Opinion
Civil Action No. 20-03900 (FLW)
10-26-2021
FRANK ROTELLA, Plaintiff, v. SMITHERS PDS, LLC, Defendant.
*NOT FOR PUBLICATION*
OPINION
WOLFSON , Chief Judge :
Frank Rotella ("Plaintiff") brings suit against Smithers PDS, LLC ("Defendant"), his former employer, under the New Jersey Conscientious Employee Protection Act ("CEPA"). N.J.S.A. § 34:19-1, et seq. Rotella alleges that Smithers terminated him after he complained about a potential fraud. Smithers moves for summary judgment, arguing that Rotella has not satisfied three of the four elements of a CEPA claim: he did not reasonably believe that the alleged fraud violated conduct proscribed by CEPA, he did not perform a whistle-blowing act as defined in CEPA, and in any event, his complaint is not casually connected to his termination. Smithers argues in the alternative that it had a legitimate, non-retaliatory reason to terminate Rotella: poor job performance. For the following reasons, I GRANT Smithers' motion and DISMISS Rotella's Complaint.
I. FACUAL BACKGROUND AND PROCEDURAL HISTORY
Because I write primarily for the parties, I recite only the facts necessary to my discussion. Xiao Xia Chen v. Att'y Gen. of U.S., 354 Fed. App'x. 731, 732 (3d Cir. 2009); United States v. Palmisano, 559 Fed. App'x. 135, 136 (3d Cir. 2014). Smithers is a pharmaceutical company. Def. Statement of Material Facts ("SUMF"), ¶ 1. In July 2019, it contracted with Client XYZ for scientific research and testing at its new bioanalytical laboratory in Ewing, New Jersey. Id. ¶¶ 18-19. Smithers initially intended Rotella to be the Project Manager, but Dr. Anna Ilinskaya ultimately filled that role, with Rotella serving in another capacity. Id. ¶¶ 38-48. While performing her work for Client XYZ, Dr. Ilinskaya remained available for other clients, which is the subject of the instant dispute. Id. ¶¶ 138-47.
The parties have agreed to use a fictitious name for Client XYZ to preserve its confidentiality.
According to Rotella, Dr. Ilinskaya could not work for any of Smithers' other clients, so long as she was Project Manager for Client XYZ. Id. ¶¶ 121-22. To that extent, Rotella claims, Smithers "engage[d] in a pattern of double dipping/double billing" and committed "fraud as to Client XYZ." Am. Compl., ¶ 36. Beginning on or about November 13, 2019, Rotella complained about this to President Ira Dubey. Def. SUMF, ¶ 120. Four months later, on February 18, 2020, Smithers terminated Rotella after 14 months of employment. Id. ¶ 108. Rotella alleges that Smithers fired him because he reported the alleged fraud. Smithers claims that it fired Rotella because he "failed to properly manage [the Ewing facility]," impermissibly delegated his responsibilities, demonstrated "a lack of scientific understanding," and enabled a hostile work environment, "resulting in complaints from multiple employees," an HR investigation documenting "serious concerns about [his] ability to lead," and a recommendation that he be terminated. Id. ¶¶ 49-59, 60-98.
On April 10, 2020, Rotella filed a one-count Complaint alleging a CEPA violation. Smithers moved for summary judgment on March 12, 2021. In its motion, Smithers advances two arguments. First, Rotella has not met three of the four elements of a CEPA claim: his fraud complaint is not protected by CEPA as a matter of law; even if it were, he had no reasonable basis for believing a fraud occurred; and furthermore, his complaint is not causally connected to his termination. Second, Smithers argues that it had a legitimate, non-retaliatory reason to terminate Rotella: "serious and growing concerns regarding his performance." Def. Br., at 4.
II. LEGAL STANDARD
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, . . . demonstrate the absence of a genuine issue of material fact" and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quotations omitted); Fed. R. Civ. P. 56(a). An issue is "genuine" when "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" when it "might affect the outcome of the suit under the governing law." Id. I construe all facts in the light most favorable to the nonmoving party, Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998), whose evidence "is to be believed," and I make "all justifiable inferences . . . in [its] favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. That party may discharge its burden by "showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (quotations and citations omitted). The nonmoving party must then identify, by affidavits or otherwise, specific facts showing that there is a triable issue. Celotex, 477 U.S. at 324. To do so, the nonmoving party "may not rest upon the mere allegations or denials of the . . . pleading[s]." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quotations omitted). Instead, "[it] must make a showing sufficient to establish the existence of [every] element essential to [its] case, and on which [it] will bear the burden of proof at trial." Cooper v. Sniezek, 418 Fed. App'x. 56, 58 (3d Cir. 2011) (quotations and citations omitted). "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, [it] must be more than a scintilla," Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005), and conclusory declarations, even if made in sworn statements, will not suffice. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
III. DISCUSSION
CEPA is New Jersey's whistle-blowing statute. The New Jersey Legislature enacted it 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." Abbamott v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431 (1994). Once passed, it was described as the "most far-reaching" statute of its type in the country. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1988). In relevant part, it reads:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer . . . that the employee reasonably believes:
1) is in violation of a law, or a rule or regulation promulgated pursuant to law; or
2) is fraudulent or criminal;
. . .
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
1) is in violation of a law, or a rule or a regulation promulgated pursuant to law;
2) is fraudulent or criminal; orN.J.S.A. § 34:19-3c.
3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
To establish a prima facie CEPA violation, "it is not enough" that an employee simply "'blow the whistle'" on conduct with which he disagrees. Carmona v. Restorts Int'l Hotel, Inc., 189 N.J. 354, 371 (2007). The employee must demonstrate that: (1) he objected to, or refused to participate in an activity, policy or practice which he reasonably believed violated either a law, rule, regulation, was fraudulent or criminal or violated a public policy; (2) he performed a "whistle blowing" activity as described in N.J.S.A. § 34:19-3c; (3) an adverse employment action was taken against him; and 4) a causal connection existed between his whistle-blowing activity and the adverse employment action. Wheeler v. Twp. of Edison, 326 Fed. App'x. 118, 123 (3d Cir. 2009); Dzwonar, 177 N.J. at 462; Smith v. TA Operating LLC, No. 10-2563, 2010 WL 3269980, at *3 (D.N.J. Aug. 17, 2010).
If an employee satisfies these elements, an employer can counter by advancing a legitimate, nondiscriminatory reason for the adverse action it took. Klein v. Univ. of Medicine and Dentistry of New Jersey, 377 N.J. Super. 28, 38 (App. Div. 2005) (citing Zappasodi v. State, Dept. of Corrections, 335 N.J. Super. 83, 89 (App. Div. 2000)); Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir. 1999). "If the employer is able to articulate a legitimate, nondiscriminatory reason for the [action], the inference of retaliation disappears." Boshko v. Bently Nevada LLC, No. 07-4624, 2009 WL 223417, at *7 (D.N.J. Jan. 28, 2009) (citing Blackburn, 179 F.3d at 92). The burden then shifts back to the employee, "who must show that the employer's proffered explanation is merely a ruse or pretext for unlawful retaliation." Van Haste v. Coram Healthcare Corp., No. 06-4637, 2008 WL 4513864, at *7 (D.N.J. Oct. 1, 2008) (quoting Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 612 (D.N.J. 2003)). Evidence that the employer's action was wrong or mistaken is insufficient at this stage, since the issue is whether the employer took the action for a retaliatory purpose. Id. This framework follows that which courts apply under Title VII of the Civil Rights Act of 1964. Grogiletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990) (describing Title VII as "key source of interpretive authority" for analogous state law claims); Kolb v. Burns, 320 N.J. Super. 467, 479 (App. Div. 1999) (adopting federal court analysis of retaliation claims "as legally sound and consistent with New Jersey's general treatment of claims asserted under anti-discrimination [legislation]").
Finally, since CEPA "promotes a strong public policy of the State" and is "remedial," it must be "construed liberally." Abbamont, 138 N.J. at 431; Sabella v. Lacey Township, 204 N.J. Super. 55, 59 (App. Div. 1985); Lepore v. National Tool & Mfg. Co., 115 N.J. 226, 228 (1988) ("We view this legislation as a reaffirmation of this State's repugnance to an employer's retaliation against an employee who has done nothing more than assert statutory rights and protections and a recognition by the Legislature of a preexisting common-law tort cause of action for such retaliatory discharge.") (quotations and citation omitted); D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 265 (App. Div. 1988) ("In New Jersey, we are deeply committed to the principle that an employer's right to discharge an employee carries a correlative duty to protect his freedom to decline to perform an act that would constitute a violation of a clear mandate of public policy."). Here, Smithers argues that Rotella "cannot establish the first, second, or fourth elements of his CEPA claim and, in any event, [the company] had a legitimate, non-retaliatory basis for his termination." Def. Br., at 10. I agree that Rotella fails to establish the first CEPA element as a matter of law, which dooms his claim.
The first CEPA element requires a plaintiff to show that he complained about an act which he reasonably believed to violate a law, rule, regulation, was fraudulent or criminal or violated a public policy. While the New Jersey Supreme Court does not "expect whistleblowers to be lawyers on the spot," Chiofalo v. State, 238 N.J. 527, 544 (2019); Mehlman, 153 N.J. at 193 (holding that CEPA's goal is "not to make lawyers out of conscientious employees"), element one "impose[s] an additional procedural hurdle, requiring that when a plaintiff brings a CEPA claim pursuant to N.J.S.A. § 34:19-3c, the trial court, as a threshold matter, must 'first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true.'" Dzwonar, 177 N.J. at 463 (citation omitted) (collecting cases) (emphasis in original). Indeed, it is "a pivotal component of a CEPA claim" that a trial court identify "authority in one or more of the categories enumerated in the statute that bears a substantial nexus to [the] claims" at issue, or else there is no "standard against which the conduct of the defendant may be measured." Hitesman, 218 N.J. at 32; Chiofalo, 238 N.J. at 543 (holding that trial courts must "take care that the activity complained about meets this threshold" (quotations and citation omitted); Caver v. City of Trenton, 420 F.3d at 243, 254 (3d Cir. 2005) (recognizing "the role of a trial judge in addressing the first prong of the CEPA standard" to include determining whether there is "a substantial nexus" between the alleged misconduct and a law or public policy); Blizzard v. Exel Logistics North America, Inc., No. 02-4722, 2005 WL 3078175, at *7 (D.N.J. Nov. 15, 2005) ("In order for a plaintiff to meet the threshold to withstand summary judgment . . . . a court must first . . . determine that there is a substantial nexus between the complained-of conduct and the law or public policy identified by the court or the plaintiff."); Parson v. Home Depot USA, Inc., No. 13-4817, 2014 WL 820066, at *2 (Mar. 3, 2014) ("[A] plaintiff cannot survive [even] a motion to dismiss by merely asserting that some conduct is unethical; rather, he must establish a "substantial nexus" to conduct proscribed by CEPA). In short, "a close relationship between the alleged misconduct and the supposedly violated law or public policy needs to exist" to defeat "judgment for the defendant." Safonof v. DirectSat USA, No. 19-07523, 2020 WL 1527946, at *3 (D.N.J. Mar. 31, 2020) (dismissing complaint where plaintiff offered only a "conclusory statement that Defendant's actions violated . . . as common law fraud").
Rotella alleges in his Complaint that Smithers retaliated against him after he claimed that Dr. Ilinskaya was "double dipping" and "double billing," which he believed to constitute fraud. But "[t]he thrust of [Rotella's] case, as is evident" from his "brief and the record compiled during discovery, is that Smithers did not comply with provisions in the contract with Client XYZ, which provided (in Rotella's estimation) that Dr. Ilinskaya may not work for anyone else at the Ewing Facility. Dzwonar, 177 N.J. at 467. In fact, a review of the record indicates that Rotella repeatedly framed his complaint to Smithers in this manner. In conversations with President DuBey between November 2019 and February 2020, for instance, Rotella testified that he sent "the same message over and over again, just, you know, that we weren't complying with our contract. We weren't complying with the contract." Def. SUMF, ¶¶ 124, 130. Similarly, on November 13, 2019, Rotella testified that "[Dr. DuBey] and I continued there and we talked a little bit more [and] around that time is when I talked to - to [Dr. Dubey] about the whole - the whole situation with [Dr. Ilinskaya] and how she's, you know, not fulfilling the obligations of the contract to XYZ." Pl. Dep., at 203:4-14.
Contrary to Rotella's primary theory of this case, "as a matter of law," breach of contract—without more—does not constitute "an objectively reasonable belief [that a CEPA violation occurred]." Dzwonar, 177 N.J. 468 (affirming trial court ruling that "a contract between the union and its members" is not a "law, rule, or regulation pursuant to CEPA"); Smith, 2010 WL 3269980, at *4 (finding, in light of Dzwonar, that an employee handbook is "merely a company policy, or at best a contractual agreement," and as such, cannot "constitute law[s], rule[s], or regulation[s] as required by the language of CEPA") (alterations in original); Competello v. Labruno, No. 02-664, 2005 WL 1637907, at *8 (D.N.J. July 12, 2005) (rejecting claim that violation of police department's internal rules supported a CEPA claim since there was "no evidence that these regulations had the 'force of law'" as required by statute); Fischer v. G4S Secure Solutions USA, Inc., 614 Fed. App'x. 87, 92 (3d Cir. 2015) (same, but "company policy"); Hitesman v. Bridgeway, Inc., 218 N.J. 8, 24-41 (2014) (same, but nursing code of ethics, employee handbook, and a patient statement of rights).
By contrast, a CEPA claim can sound in fraud, although "[t]here are relatively few published decisions relating to fraud as the basis of [such a] claim." Battaglia, 214 N.J. at 557. A CEPA fraud claim can also rest on allegations about the conduct of a coworker, as with Dr. Ilinskaya. Estate of Roach v. TRW, Inc., 164 N.J. 598, 612-13 (2000). And the focus is simply on whether the employee making the complaint reasonably believed that the activity was occurring and that it amounted to fraudulent conduct. Id. at 613; Mehlman, 153 N.J. at 193-94; Battaglia, 214 N.J. at 557. Still, it remains "critical to identify the evidence that an aggrieved employee believes will support the CEPA recovery with care and precision." Battaglia, 214 N.J. at 559. "Vague and conclusory complaints . . . are not the sort of things that the Legislature intended to be protected by CEPA." Id. Given this standard, Rotella has failed to establish fraud as the basis of his CEPA claim for at least two reasons.
First, common law fraud requires "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005) (quotations omitted); Allstate New Jersey Ins. Co. v. Lajara, 222 N.J. 129, 147 (2015). "[E]ven a lay definition" requires "some sort of misrepresentation." Daniels v. Atl. Cmty. Bankers Bank, No. 552, 2019 WL 4274039, at *10 (Pa. Super. Ct. Sept. 10, 2019) (holding, in a CEPA case under Dzwonar, that trial court has "gatekeeping function" to ensure plaintiff alleges a violation of at least something resembling a law, rule, or regulation) (citing Lajara, 229 N.J. at 147). Yet, Rotella's entire theory rests on the notion that merely "signing a document that says one thing and—and then going against that document" constitutes a fraud in the sense of CEPA. Def. SUMF, ¶ 125. That is, Rotella does not offer anything more than a recitation of his breach of contract claim to establish a "sufficient nexus" with fraud or to show that Smithers' actions "closely resemble" it, such as that Smithers never intended to honor the contractual obligations it purportedly owed to Client XYZ or it falsely promised that Dr. Ilinskaya would only work on projects for Client XYZ (i.e., fraud in the inducement). Dzwonar, 177 N.J. at 464; Patterson v. Glory Foods, Inc., 555 Fed. App'x. 207, 210 (3d Cir. 2014) (finding general complaints that forgiving client debt was part of a fraudulent scheme insufficient under CEPA).
Second, under the economic loss doctrine, "claims for fraud in the performance of a contract, as opposed to fraud in the inducement of a contract, are not cognizable [in] New Jersey." Bracco Diagnostics, Inc. v. Bergen Brunswig Drug Co., 226 F. Supp. 2d 557, 564 (D.N.J. 2002) (explaining that "to break a promise is to breach a contractual duty," thus foreclosing fraud in the performance, while "to falsely state that one intends to honor a promise," as with fraud in the inducement, "is a misstatement of present fact and breaches a separate and extraneous duty not to commit fraud") (quoting Emerson Radio Corp. v. Orion Sales, Inc., No. 95-6455, 2000 WL 49361, at *7 (D.N.J. 2000), aff'd in part, rev'd in part on other grounds, 253 F.3d 159 (3d Cir. 2001)); Lithuanian Commerce Corp. v. Sara Lee Hosiery, 219 F. Supp. 2d 600, 607 (D.N.J. 2002) (holding that, with "a 'fraud in the inducement' claim, . . . the plaintiff is not prohibited from pursuing simultaneous tort and contract claims") (collecting cases); Rao v. Anderson Ludgate Consulting, LLC, No. 15-3126, 2016 WL 3647998, at *3 (D.N.J. July 7, 2016) (same, and dismissing count involving fraud in the performance). This doctrine affirms the conceptual distinction between a misrepresentation of a statement of intent at the time of a contract, which then induces detrimental reliance on the part of the promisee, and the subsequent failure of the promisor to do what she has promised. G & F Graphic Servs., Inc. v. Graphic Innovators, Inc., 18 F. Supp. 3d 583, 593 (D.N.J. 2014).
The economic loss doctrine helps maintain the "critical" distinction between tort and contract claims, Saltiel v. GSI Consultants, 170 N.J. 297, 310, 314 (2002), by eliminating recovery on "a contract claim in tort clothing." SRC Constr. Corp. v. Atl. City Hous. Auth., 935 F. Supp. 2d 796, 801 (D.N.J. 2013).
Based on the record, and drawing all inferences in his favor, Rotella has established at most fraud in the performance of the contract with Client XYZ, which is unavailable in New Jersey. This is so because, in Rotella's own words, the factual foundation for his fraud claim is that Dr. Ilinskaya did not refrain from working for other clients during performance of the relevant contract—not that Smithers made "pre-contractual misrepresentations" during its negotiations with Client XYZ about Dr. Ilinskaya's role or duties which led Client XYZ to contract with it. Compare Bracco, 226 F. Supp. 2d at 564, with G & F Graphics, 18 F. Supp. 3d at 593. In other words, Rotella presents no evidence that Smithers induced Client XYZ to enter into a contract for lab services by misrepresenting Dr. Ilinskaya's availability, which would necessarily be "extraneous to the contract" and actionable under New Jersey law, but rather that she did not meet her obligations to Client XYZ under the contract, thereby violating its provisions. This breach could not have taken place "prior to the execution of the contract," and hence, is not actionable as common law fraud. Id. Accordingly, Rotella's complaint to Smithers (assuming arguendo that it rises to the level of fraud in the performance) is not protected under or proscribed by CEPA, and Rotella has failed to establish the first element of his claim as a matter of law.
To be sure, Rotella has not attempted to establish that Smithers' breach of contract or fraud in the performance (assuming the truth of those allegations) violates a "clear mandate of public policy." MacDougall v. Weichert, 144 N.J. 380, 391 (1996). For purposes of CEPA, "public policy has been defined as that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good." Mehlman, 153 N.J. at 187. "[A] clear mandate of public policy conveys a legislative preference for a readily discernable course of action that is recognized to be in the public interest." Maw v. Advanced Clinical Commc'ns, 179 N.J. 439, 444 (2004). Public policy "is not concerned with minutiae, but with principles." Mehlman, 153 N.J. at 187. And the "clear mandate" must exist to prevent harm to the public, rather than to protect exclusively private interests. Dzwonar, 177 N.J. at 469. Given this law, even if Rotella claimed that Dr. Ilinskaya's actions violated public policy in the sense of CEPA, such a conclusion would be unlikely.
This failure, in turn, proves to be fatal. See, e.g., Patterson, 555 Fed. App'x. at 212 (affirming summary judgment because "the District Court correctly concluded that [plaintiff] cannot meet the first element of a CEPA claim," and holding that "assertions of wrongdoing, unsupported by any evidence, are far too speculative to defeat summary judgment"); Hitesman, 218 N.J. at 31 ("If the trial court determines that the plaintiff's proofs failed to establish the substantial nexus [with a law, rule, regulation, or public policy], it should grant the defendant's motion, and dismiss the [ ] claim."); Dzwonar, 177 N.J. at 468 ("The trial court can and should enter judgment for a defendant when no such law or policy is forthcoming."); Gaglione v. New Cmty. Corp., No. 1015-06, 2007 WL 2141429, at *3 (N.J. Super. Ct. App. Div. July 27, 2007) (affirming summary judgment, under Dzwonar, where plaintiff offered only "ephemeral claim" that defendant may have violated federal tax law); Young v. Schering Corp., 275 N.J. Super. 221 (App. Div. 1994) (affirming dismissal where challenged conduct "was not unlawful or wrongful in any way," and "did not contravene any clear mandate of public policy"); see also Russelman v. ExxonMobil Corp., No. 12-752, 2012 WL 3038589, at *4 (D.N.J. July 25, 2012) ("Plaintiff's Amended Complaint fails to identify a specific expression of public policy, and . . . failure to do so empowers the court to grant a motion to dismiss."); Brangan v. Ball Plastic Container Corp., No. 11-5470, 2012 WL 1332663, at *4 (D.N.J. Apr. 17, 2012) (dismissing complaint because "Plaintiff has not identified the clear mandate of public policy, and thus failed to establish the first element of the prima facie case"); Heffron v. Adamar of New Jersey, Inc., 270 F. Supp. 2d 562, 574-75 (D.N.J. 2003) (holding that plaintiff cannot rely on vague, self-serving statements unsupported by specific facts in the record at this stage). As such, I grant summary judgment in favor of Smithers.
Even if breaching a contractual provision in and of itself could rise to the level of a CEPA violation, Rotella has not demonstrated a reasonable basis for believing that such conduct actually occurred. CEPA's "reasonable belief" standard is not subjective. Rather, "[i]n order for an employee's belief to be considered 'reasonable,' that belief must be such that a 'reasonable lay person would conclude that illegal activity was going on' or at the very least, is imminent." Capanna v. Tribeca Lending Corp., No. 06-5314, 2009 WL 900156, at *8 (D.N.J. Mar. 31, 2009) (citation omitted). Courts routinely grant summary judgment where plaintiffs fail to satisfy this aspect of element one. See, e.g., Flear v. Glacier Garlock Bearings, Div. of Enpro Industries, Inc., 159 Fed. App'x. 390, 392-93 (3d Cir. 2005). Here, Rotella has not pointed to any evidence that might have provided a reasonable basis for believing that Dr. Ilinskaya could not work for any other clients. See, e.g., Pl. Res. to Def. SUMF, ¶¶ 24-26, 40, 44, 46, 140-141; Def. SUMF, ¶¶ 20-28, 39-44. The same is true for Rotella's fraud in the performance claim, assuming it were actionable: he has not pointed to any evidence that Dr. Ilinskaya double-dipped or double-billed a client. COMP, ¶ 147; Def. SUMF, ¶ 143, 147-48. In fact, Dr. Ilinskaya's timesheets refute that inference. Rotella likewise fails to establish causation. A plaintiff bears the burden of proving that protected activity is "a substantial or determinative, motivating factor" in an adverse employment action. Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 273 (App. Div. 2001); Blizzard, 2005 WL 3078175, at *9 ("[I]t is Plaintiff's burden to establish the causal connection; it is not Defendant's burden to disprove causation."). The Third Circuit has stated that temporal proximity alone can be enough, even up to a few months, if the timeframe is "unusually suggestive." Robinson v. S.E. Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993); Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005). But that is not the case here, given uncontradicted evidence that (1) Rotella's colleagues complained about his leadership abilities prior to his alleged whistle-blowing activity, (2) he underperformed from the start of his employment. including by failing to open the Ewing facility on time without help, train scientists and obtain key equipment, and (3) he was recommended to be fired by an independent HR investigation arising out of hostile work environment allegations made by his employees. See, e.g., Def. SUMF, ¶¶ 27, 50-59, 61-66, 85-86, 92-93, 97-98, 103-04, 106, 108-09, 131-36; Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 362 (App. Div. 2002) (finding plaintiff could not establish a causal connection between protected conduct and adverse action where the "disciplinary actions which plaintiffs asserted as retaliatory were substantiated").
IV. CONCLUSION
Because complaints about a breach of contract (without more) are not protected under CEPA as a matter of law, and Rotella's fraud allegations simply recite a breach of contract, I GRANT Smithers' motion for summary judgment and DISMISS Rotella's Complaint. DATED: October 26, 2021
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge