Kim Allen v. Cape May County (083295) (Cape May County & Statewide)

K
                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                  Kim Allen v. Cape May County (A-49-19) (083295)

Argued October 14, 2020 -- Decided May 12, 2021

PATTERSON, J., writing for the Court.

       This is an appeal as of right based on a dissent in the Appellate Division in an
action brought pursuant to the Conscientious Employee Protection Act (CEPA).

      After defendant County of Cape May (County) declined to renew her contract as
County Purchasing Agent, plaintiff Kim Allen brought this action against the County and
defendant Gerald Thornton, the County Freeholder Director. Plaintiff alleged that
defendants retaliated against her for engaging in CEPA-protected activity arising
from two incidents.

       The first incident related to the County’s selection of workers’ compensation
counsel in 2014. Plaintiff testified that, after law firm Capehart & Scatchard
submitted a bid to serve as counsel specifying only a proposed hourly rate, not the
County’s preferred per-case quote, Jeffrey Lindsay -- Thornton’s stepson and the
Director of Human Resources -- asked her whether a vendor could fax a new
proposal page to supplement its bid. Plaintiff testified that she told Lindsay that it
would be “illegal” to accept a substituted page. She confirmed at her deposition that
“[t]here was no page switched out” in Capehart & Scatchard’s proposal, and that
nothing unlawful occurred. The report created by law firm Ballard Spahr in June
2014 upon its investigation of unrelated allegations by a different employee reflects
that plaintiff asked to be interviewed and raised the issue of the Capehart &
Scatchard proposal. Plaintiff conceded that she did not tell Thornton about her
conversation with Lindsay concerning the proposal. Thornton testified that he read
the report but did not remember whether it summarized any interviews with plaintiff.

        The second incident related to the retention of Ballard Spahr. Plaintiff alleged
that, at an April 2014 meeting with County counsel and other senior officials, she
pointed out that the County’s contract with Ballard Spahr was not the result of
competitive bidding and was “non-fair” and “non-open.” Plaintiff further contended
that, in June 2014, she reviewed a draft contract and resolution regarding Ballard
Spahr’s invoice and advised County counsel they did not comply with competitive
bidding requirements.


                                             1
       On July 14, 2014, County counsel was instructed to prepare a notice to
plaintiff advising of the Board’s intent to discuss her position. The notice was hand-
delivered on July 16, 2014. That same day, plaintiff sent an e-mail to Thornton and
others, expressing concern “with a [pay-to-play] practice” regarding the Ballard
Spahr contract and resolution. On July 24, Thornton told plaintiff she would not be
reappointed. Thornton testified that he considered plaintiff a “mediocre employee”
because four County officials had complained about her performance.

       In her complaint, plaintiff did not identify the provision that was the basis for
either claim. The trial court analyzed plaintiff’s claims as if brought under two
CEPA provisions, N.J.S.A. 34:19-3(a) and -3(c). The court concluded that plaintiff
engaged in CEPA-protected conduct under -3(a) when she informed the Ballard
Spahr investigators about her discussion with Lindsay, but it found that defendants
had established legitimate, non-retaliatory reasons for the decision not to renew her
contract. The court entered summary judgment dismissing plaintiff’s claims.

       The Appellate Division reversed. The majority of the court found genuine
issues of material fact as to the causal nexus between plaintiff’s CEPA-protected
activity and the County’s decision not to reappoint her. The dissenting judge
concurred with the trial court. Based on the dissent, defendants appealed as of right.

HELD: Because it is unclear whether defendants’ motion for summary judgment was
decided based on the CEPA provision on which plaintiff relies, the Court remands
plaintiff’s claim regarding the Capehart & Scatchard proposal to the trial court. As a
matter of law, plaintiff presented no prima facie evidence of a causal nexus between her
comments on the retention of Ballard Spahr and the County’s decision not to renew her
contract. The Court reinstates the order granting summary judgment as to that claim.

1. Before the Court, plaintiff confirmed that her claim premised on the Capehart &
Scatchard proposal is based on N.J.S.A. 34:19-3(c), under which a plaintiff must prove
that: (1) she reasonably believed her employer’s conduct was violating a law or public
policy; (2) she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3(c);
(3) an adverse employment action was taken against her; and (4) a causal connection
exists between the whistle-blowing activity and that action. Once a prima facie case is
established, the employer must rebut the presumption of discrimination with a legitimate
nondiscriminatory reason for the adverse employment action. Plaintiff has the ultimate
burden of proving that the proffered reasons were a pretext. (pp. 16-19)

2. Here, it appears the trial court assumed plaintiff’s conduct would constitute CEPA-
protected conduct if it satisfied either N.J.S.A. 34:19-3(c) or -3(a), a separate provision.
With no clarification from plaintiff as to the governing provision, the court held that her
discussion with the Ballard Spahr investigator “constitutes CEPA-protected conduct
under N.J.S.A. 34:19-3(a),” but did not review that communication under -3(c). As to the


                                             2
remaining elements of the claim arising from the Capehart & Scatchard proposal, it is not
clear whether the trial court relied on -3(a), -3(c), or both provisions. (pp. 20-21)

3. On remand, applying N.J.S.A. 34:19-3(c) and viewing the evidence in the light most
favorable to plaintiff, the trial court should determine whether plaintiff presented prima
facie evidence on each element of plaintiff’s CEPA claim. The trial court should first
consider whether there is a genuine dispute of material fact as to whether plaintiff
reasonably believed that Lindsay’s inquiry was unlawful or contrary to a clear mandate of
public policy. If so, the court should decide whether there is a genuine issue of material
fact as to whether plaintiff conducted a whistle-blowing activity, separately analyzing
each alleged instance of CEPA-protected conduct arising from the Capehart & Scatchard
bid. If the court decides plaintiff engaged in CEPA-protected conduct under N.J.S.A.
34:19-3(c), it should determine whether plaintiff has presented prima facie evidence of a
causal nexus between that activity and the County’s decision not to reappoint her. If so,
the court should determine whether defendants have met their burden to prove that the
County declined to reappoint plaintiff for legitimate, non-retaliatory reasons, or whether a
genuine issue of material fact exists as to pretext. (pp. 21-23)

4. Plaintiff failed to present a prima facie showing of any causal connection between her
statements about the retention of Ballard Spahr and Thornton’s decision not to reappoint
her. Thornton’s decision to recommend that the County not renew plaintiff’s contract
was made before plaintiff’s e-mail was sent, and there is no evidence that Thornton was
aware of either of plaintiff’s previous comments to other County employees about the
retention of Ballard Spahr. The Court does not reach the question of pretext. (pp. 23-26)

       AFFIRMED in part; REVERSED in part. REMANDED to the trial court.

        JUSTICE ALBIN dissents from the remand of the claims related to the Capehart
& Scatchard bid. Justice Albin finds that, on the summary judgment record, there is
sufficient evidence that defendant Cape May County and defendant Freeholder Director
Gerald Thornton retaliated against Kim Allen by not renewing her contract as County
Purchasing Agent because she disclosed suspected unlawful conduct by Thornton’s
stepson, the County’s Director of Human Resources. Viewing the evidence in the light
most favorable to Allen, there is evidence to support all four elements of her CEPA
claims under both N.J.S.A. 34:19-3(a) and (c), Justice Albin writes, and Thornton’s claim
that he had legitimate work-performance reasons for recommending Allen’s non-renewal
is a disputed issue of fact that should proceed directly to a jury. Justice Albin sees no
purpose in a remand but concurs in the remainder of the Court’s decision.

CHIEF JUSTICE RABNER and JUSTICES FERNANDEZ-VINA, SOLOMON,
and PIERRE-LOUIS join in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN
filed a separate opinion, dissenting in part and concurring in part, in which
JUSTICE LaVECCHIA joins.


                                             3
                    SUPREME COURT OF NEW JERSEY
                          A-49 September Term 2019
                                    083295


                                  Kim Allen,

                             Plaintiff-Respondent,

                                       v.

                   Cape May County and Gerald Thornton,

                            Defendants-Appellants.

                      On appeal from the Superior Court,
                             Appellate Division.

                   Argued                        Decided
               October 14, 2020                May 12, 2021


            Jennifer B. Barr argued the cause for appellants (Cooper
            Levenson, attorneys; Jennifer B. Barr and Russell L.
            Lichtenstein, on the briefs).

            Sebastian B. Ionno argued the cause for respondent
            (Ionno & Higbee, attorneys; Sebastian B. Ionno and D.
            Rebecca Higbee, on the brief).


         JUSTICE PATTERSON delivered the opinion of the Court.


      This is an appeal as of right based on a dissent in the Appellate Division

in an action brought by plaintiff Kim Allen pursuant to the Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.

                                       1
      After defendant County of Cape May (County) declined to renew

plaintiff’s contract, she brought this action against the County and defendant

Gerald Thornton, the County Freeholder Director. Plaintiff alleged that

defendants retaliated against her for engaging in CEPA-protected activity

arising from two incidents: her discussion with another County official about

a bid by a law firm, Capehart & Scatchard, P.A., to serve as the County’s

workers’ compensation counsel, and her objection to the retention of a second

law firm, Ballard Spahr, LLP, to conduct an investigation.

      The trial court granted defendants’ motion for summary judgment and

dismissed plaintiff’s CEPA claims. The Appellate Division reversed the grant

of summary judgment, with one judge dissenting from the court’s judgment.

      For the reasons that follow, we affirm in part and reverse in part the

Appellate Division’s judgment. We remand the claim arising from the

Capehart & Scatchard bid to the trial court for further proceedings, and we

reinstate the trial court’s entry of summary judgment dismissing plaintiff’s

claim relating to the retention of Ballard Spahr.

                                        I.

                                       A.

      We summarize the facts based on the summary judgment record

presented to the trial court.

                                        2
                                         1.

        In 2008, the County appointed plaintiff to a three-year term as County

Purchasing Agent. In 2011, the County appointed her to a second three-year

term.

        A year later, Thornton became the County Freeholder Director, and was

the manager to whom plaintiff reported for the remainder of her employment

with the County. Thornton’s stepson, Jeffrey Lindsay, became the County

Director of Human Resources, and oversaw the department that handled

workers’ compensation matters for the County. Plaintiff was not assigned to

Lindsay’s department, and he did not supervise her.

        In late 2013 and early 2014, plaintiff prepared a request for proposal

(RFP) for the selection of a law firm to represent the County in workers’

compensation cases. According to plaintiff’s deposition testimony, although

the RFP provided that the County preferred that law firms submitting bids

identify “a per case quote inclusive of all services up to and including first day

of trial,” the County also considered proposals that specified the law firm’s

hourly billing rates rather than a per-case quote.

        On February 25, 2014, after Capehart & Scatchard submitted a bid

specifying only a proposed hourly rate, not a per-case quote, Lindsay wrote

plaintiff a message indicating that he “ha[d] a question” about the workers’

                                         3
compensation RFP. Plaintiff testified that Lindsay asked her whether a vendor

could fax a new proposal page to supplement its bid. Plaintiff testified that she

told Lindsay that it would be “illegal” to accept a substituted page.

      Following her conversation with Lindsay, plaintiff asked her predecessor

as County Purchasing Agent, Gene Sicilia, to speak with Lindsay about his

inquiry regarding the Capehart & Scatchard proposal. Sicilia, who viewed

Lindsay to be “simply exploring what could we or what could we not do,”

testified that he told Lindsay that the County could not substitute a page of a

bid proposal, and that Lindsay “was fine with that.” Sicilia stated that he told

plaintiff that Lindsay “was okay with it.”

      Lindsay testified at his deposition that he had considered his inquiry to

plaintiff about Capehart & Scatchard’s bid proposal to be resolved before

Sicilia raised the issue with him, because that inquiry “was a question,” and

plaintiff had “answered it.” He stated that he did not discuss the matter with

anyone other than plaintiff and Sicilia.

      Plaintiff confirmed at her deposition that “[t]here was no page switched

out” in Capehart & Scatchard’s proposal, and that nothing unlawful occurred.

      Asked at her deposition what illegal act Lindsay had committed, plaintiff

replied that “[h]e asked a question that he shouldn’t have asked.” In response

to her counsel’s question later in the deposition, she added that she considered

                                           4
Lindsay’s inquiry to constitute “[a] course of conduct” rather than simply a

question because Lindsay “was in the evaluation stage with that, he had been

through other RFPs, and he knows that [what] is presented is, is exactly what

you evaluate against.”

      Notwithstanding her advice to Lindsay not to accept a substituted page

in Capehart & Scatchard’s proposal, plaintiff recommended that the County

retain the firm as its workers’ compensation counsel based on its

“qualifications, experience, references and cost.”

      In early 2014, Barbara Bakley-Marino (Marino), County Counsel,

asserted allegations against the County unrelated to plaintiff’s allegations in

this case. Assistant County Counsel James Arsenault retained Ballard Spahr to

conduct an independent investigation of Marino’s allegations on an expedited

basis. Plaintiff asked to meet with Ballard Spahr, and one of the firm’s

investigators interviewed her.

      According to the investigative report prepared by Ballard Spahr (Ballard

Spahr Report), plaintiff raised with the investigator the issue of the Capehart &

Scatchard RFP. The Ballard Spahr Report states that plaintiff told the

investigator that Lindsay had “questioned” whether he could ask a vendor t o

fax a new proposal after the bid process had closed, that plaintiff had




                                        5
responded “absolutely not,” and that Marino had commented that Lindsay did

not know local public contract law, which “scared” plaintiff.

      The Ballard Spahr Report, submitted to the County Board of Freeholders

(Board) on June 4, 2014, addressed the allegations raised by Marino. It

acknowledged that plaintiff had asked to be interviewed and had told the

Ballard Spahr investigators about her conversation with Lindsay regarding the

RFP for workers’ compensation counsel. The investigators stated that they

“were unable to substantiate the allegations that Mr. Lindsay improperly

handled the RFP relating to obtaining new outside counsel for workers’

compensation claims” and that they viewed it to be “appropriate for Mr.

Lindsay to seek counsel regarding processes with which he is unfamiliar.”

      Plaintiff conceded at her deposition that she did not tell Thornton about

her conversation with Lindsay concerning the workers’ compensation counsel

RFP and that she did not advise Thornton that she was concerned about the

question that Lindsay had asked her.

      Thornton testified that he read the Ballard Spahr Report. Asked whether

the Report contained a summary of any interviews or conversations with

plaintiff, he responded, “[n]ot that I remember.”




                                       6
                                          2.

      On April 16, 2014, after her comments to the Ballard Spahr investigator,

plaintiff attended a meeting with Arsenault and other senior County officials.

Plaintiff alleged in her complaint that at that meeting, she was advised that

Ballard Spahr had submitted an invoice in the amount of $40,000. She alleged

that she pointed out to those present that the process that led to the contract

was not the result of competitive bidding in response to an RFP, but was “non -

fair” and “non-open.”

      Plaintiff further contended that on June 10, 2014, when she reviewed a

draft contract and resolution prepared by Arsenault and his assistant regarding

the payment of Ballard Spahr’s invoice, she advised Arsenault that the draft

contract did not comply with competitive bidding requirements and “Pay to

Play Laws,” and that it needed language reflecting that the agreement was

“non-fair and non-open,” as well as a “not to exceed” billing limit, in order to

satisfy those requirements. She testified that in her presence, Arsenault

“inserted non fair and non open in the agreement” and added a “not to exceed”

billing limit, as she had advised. Plaintiff testified that the resolution’s title,

however, “did not have what I stated, the non fair, non open, or the amount.”

      Plaintiff contends that, despite Arsenault’s advice that the allegations

that Ballard Spahr was hired to investigate mandated an expedited

                                          7
investigation, she continued to object to the firm’s retention and told Arsenault

that the County required the submission of a special form in the event that it

hired a vendor on an emergent basis.

      On July 14, 2014, the Clerk of the Board instructed Arsenault and his

assistant to prepare a notice to plaintiff pursuant to Rice v. Union County

Regional High School Board of Education, 

155 N.J. Super. 64

, 74 (App. Div.

1977) (Rice Notice). The Rice Notice advised plaintiff of the Board’s intent to

discuss in executive session, as permitted by N.J.S.A. 10:4-12(b)(7) and -

12(b)(8), a personnel matter regarding her position, and it informed her of her

right to request that the discussion instead take place in open session. 1

      The County provided the Rice Notice to plaintiff in a letter from

Arsenault, which was hand-delivered to plaintiff on July 16, 2014. 2 At 1:38

p.m. on that same day, plaintiff sent an e-mail to Thornton and other County

officials. She wrote that she was “concerned with a [pay-to-play] practice with

Resolution 453-14 of 6/10/14, a Professional services agreement with Ballard

Spahr, LLP and the lack of completion of the political contribution disclosure


1
 Plaintiff did not exercise her right to demand a discussion of her personnel
matter in an open session of the Board.
2
  The record does not establish the exact time on July 16, 2014 that the County
delivered the Rice Notice to plaintiff. Plaintiff testified that the County
official designated to deliver the Rice Notice called her “right after lunch” on
that day and that the notice was delivered “later [in the] afternoon.”
                                        8
form that was supposed to be completed 10 days prior to the award of the

contract.” Plaintiff wrote that she understood that “the form is being worked

on now and will be sent out to [Ballard Spahr] to be completed.” She stated

that she was “just trying to avoid an audit of future contracts,” noting that

“[w]hen a contract with a professional services firm exceeds $17,500.00,” but

is “not awarded pursuant [t]o a fair and open process, there is a process to be

followed for political contribution disclosures.”

      At her deposition, plaintiff testified that she did not meet with Thornton

during the months preceding the decision not to renew her contract, and she

identified no communication with Thornton about the County’s contract with

Ballard Spahr other than her July 16, 2014 e-mail to him.

      Asked by Thornton to respond to plaintiff’s e-mail, Arsenault explained

in an e-mail to plaintiff,

             [i]n a perfect wor[ld] I agree wholeheartedly with your
             statements and appreciate the work you’ve done to
             ensure pay to play compliance. All I can say with
             regard to Ballard is that these were exceptional
             circumstances and we required the services of a law
             firm with impeccable credentials and no prior
             connection to the County in order to address very
             serious concerns. I am confident that Ballard will be
             able to demonstrate pay to play compliance with the
             submission of their certifications. While this will come
             beyond the timetable of the Act I also believe the ends
             justified the means in this circumstance. Certainly
             when time allows for a more deliberate approach to

                                        9
            retaining outside counsel, the wisdom of the policies
            you’ve highlighted can’t be questioned.

      At her deposition, plaintiff disputed Arsenault’s decision to retain

Ballard Spahr rather than one of the firms already retained by the County,

claiming that there was no need to circumvent the normal hiring process in

order to investigate Marino’s claims on an expedited basis. She admitted,

however, that she did not know anything about the claims for which the

County sought counsel or the employment law that governed those claims.

      Plaintiff stated that on July 24, 2014, Thornton told her that he had not

recommended her for reappointment and that the Board agreed with his

determination. She added that on August 7, 2014, she received a letter

formally notifying her that her contract, due to expire on August 26, 2014,

would not be renewed.

      Asked at her deposition to identify any evidence that the Ballard Spahr

contract played a role in the decision not to reappoint her, other than evidence

that she complained about the contract, plaintiff testified that “[i]t was in that

July time period, and I received my Rice Notice. And next thing I know, I’m

not being reappointed.”

      Explaining his decision not to renew plaintiff’s contract, Thornton

testified that he “had been going back and forth for probably a five or six

month period” about the question of renewing plaintiff’s contract before he
                                        10
met with the Board regarding it. He stated that he had “reservations” about

renewing plaintiff’s contract because he considered her a “mediocre

employee” based on “[t]he number of department heads that came to me and

complained about her performance.” Thornton identified four County officials

who, he contended, had complained to him about plaintiff.

                                        B.

                                        1.

      Plaintiff filed this action in the Law Division against the County and

Thornton. She asserted a claim for “retaliatory discharge and/or retaliatory

non-reappointment for having engaged in protected conduct” under CEPA.

Plaintiff demanded compensatory and punitive damages, equitable

reinstatement, attorneys’ fees, and other relief.

      In her complaint, plaintiff alleged that her response to Lindsay’s inquiry

about Capehart & Scatchard’s bid proposal and her statement to the Ballard

Spahr investigator about that inquiry constituted CEPA-protected conduct.

She also contended that her advice to County officials that the Ballard Spahr

contract with the County was “non-fair and non-open” and her advice to

Arsenault to add language to the contract and resolution constituted CEPA-

protected conduct. Plaintiff identified a provision of the Local Public

Contracts Law, N.J.S.A. 40A:11-4.4(c), and generally cited the Pay-to-Play

                                        11
Law, N.J.S.A. 19:44A-20.3 to -20.27, as statutes supporting her claims. She

did not identify the provision of CEPA that was the basis for either claim.

      After discovery, defendants moved for summary judgment. Plaintiff

opposed defendants’ motion, asserting that genuine issues of material fact

precluded the grant of summary judgment.

      The trial court analyzed plaintiff’s claims as if they were brought under

two CEPA provisions, N.J.S.A. 34:19-3(a) and N.J.S.A. 34:19-3(c).

      With respect to plaintiff’s allegations regarding the Capehart &

Scatchard proposal to serve as the County’s workers’ compensation counsel ,

the trial court found a genuine issue of material fact as to “whether Lindsay’s

question was one of mere inquiry or a proposed course of conduct that violates

New Jersey’s Local Public Contract[s] Law.”

      Viewing the evidence in the light most favorable to plaintiff, the court

concluded that plaintiff reasonably believed that Lindsay intended to violate

the Local Public Contracts Law when he asked whether a vendor could

substitute a page in a bid, and that plaintiff engaged in CEPA-protected

conduct under N.J.S.A. 34:19-3(a) when she informed the Ballard Spahr

investigators about her discussion with Lindsay. The court also concluded that

plaintiff presented prima facie evidence that her objections to the retention of

Ballard Spahr and the resolution reflecting the firm’s hiring constituted CEPA -

                                       12
protected conduct, and that plaintiff reasonably believed that the County

violated the Pay-to-Play Law.

      Granting all favorable inferences to plaintiff, the court found that she

presented a prima facie claim of retaliation under CEPA, thus shifting the

burden to defendants to establish that the County decided not to reappoint

plaintiff for legitimate, non-retaliatory reasons.

      The trial court agreed with defendants, however, that they met that

burden to establish legitimate, non-retaliatory reasons for the County’s

decision not to renew plaintiff’s contract. The court cited Thornton’s

testimony that department heads found it difficult to work with plaintiff, that

Thornton did not always find plaintiff knowledgeable about public contract

law, and that he had discussed with plaintiff the need to create working

relationships with her coworkers. The trial court also noted plaintiff’s

misunderstanding of a statute during a dispute about a County-operated

nursing home’s pharmacy vendor contract and plaintiff’s refusal to accept

Marino’s legal advice about the governing law in that incident.

      The trial court concluded that plaintiff had failed to present facts that

could establish by a preponderance of the evidence that Thornton’s proffered

reasons for not reappointing her constituted pretext, or that he decided not to




                                        13
reappoint plaintiff in retaliation for CEPA-protected conduct. It entered

summary judgment dismissing plaintiff’s claims.

                                        2.

      Plaintiff appealed the trial court’s grant of summary judgment.

Defendants did not file a cross-appeal pursuant to Rule 2:4-2 to contest the

trial court’s findings that plaintiff engaged in CEPA-protected conduct.

      The Appellate Division reversed the trial court’s judgment and remanded

the matter to the trial court for trial. The majority of the court disagreed with

the trial court’s conclusion that plaintiff failed to rebut defendants’ showing

that the County decided not to reappoint plaintiff for legitimate, non -

retaliatory reasons. The majority found genuine issues of material fact as to

the causal nexus between plaintiff’s CEPA-protected activity and the County’s

decision not to reappoint her, and held that there was a factual dispute with

respect to defendants’ proffered reasons for that decision.

      A member of the Appellate Division panel dissented from the judgment.

The dissenting judge stated that even if plaintiff had presented a prima facie

claim of CEPA-protected conduct, she failed to adduce sufficient proof that the

County’s stated reasons for her non-reappointment were pretextual. The

dissenting judge concurred with the trial court’s grant of summary judgment

dismissing plaintiff’s claims.

                                        14
                                        3.

      Pursuant to Article VI, Section 5, Paragraph 1(b) of the New Jersey

Constitution and Rule 2:2-1(a)(2), and based on the dissent in the Appellate

Division, defendants appealed as of right the Appellate Division’s judgment.

                                        II.

      Defendants urge the Court to reinstate the trial court’s grant of summary

judgment. They contend that plaintiff failed to present prima facie evidence

that she was not reappointed because of her conversation with Lindsay about

Capehart & Scatchard’s proposal to the County and her report of that

discussion to the Ballard Spahr investigators. Defendants argue that plaintiff

similarly failed to present evidence supporting her claim that defendants

retaliated against her because she objected to the retention of Ballard Spahr.

      Plaintiff asserts that the Court should affirm the Appellate Division’s

judgment reversing the trial court’s grant of summary judgment. She invokes

contradictions in defendants’ account of the events that led to the decision not

to reappoint her. Plaintiff contends that there is a genuine issue of material

fact with respect to her allegations that she was not reappointed in retaliation

for CEPA-protected conduct.




                                        15
                                       III.

                                        A.

      We review de novo the trial court’s grant of summary judgment,

applying the same standard that governed the court’s decision. Templo Fuente

De Vida Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 

224 N.J. 189

, 199

(2016) (citing Mem’l Props., LLC v. Zurich Am. Ins. Co., 

210 N.J. 512

, 524

(2012)). That standard requires the court to review the evidence in the light

most favorable to the non-moving party, and to enter summary judgment “if

the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is entitled to a

judgment or order as a matter of law.” R. 4:46-2(c); Brill v. Guardian Life Ins.

Co. of Am., 

142 N.J. 520

, 528-29 (1995).

                                        B.

      “The 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.’” Dzwonar v.

McDevitt, 

177 N.J. 451

, 461 (2003) (quoting Abbamont v. Piscataway Twp.

Bd. of Educ., 

138 N.J. 405

, 431 (1994)). The statute “shields an employee

who objects to, or reports, employer conduct that the employee reasonably

                                        16
believes to contravene the legal and ethical standards that govern the

employer’s activities.” Hitesman v. Bridgeway, Inc., 

218 N.J. 8

, 27 (2014).

      “CEPA’s critical substantive provisions are contained in N.J.S.A. 34:19-

3.” Chiofalo v. State, 

238 N.J. 527

, 540 (2019). That section “sets forth the

statute’s essential prohibition of employer retaliation for an employee’s

protected activities, which are identified in three subsections.”

Ibid.

At oral argument

before this Court, plaintiff confirmed that her CEPA

claim premised on the Capehart & Scatchard proposal to serve as the County’s

workers’ compensation counsel is based on N.J.S.A. 34:19-3(c). That

provision bars an employer from taking “any retaliatory action against an

employee” because the employee

            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 regulation
                   promulgated pursuant to law, including any
                   violation     involving     deception       of,    or
                   misrepresentation to, any shareholder, investor,
                   client, patient, customer, employee, former
                   employee, retiree or pensioner of the employer or
                   any governmental entity, or, if the employee is a
                   licensed or certified health care professional,
                   constitutes improper quality of patient care;

                   (2) is fraudulent or criminal, including any
                   activity, policy or practice of deception or
                   misrepresentation     which   the    employee
                   reasonably     believes   may   defraud   any
                                        17
                    shareholder, investor, client, patient, customer,
                    employee, former employee, retiree or pensioner
                    of the employer or any governmental entity; 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.S.A. 34:19-3(c).]

      Thus, a plaintiff who premises a CEPA claim on N.J.S.A. 34:19-3(c)

must prove that

            (1) he or she reasonably believed that his or her
            employer’s conduct was violating either a law, rule, or
            regulation promulgated pursuant to law, or a clear
            mandate of public policy; (2) he or she performed a
            “whistle-blowing” activity described in N.J.S.A. 34:19-
            3(c); (3) an adverse employment action was taken
            against him or her; and (4) a causal connection exists
            between the whistle-blowing activity and the adverse
            employment action.

            

[Dzwonar, 177 N.J. at 462

.]

      The plaintiff “need not show that his or her employer or another

employee actually violated the law or a clear mandate of public policy.”

Ibid.

“Instead, the plaintiff

simply must show that he or she ‘“reasonably believes”

that to be the case.’”

Ibid. (quoting Estate of

Roach v. TRW, Inc., 

164 N.J.

598

, 613 (2000)).

      In a CEPA case premised on N.J.S.A. 34:19-3(c), “trial courts ‘must be

alert to the sufficiency of the factual evidence and to whether the acts
                                        18
complained of could support the finding that the complaining employee’s

belief was a reasonable one,’ and ‘must take care to ensure that the activity

complained about meets this threshold.’” 

Chiofalo, 238 N.J. at 543

(quoting

Battaglia v. United Parcel Serv., Inc., 

214 N.J. 518

, 558 (2013)). “Vague and

conclusory complaints, complaints about trivial or minor matters, or

generalized workplace unhappiness are not the sort of things that the

Legislature intended to be protected by CEPA.” 

Battaglia, 214 N.J. at 559

.

      When a plaintiff alleges that the employer took an adverse employment

action as a pretext for discrimination, “[o]nce a prima facie case is established,

the burden of persuasion is shifted to the employer to rebut the presumption of

discrimination by articulating some legitimate nondiscriminatory reason for

the adverse employment action.” Kolb v. Burns, 

320 N.J. Super. 467

, 478

(App. Div. 1999). “Upon such a showing by the employer, plaintiff has the

ultimate burden of proving that the employer’s proffered reasons were a

pretext for the discriminatory action taken by the employer.”

Ibid.

CEPA “is considered

remedial legislation entitled to liberal construction,

its public policy purpose to protect whistleblowers from retaliation by

employers having been long recognized by the courts of this State.” Lippman

v. Ethicon, Inc., 

222 N.J. 362

, 378 (2015) (citing 

Abbamont, 138 N.J. at 431

).




                                        

19
Cow.

1

.

      When the trial court and the Appellate Division considered plaintiff’s

CEPA claim arising from her conversation with Lindsay regarding the

Capehart & Scatchard proposal and her communication with the Ballard Spahr

investigators regarding that conversation, plaintiff had not yet disclosed that

the claim is premised on N.J.S.A. 34:19-3(c). Plaintiff did not clarify the

statutory basis for that claim until the appeal was argued before this Court.

      Consequently, it appears that the trial court assumed that plaintiff’s

conduct would constitute CEPA-protected conduct for purposes of this action

if it satisfied either N.J.S.A. 34:19-3(c) or N.J.S.A. 34:19-3(a), a separate

CEPA provision that bars retaliation against an employee who “[d]iscloses, or

threatens to disclose to a supervisor or to a public body an activity, policy or

practice of the employer” that the employee reasonably believes to be

unlawful, fraudulent, or criminal under the statutory terms. With no

clarification from plaintiff as to the governing CEPA provision, the trial court

held that plaintiff’s discussion with the Ballard Spahr investigator “constitutes

CEPA-protected conduct under N.J.S.A. 34:19-3(a),” but did not review that

communication under N.J.S.A. 34:19-3(c). As to the remaining elements of

plaintiff’s claim arising from her discussions about the Capehart & Scatchard

                                        20
proposal, it is not clear whether the trial court relied on N.J.S.A. 34:19-3(a),

N.J.S.A. 34:19-3(c), or both provisions.

      The Appellate Division majority generally cited both N.J.S.A. 34:19-

3(a) and N.J.S.A. 34:19-3(c), and did not identify the specific provision on

which it relied when it found that plaintiff had presented prima facie evidence

as to each element of her claim and reversed the trial court’s grant of summary

judgment.

      Because it is unclear whether defendants’ motion for summary judgment

was decided based on the CEPA provision on which plaintiff relies, we remand

plaintiff’s claim regarding the Capehart & Scatchard proposal to the trial court

for additional summary judgment proceedings and, if summary judgment is not

granted, for trial. Applying N.J.S.A. 34:19-3(c), and viewing the evidence in

the light most favorable to plaintiff, the trial court should determine whether

plaintiff presented prima facie evidence on each element of plaintiff’s CEPA

claim.3



3
  Our dissenting colleagues discern “no purpose” in this Court’s remand of
plaintiff’s claim premised on the Capehart & Scatchard bid to the trial
court. Post at ___ (slip op. at 2, 12). They dismiss plaintiff’s counsel’s proper
clarification of the statutory basis for his client’s claim as an “improvident
concession” that we should nullify and ignore. Post at ___ (slip op. at 12
n.2). We view a remand to be essential to a fair consideration of plaintiff’s
claim under the provision of CEPA that governs this aspect of her case.

                                        21
      The trial court should first consider whether there is a genuine dispute of

material fact as to whether plaintiff reasonably believed that Lindsay’s inquiry

was an “activity, policy or practice” that was unlawful, as defined by N.J.S.A.

34:19-3(c)(1), or contrary to a clear mandate of public policy, as defined by

N.J.S.A. 34:19-3(c)(3). See 

Dzwonar, 177 N.J. at 462

.

      Should it find a genuine issue of material fact as to that issue, the court

should decide whether there is a genuine issue of material fact as to the

question whether plaintiff conducted a “whistle-blowing activity described in

N.J.S.A. 34:19-3(c).”

Ibid. As applied in

this appeal, that provision requires

plaintiff to show that she “[o]bject[ed] to, or refuse[d] to participate in” an

“activity, policy or practice” of the employer that she reasonably believed was

a violation of “either a law, rule, or regulation promulgated pursuant to la w, or

a clear mandate of public policy.” 

Dzwonar, 177 N.J. at 462

; accord N.J.S.A.

34:19-3(c). The trial court should separately analyze each alleged instance of

CEPA-protected conduct arising from the Capehart & Scatchard bid --

plaintiff’s conversation with Lindsay and her discussion with the Ballard Spahr

investigator about that conversation -- under N.J.S.A. 34:19-3(c).

      If the trial court decides that plaintiff engaged in CEPA-protected

conduct under N.J.S.A. 34:19-3(c), it should determine whether plaintiff

presented prima facie evidence that defendants conducted an adverse

                                        22
employment action against her because of that CEPA-protected conduct.

Dzwonar, 177 N.J. at 462

. The trial court should decide whether plaintiff has

presented prima facie evidence of a causal nexus between any CEPA-protected

activity, as defined by N.J.S.A. 34:19-3(c), and the County’s decision not to

reappoint her. See

ibid.

If the court

concludes that plaintiff presented prima facie evidence of the

elements of a retaliation claim, it should determine whether defendants have

met their burden to prove that the County declined to reappoint plaintiff for

legitimate, non-retaliatory reasons, or whether a genuine issue of material fact

exists as to pretext. See 

Kolb, 320 N.J. Super. at 478

; Depalma v. Bldg.

Inspection Underwriters, 

350 N.J. Super. 195

, 213-14 (App. Div. 2002);

Donofry v. Autotote Sys., Inc., 

350 N.J. Super. 276

, 290-91 (App. Div. 2001).

         If the trial court denies summary judgment after considering the

evidence pursuant to N.J.S.A. 34:19-3(c), plaintiff’s claim arising from her

statements regarding Capehart & Scatchard’s proposal should be determined at

trial.

                                          2.

         Viewing the evidence in the light most favorable to plaintiff, we

conclude that plaintiff failed to present a prima facie showing of any causal

connection between her statements about the County’s retention of Ballard

                                          23
Spahr and Thornton’s decision that the County would not reappoint her.4 We

concur with the dissenting judge in the Appellate Division that the trial court

properly entered summary judgment dismissing plaintiff’s claim based on the

County’s retention of Ballard Spahr.

      The record establishes that Thornton made the decision that the County

would not renew plaintiff’s contract, and set in motion the formal process to

implement that decision, no later than July 14, 2014, when the Clerk of the

Board instructed Arsenault and his assistant to prepare and send the Rice

Notice to plaintiff. By virtue of its timing, plaintiff’s July 16, 2014 e-mail to

Thornton and others, in which she raised concerns about the retention of

Ballard Spahr, could not have played any role in Thornton’s decision to

recommend that the County not renew plaintiff’s contract.5 That decision was

made before the e-mail was sent.


4
  Plaintiff has not indicated whether her claim based on the retention of
Ballard Spahr is premised on N.J.S.A. 34:19-3(a) or 34:19-3(c). Because we
determine that claim based on the issue of causation, not on the question
whether plaintiff presented a prima facie showing that she engaged in CEPA-
protected conduct, it is immaterial to our decision whether the claim is
predicated on N.J.S.A. 34:19-3(a) or N.J.S.A. 34:19-3(c).
5
   It is unclear which of the two events that occurred on July 16, 2014 --
plaintiff’s receipt of her Rice Notice by hand delivery, or her 1:38 p.m. e-mail
to Thornton stating her concerns about the contract with Ballard Spahr --
occurred first. However, Thornton’s decision to issue the Rice Notice -- notice
required by statute as a preliminary step toward the nonrenewal of her contract
-- indisputably preceded that e-mail by two days.
                                        24
      Moreover, there is no evidence that when Thornton decided that

plaintiff’s contract would not be renewed, he was aware of either of plaintiff’s

previous comments to other County employees about the retention of Ballard

Spahr.

      Nothing in the record suggests that plaintiff’s April 16, 2014 advice to

Arsenault and others regarding the process to be followed for the retention of

Ballard Spahr were repeated to Thornton; to the contrary, deposition testimony

suggests that plaintiff’s conversation with Arsenault was nothing more than a

routine discussion between a County employee and the County’s legal counsel.

Despite extensive discovery in which several current and former County

employees were deposed, there is no evidence that anyone brought those

comments to Thornton’s attention.

      The same is true for plaintiff’s advice to Arsenault on June 10, 2014

about language that should be included in the draft resolution and contract with

Ballard Spahr. By plaintiff’s own account, after she commented on the Ballard

Spahr contract and the Board resolution regarding that contract, Arsenault

made the language changes in the contract that she suggested but did not alter

the draft resolution. Plaintiff makes no claim that she told Thornton about that

conversation or otherwise addressed the issue with him prior to July 16, 2014.

Moreover, she presents no evidence that anyone relayed her comments on the

                                       25
draft contract and resolution language to Thornton. Indeed, in plaintiff’s July

16, 2014 e-mail to Thornton, she appears to inform him for the first time that

she had concerns about the process by which the County retained Ballard Spahr.

      We therefore conclude that as a matter of law, plaintiff presented no

prima facie evidence of a causal nexus between her comments on the retention

of Ballard Spahr and the County’s decision not to renew her contract. We do

not reach the question whether the evidence supported a finding that the

County’s stated reasons were a pretext for a retaliatory decision. We reinstate

the trial court’s order granting summary judgment with respect to plaintiff’s

claim based on the County’s retention of Ballard Spahr.

                                      IV.

      The judgment of the Appellate Division is affirmed in part and reversed

in part. The matter is remanded to the trial court for further proceedings with

respect to plaintiff’s claim regarding Capehart & Scatchard’s bid proposal to

serve as the County’s workers’ compensation counsel, and for the entry of

partial summary judgment dismissing plaintiff’s claim regarding the County’s

retention of Ballard Spahr.



       CHIEF JUSTICE RABNER and JUSTICES FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in JUSTICE PATTERSON’s opinion.
JUSTICE ALBIN filed a separate opinion, dissenting in part and concurring in
part, in which JUSTICE LaVECCHIA joins.
                                       26
                                  Kim Allen,

                             Plaintiff-Respondent,

                                       v.

                   Cape May County and Gerald Thornton,

                            Defendants-Appellants.


         JUSTICE ALBIN, dissenting in part and concurring in part.


      The Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1

to -8, protects an employee from retaliation from her employer when she

reports to a public body what she reasonably believes to be a violation of a

law. On the summary judgment record before us, plaintiff Kim Allen has

presented sufficient evidence that defendant Cape May County and defendant

Freeholder Director Gerald Thornton did not renew her contract as County

Purchasing Agent because she disclosed suspected unlawful conduct by

Thornton’s stepson, the County’s Director of Human Resources.

      Viewing the evidence in the light most favorable to Allen at this stage,

see Gormley v. Wood-El, 

218 N.J. 72

, 86 (2014), the Freeholder Director’s

stepson, Jeffrey Lindsay, suggested that Allen unlawfully alter the bid on a

County contract to benefit a law firm to Lindsay’s liking. Allen refused to do


                                       1
so. Allen provided information about this occurrence to a law firm specially

designated to investigate allegations of wrongdoing in the County government.

That investigation led to a report that discussed Allen’s disclosure about

Lindsay -- a report reviewed by Lindsay’s stepfather, Freeholder Director

Thornton. Just over a month after the issuance of the report, Thornton

recommended the non-renewal of Allen’s contract.

      Allen has presented a case of retaliation in violation of N.J.S.A. 34:19-

3(a) and (c). Thornton’s claim that he had legitimate work-performance

reasons for recommending Allen’s non-renewal is a disputed issue of fact.

Allen has a right to have a jury decide her case against Thornton and the

County. No purpose will be served by a remand to the trial court for further

consideration of those CEPA claims.

      I therefore respectfully dissent from the majority’s remand order on this

point and would affirm the Appellate Division. I concur with the majority that

the remainder of the Appellate Division’s opinion must be reversed.

                                       I.

      Kim Allen was serving her second three-year term as County Purchasing

Agent of Cape May County when Thornton became the County Freeholder




                                       2
Director in 2012.1 In that role, Thornton became Allen’s direct supervisor. In

2013, Thornton’s stepson, Lindsay, became the County Director of Human

Resources. Thornton’s wife -- Lindsay’s mother -- also worked as a nursing

home administrator for the County.

      In late 2013 and early 2014, Allen prepared a request for proposal (RFP)

to solicit bids from law firms to represent the County in workers’

compensation matters. The County’s expressed preference was to pay

attorney’s fees on a per-case basis rather than a per-hour basis. Capehart &

Scatchard, P.A. (Capehart) -- a law firm that Lindsay “liked” -- submitted a bid

for the contract on a per-hour basis. Lindsay asked Allen whether Capehart

could fax him a new fee quote on a per-case basis to replace the one already

submitted. Switching the quote page after the submission of a bid, however, is

a violation of the public contracts law. See, e.g., George Harms Constr. Co.,

Inc. v. Tpk. Auth., 

137 N.J. 8

, 37-38 (1994) (noting that “[a]voidance of any

potential for contract manipulation is a central theme of all public-bidding

doctrine,” and that prohibiting after-the-fact submissions is intended “to

prevent any possibility of favoritism”).




1
  The facts presented here are based on the summary judgment record, which
includes the deposition testimony of Allen, Thornton, and others.

                                           3
      Allen was “totally unnerved” by the question posed by Lindsay, who had

experience with past RFPs and told her he had reviewed the relevant

provisions of the public contracts law. As she stated in her deposition

testimony, “Lindsay was aware of the law. He said he had reviewed it.” She

perceived Lindsay’s question not as an innocent inquiry but as a proposal that

suggested a course of unlawful conduct -- “to swap out a page” on a bid. She

told Lindsay it would be illegal to do so. Critical to this case and to Allen,

Lindsay was not a low-level employee -- he was the head of human resources

and the Freeholder Director’s stepson.

      In May 2014, Thornton evidently approved Allen’s attendance at a

national conference at a cost of approximately $1,500 to the County. Up to

that point, Allen had never received a documented negative job performance

evaluation or discipline of any sort. Nor, according to Allen, had Thornton

ever expressed dissatisfaction to her about her performance as the County

Purchasing Agent.

      During this time period, Cape May County Counsel Barbara Bakley-

Marino forwarded a complaint to the Freeholder Board about gender

discrimination and nepotism in the County government. In particular, in her

deposition testimony, Bakley-Marino referenced the pay disparity between her

and her male counterparts, and she stated that she could not take her concerns

                                         4
about Lindsay to the Freeholder Director because he was supervising his

stepson. Bakley-Marino’s complaint led the Freeholder Board to hire the law

firm of Ballard Spahr LLP to conduct an investigation into her allegations.

      As part of the investigation, a Ballard Spahr attorney interviewed Allen.

A summary of that interview appeared in Ballard Spahr’s June 4, 2014 report

filed with the Freeholder Board. During that interview, Allen recounted that

Lindsay “questioned whether he could ask a vendor to fax a new proposal after

the bid process had closed, and [she] said absolutely not.” Additionally,

Bakley-Marino told Ballard Spahr that she “had concerns regarding Mr.

Lindsay’s handling of the RFP for workers’ compensation claims.” Bakley-

Marino reported “that after the bids had come in, Mr. Lindsay was going to

have one firm resubmit its bid . . . . [She] and Ms. Allen told Mr. Lindsay that

he could not do that.”

      Freeholder Director Thornton reviewed that report as the head of the

County government. Ballard Spahr indicated in its report that it was “unable

to substantiate” that Lindsay had engaged in any wrongdoing. Nevertheless,

Allen’s allegation against Thornton’s stepson presumably did not go

unnoticed.

      Just six weeks later, as Allen’s second term as County Purchasing Agent

neared an end, Thornton decided not to recommend her for reappointment.

                                       5
Thornton justified his decision based on his conclusion that Allen was “a

mediocre employee.” The Freeholder Board followed Thornton’s

recommendation and did not reappoint her.

      In Allen’s mind, her report to Ballard Spahr about the Freeholder

Director’s stepson -- passed along to the Freeholder Board -- played a role in

her non-reappointment. In short, Allen claims that she was victim of

retaliation in violation of CEPA because she had the temerity to give an honest

account of the conduct of the Freeholder Director’s stepson.

                                        II.

                                        A.

      CEPA “is a civil rights statute . . . [whose] purpose is to protect and

encourage employees to report illegal or unethical workplace activities and to

discourage public and private sector employers from engaging in such

conduct.” Abbamont v. Piscataway Twp. Bd. of Educ., 

138 N.J. 405

, 431

(1994). The statutory scheme makes clear that retaliation against a

conscientious employee who has the courage to call attention to the unlawful

conduct of the employer is repugnant to this state’s public policy.

Id. at 418,

431.

Because CEPA is remedial legislation, it “should be construed liberally

to effectuate its important social goal.”

Id. at 431.

6

      CEPA prohibits an employer from “tak[ing] any retaliatory action

against an employee” who “[d]iscloses, or threatens to disclose to a supervisor

or to a public body an activity, policy or practice of the employer . . . that the

employee reasonably believes . . . is in violation of a law.” N.J.S.A. 34:19-

3(a)(1). It similarly prohibits retaliatory action taken against an employee who

“[o]bjects to, or refuses to participate in any activity, policy or practice which

the employee reasonably believes . . . is in violation of a law.” N.J.S.A. 34:19-

3(c)(1).

      To establish a prima facie CEPA claim under either subsection 3(a) or

3(c), a plaintiff is required to show:

             (1) that he or she reasonably believed that his or her
             employer’s conduct was violating either a law or a rule
             or regulation promulgated pursuant to law;

             (2) that he or she performed whistle-blowing activity
             described in N.J.S.A. 34:19-3(a), (c)(1) or (c)(2);

             (3) an adverse employment action was taken against
             him or her; and

             (4) a causal connection exists between the whistle-
             blowing activity and the adverse employment action.

             [Kolb v. Burns, 

320 N.J. Super. 467

, 476 (App. Div.
             1999).]

      If a plaintiff makes a prima facie showing, the burden then shifts “to the

employer to rebut the presumption of [retaliation] by articulating some

                                         7
legitimate [non-retaliatory] reason for the adverse employment action.”

Id. at

478.

In the end, the “plaintiff has the ultimate burden of proving that the

employer’s” stated reasons for an employment action, such as non-renewal of

an employment contract, were “a pretext for the [retaliatory] action taken by

the employer.”

Ibid. To survive a

defendant’s motion for summary judgment,

however, a plaintiff need only show that “a reasonable factfinder could

rationally find” the employer’s purported non-pretextual reasons for taking the

employment action “unworthy of credence.”

Ibid. (internal quotation marks

and citation omitted).

                                       B.

      Viewing the facts in light of our permissive summary judgment standard,

Allen “reasonably believed” that Lindsay’s question about swapping out a bid

page was not a mere inquiry but an indication of a desired course of action in

violation of the public contracts law. After all, in Allen’s mind, Lindsay was

both a department head and an attorney, and therefore knowledgeable about

the public bidding laws.

      The character and thrust of a question can be understood only by its

context. When a course of action is cloaked in the form of a question,

particularly by a person wielding power in an employment context, the

employee on the receiving end typically hears the message. Allen testified that

                                        8
she got the message and pushed back, telling Lindsay that switching a bid page

would be illegal.

        But Allen did not just object to the inquiry by Lindsay -- who Allen

believed knew or should have known the answer to the question he posed --

she also disclosed the exchange she had with Lindsay to an agent of the

Freeholder Board. Allen made her disclosure to a lawyer for Ballard Spahr,

the firm retained by the Freeholder Board to investigate nepotism in the

County government. Ballard Spahr then published Allen’s whistleblowing

comments about Lindsay in its report to the Freeholder Board. That report

went to Allen’s supervisor, Freeholder Director Thornton. See N.J.S.A. 34:19-

2(d).

        Certainly, a rational factfinder does not have to ignore filial relationships

and family bonds in gauging Thornton’s response. A rational factfinder could

infer that Thornton did not respond well to what he likely perceived as Allen’s

trashing of his stepson in an official report.

        A rational factfinder, moreover, could conclude that the timing of the

Freeholder Board’s receipt of the Ballard Spahr report containing Allen’s

disclosures and Thornton’s decision not to recommend her reappointment as

County Purchasing Agent was no mere coincidence. A reasonable inference

may be drawn from the temporal proximity between a whistleblowing activity

                                          9
and an adverse employment action. See Maimone v. City of Atlantic City, 

188

N.J. 221

, 237 (2006). The non-renewal of Allen’s contract came almost

directly on the heels of the Ballard Spahr report that contained Allen’s

disclosure.

      At this stage, Thornton’s asserted non-pretextual reasons for Allen’s

non-reappointment -- that he was mulling for months whether to let her go and

that others had voiced concerns about her interpersonal skills -- do not have to

be accepted blindly. Not a single negative evaluation appeared in Allen’s

personnel file; she had never been disciplined; and Thornton evidently had

recently sent Allen to a national conference at the County’s expense, hardly a

step one would take for an employee with no long-term future.

      Ultimately, a jury must decide whether Thornton had justifiable and

legitimate reasons for not recommending Allen’s reappointment or whether

Thornton provided post-hoc rationalizations as a cover for retaliating against

Allen for her whistleblowing comments about his stepson.

                                      III.

      Allen’s CEPA complaint did not specify the particular subsections of

N.J.S.A. 34:19-3 on which she relied in pursuing her retaliation claims against

Freeholder Director Thornton and Cape May County. Nevertheless, when the

trial court decided the summary judgment motion, it rendered an opinion on

                                       10
both subsections 3(a) and 3(c), indicating that theories of liability under those

provisions were before the court. The court noted that Allen asserted that “she

engaged in CEPA-protected conduct when she directly told Mr. Lindsay that

he could not ‘switch out’ a page of a bid proposal and objected to that action,”

see N.J.S.A. 34:19-3(c), and that “she engaged in CEPA-protected conduct a

second time when she discussed the incident with investigators from Ballard

Spahr, LLP,” see N.J.S.A. 34:19-3(a). The court specifically found that

Allen’s “discussion with an investigatory firm hired by [d]efendants

constitutes CEPA-protected conduct under N.J.S.A. 34:19-3(a).” It also found

that Allen had “articulated a prima facie claim of retaliation under CEPA.”

      Nevertheless, the court granted summary judgment to defendants Cape

May County and Thornton, determining that Allen had failed to show that

defendants’ proffered reasons for not reappointing her were “pretextual” and

that “a causal connection” existed between her “CEPA-protected activity and

the adverse employment action.”

      Allen appealed the trial court’s finding of no causation. The Appellate

Division majority reversed the grant of summary judgment and held that, at

this juncture, Allen is entitled to the favorable inferences to be drawn from the

record and to have the contested facts decided by a jury. Because defendants

had not filed a cross appeal, the Appellate Division majority declined to

                                        11
address defendants’ arguments that the trial court had erred in finding that

Allen had established the first two elements of her prima facie retaliation

claims.

      “When reviewing a motion for summary judgment, we apply the same

standard as the trial court: we view the evidence in the light most favorable to

the non-moving party” -- in this case, that is Allen. See Estate of Narleski v.

Gomes, 

244 N.J. 199

, 205 (2020). By that standard, there is evidence to

support all four elements of Allen’s CEPA claims under both N.J.S.A. 34:19-

3(a) and (c). The contested issues of fact must be decided by a jury.2

      For the reasons expressed, I see no purpose in a remand, and therefore I

respectfully dissent from that aspect of the majority’s decision.




2
  In his brief to this Court, Allen’s appellate counsel focused primarily on the
issue of causation, which was the main point that divided the Appellate
Division majority and dissent. At oral argument before this Court, when
pressed to identify the subsection of N.J.S.A. 34:19-3 on which he was relying,
he made an improvident concession, stating subsection (c). Allen should not
be held to that concession because an independent review of the record shows
that she has a viable claim under subsection (a).

                                       12

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