's CEPA claim or any of his other pleaded claims. Although we are entitled to scan the record to determine whether summary judgment might otherwise be appropriate and the order entered otherwise sustainable, Isko, supra, 51 N.J. at 175, we are loathe to do so when the trial judge has failed in the first instance to examine the issues and when, for the most part, the parties have been distracted in this appeal by the judge's erroneous ruling on jurisdiction grounds. See, e.g., Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008).
We also decline the opportunity to determine whether summary judgment was appropriate on other grounds because of the confounding nature of the evidence concerning the decision to terminate plaintiff's employment. That is, it is logically helpful in ascertaining whether employment termination was the result of a CEPA violation or some other wrongful animus to know who it was that made the decision to terminate the employee. Here, as we briefly outlined earlier, concerns about the installation of a new system were expressed by the CCC's investigator that led to further inquiry by Hughes and Giannantonio, who then met with Stein. Stein would appear to have been the individual with the power to hire and fire, but he only authorized plaintiff's suspension at the behest of and through the information provided by Giannantonio and Hughes. Kassekert then terminated plaintiff's employment but, as we have repeatedly observed, there is a dispute as to whether she acted on behalf of the CCC or as Tropicana's IAC.
With so many individuals directly or indirectly involved in the process, determining whether this confluence of thought concerning plaintiff's continued relationship with Tropicana permits or precludes a factfinder from identifying a basis for liability is more than may be expected as the matter presents itself to us and may very well be beyond what the summary judgment process would allow following today's judgment.
And the matter is not as simple as merely ascertaining who it was that terminated plaintiff's employment, identifying that individual's role and then determining whether that individual acted contrary to CEPA. The net of liability cast by CEPA is broader than that. See Bleumer v. Parkway Ins. Co., 277 N.J. Super. 378, 412 (Law Div. 1994). N.J.S.A. 34:19-3 declares that "[a]n employer" may not take retaliatory action against an employee on any of the prohibited grounds. That does not mean that the trial court must determine the identity of the employer when termination occurred because the Legislature defined "employer" for CEPA purposes as meaning:
any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent and shall include all branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.As the matter is presented to us, not one defendant may lay claim to falling outside the scope of this definition.
[N.J.S.A. 34:19-2(a).]
We, thus, find no solid ground upon which the dismissal of plaintiff's CEPA claim and other related claims may rest.
B
The trial judge alternatively determined that plaintiff's "common law causes of action" should be dismissed as to Kassekert and the CCC because plaintiff failed to serve a tort claim notice pursuant to N.J.S.A. 59:8-8. The judge also added that "even if [p]laintiff timely filed the tort claim notice, the immunity set forth in the Tort Claims Act[] would insulate" Kassekert and the CCC "from liability"; the judge did not cite any provision to support his view of tort claim immunity here and, indeed, said nothing more about immunity than what we have just quoted from his opinion, although a later portion of his opinion could be interpreted as concluding that our inapposite decision in Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108 (App. Div. 2009) warranted the application of tort claims immunity to these two defendants.
N.J.S.A. 59:1-1 to 12-3.
As we have repeatedly observed, there is evidence to suggest that Kassekert was not acting in her public official capacity when she terminated plaintiff's employment. That is an issue that will have to be decided following our remand; it may even be helpful for the trial court to sever that issue and attempt to decide it independently. It is only if Kassekert is found to have acted in her capacity as CCC Chair that her entitlement to immunity under the Tort Claims Act is worth examining; in addition, if Kassekert is found not to have acted in a public capacity, it cannot be said that the CCC had any involvement in plaintiff's termination and, in that circumstance, the action against the CCC should be dismissed.
Defendant Stein has not argued and the trial court did not conclude that Stein is entitled to tort claims immunity.
We lastly, in this regard, make only brief mention of the trial judge's determination that plaintiff failed to serve a tort claim notice pursuant to N.J.S.A. 59:8-8. We first observe that Kassekert and the CCC have not argued in this appeal that they were not served with a tort claim notice or, if they were not, that this constitutes a basis for affirming the summary judgment entered in their favor. Moreover, the record on appeal contains copies of a December 8, 2008 letter and a notice of claim addressed to the CCC and Stein that would appear to meet the requirements of N.J.S.A. 59:8-8.
It appears from the record that these documents were not before the trial judge when he ruled on the summary judgment motions. Plaintiff has explained that summary judgment was not sought by defendants on this ground; as a result, when his attorney was asked about the service of a notice of claim in the trial court, he replied that he was not sure. It thus appears that the trial judge may have decided this precise question sua sponte and, if so, wrongly.
In light of the uncertain record regarding the service of a notice of tort claim and the application of immunity provisions of the Tort Claims Act, we conclude it would be inappropriate for this court to attempt to resolve any of these questions as a matter of law.
C
Defendants have also argued that there is no evidence of whistleblowing activity and summary judgment might validly rest on that alone. The trial judge said nothing about the CEPA allegations that plaintiff had asserted. Again, we conclude that these matters are best left to the trial judge's analysis in the first instance following today's decision.
We note that plaintiff asserted, in a certification contained in plaintiff's appendix in this appeal, that he complained of what he believed were unlawful actions occurring at the Tropicana — such as the absence of an IAC — and that his termination was in retaliation. As with many things about the state of the record in the trial court, we are uncertain whether this certification was before the trial judge when he ruled; a certification of plaintiff's attorney incorporated in plaintiff's appendix suggests that the certification enumerating the alleged whistleblowing activities was not part of the moving or opposing papers placed before the trial judge. This — as well as whether the so-called whistleblowing activities delineated by plaintiff constitute sufficient grounds for a CEPA claim — are yet additional reasons why we should not accept the invitation to find other grounds upon which we might affirm the order under review.
D
For these reasons, we are unable to determine that there are other grounds for judgment in favor of defendants on the CEPA claim or on the claims that may ultimately be barred by an election of a CEPA remedy. We also are unable to conclude that Kassekert and the CCC are entitled to immunity or, for that matter, whether Kassekert even acted as a public official in the steps and determination to terminate plaintiff's employment.
V
In Point VIII, plaintiff argues he was erroneously deprived of the discovery of documents he sought from defendant Stein.
Plaintiff served a demand for documents on defendant Stein, who responded with a "privilege log" identifying items he claimed were undiscoverable as work product or as falling within the attorney-client privilege arising from his trustee or conservator positions. This log grouped the items sought into five categories: (1) documents passing between Stein and Giannantonio; (2) emails to and from a Human Resources employee to Giannantonio; (3) documents from Tropicana employees to members of Stein's law firm; (4) documents passing between Stein and Hughes; and (5) interoffice communications between Stein and members of his law firm. Plaintiff moved to compel the production of all documents, arguing they were authored before his complaint was filed and, therefore, were not due to or in anticipation of any litigation; Stein cross-moved for a protective order.
The discovery judge denied plaintiff's motion without prejudice. He found that the documents were entitled to "a reasonable expectation of confidentiality" but also suggested he might "take a second look" after further discovery.
The judge who ruled on the discovery motions was not the same judge who ruled on the summary judgment motions.
In considering the disposition of a discovery dispute, we generally defer to the trial court's disposition "unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); see also Bender v. Adelson, 187 N.J. 411, 428 (2006); Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997).
The attorney-client and work-product privileges do not generally apply to documents created during the course of an internal investigation, especially when a defendant uses that investigation as an affirmative defense; such documents are generally not created in anticipation of litigation but to comply with an employer's internal investigative procedures and policies. Payton, supra, 148 N.J. at 551-55. In Payton, the Court determined that the attorney-client privilege was waived once the employer placed its investigation at issue by asserting it as an affirmative defense in a sexual harassment suit. Id. at 551-54. The Payton Court also rejected application of the work product privilege since the investigation had begun months before the plaintiff's suit had started and the plaintiff could prove substantial need for the documents relating to the investigation. Id. at 554-55. In addition, the Court held that an in camera review of the documents was required to determine whether or to what extent the attorney-client or work-product privileges might apply. Id. at 552-55.
Because it presently appears that some or all defendants may rely upon the investigation of plaintiff in defending against his allegations, the asserted privileges may have no bearing on the discovery dispute. In any event, we observe that the discovery judge neither conducted an in camera review nor did he close the door to further consideration of the discovery dispute. As a result, plaintiff is entitled to a final disposition of his discovery requests based upon the principles discussed in the cases cited above and following an in camera review of the documents that have yet to be turned over.
VI
We lastly turn to plaintiff's arguments in his Points III, VII, and IX and conclude they are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only a few brief comments regarding Points III and VII.
As to the former, we find no merit in plaintiff's argument that he may pursue a legal malpractice action against defendant Hughes. The facts undisputedly show that plaintiff only sought advice from Hughes concerning the surveillance department's regulatory compliance, that he sought that advice as an employee, and that Hughes gave her advice in her capacity as corporate counsel. There is no evidence that an attorney-client relationship between plaintiff and Hughes was formed beyond their professional work relationship.
As to the latter — the denial of plaintiff's motion to transfer venue in this matter to another vicinage — we find it preposterous that the case may not be fairly decided where venue is currently laid because defendant Stein was once a Justice of the Supreme Court of New Jersey. Indeed, plaintiff has provided no evidence that remotely supports or suggests grounds for such a contention.
In an apparent attempt to instigate a controversy where none appears to exist, plaintiff asserts in his reply brief that he is "curious as to how this court will treat [Stein's] violation of the Rules in that his opposition brief violates R. 2:6-2(a)(6)." That Rule allows an appellate brief's inclusion of a preliminary statement that "shall not exceed three pages and may not include footnotes or, to the extent practicable, citations." Ibid. Stein's preliminary statement is, in fact, three pages in length and contains no footnotes or citations; it is in full compliance with Rule 2:6-2(a)(6). We, thus, find perplexing and unsupportable plaintiff's claim to the contrary.
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VII
To summarize, we affirm: the denial of plaintiff's motion for partial summary judgment; the denial of plaintiff's motion for a transfer of the suit to another vicinage; and the grant of the motion to quash the subpoena referred to in Point IX. We reverse the grant of summary judgment on behalf of defendants CCC, Kassekert, Stein, Giannantonio and Hughes, with the exception that we affirm the grant of summary judgment on Hughes' behalf on the legal malpractice claim. And we vacate the order denying turnover of documents to which defendant Stein claimed a privilege and remand for further consideration of plaintiff's entitlement to the discovery of those documents.
Affirmed in part; reversed in part; vacated in part; and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION