IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BRYAN E. FISCHER,

Plaintiff,

v.

G4S SECURE SOLUTIONS USA, 

INC.,

Defendant.

 

HONORABLE JEROME B. SIMANDLE

Civil Action

No. 10-6792 (JBS/AMD)

OPINION

 

Appearances:

James M. Carter, Esq.

LAW OFFICES OF HOFFMAN DIMUNZIO

4270 Route 42

Turnersville, NJ 08012

Attorney for Plaintiff

John K. Bennett, Esq.

Leslie Ann Marie Saint, Esq.

JACKSON LEWIS P.C.

220 Headquarters Plaza

East Tower, 7th floor

Morristown, NJ 07960

Attorneys for Defendant

SIMANDLE, Chief Judge:

I. Introduction

Plaintiff Bryan Fischer brings this action alleging that he 

was terminated from his job in retaliation for engaging in 

protected whistleblowing activity, in violation of Conscientious 

Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, et seq.

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Plaintiff, formerly an armed security officer at a nuclear 

power facility, alleges that he was constructively terminated 

after disclosing to his supervisors unsafe conduct by his union 

co-workers. In response, some co-workers made complaining

statements to Plaintiff, and Defendant placed him on leave with 

pay in order to investigate his allegations of harassment. After 

concluding the investigation, Defendant offered Plaintiff two 

options: (1) a transfer to the nearest facility with which 

Defendant had a contract (in New Hampshire, for less pay and 

with a reduction in Plaintiff’s union seniority due to the 

different union contract there), or (2) return to work with 

assurances that changes were being made to the workplace and 

that harassment by his co-workers would not be tolerated. 

(Defendant rejected a third option: Plaintiff’s $800,000 demand 

for severance.) Plaintiff declined the transfer and never 

returned to work because he felt that Defendant had not 

adequately addressed his safety concerns. Officially, Plaintiff

was fired for not reporting to work. He maintains that he was 

constructively terminated.

Before the Court is a motion for summary judgment by 

Defendant G4S Secure Solutions USA, Inc. [Docket Item 40.] For 

the reasons explained below, because much of Plaintiff’s conduct 

does not qualify for protection under CEPA, and because 

Plaintiff cannot establish causation or show that Defendant’s 

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proffered reason for his termination was pretextual, the Court 

will enter summary judgment in favor of Defendant.

II. Background

Facts

1. Plaintiff’s disclosures

The facts are undisputed, except where noted. In 2007, 

Defendant G4S Secure Solutions USA, Inc., hired Plaintiff Bryan

Fischer as an armed security officer and assigned him to the 

PSEG Salem-Hope Creek nuclear power facility,1 where G4S provided

security services on a contract basis. (Statement of Undisputed 

Material Facts (“SMF”) ¶¶ 1, 4-6.) After a few months of 

employment, Plaintiff joined a security officers’ union, the

Nuclear Power Plant Security Officers of America. (SMF ¶3.) Over 

the course of his employment, Plaintiff received training 

materials and attended numerous training sessions on safety, 

ethics, misconduct, and harassment in the workplace. (SMF ¶¶ 11-

18.)

Between April 2008 and February 2010, Plaintiff was 

involved in three incidents in which he provided his employer 

with information about what he considered to be safety concerns

at the facility. (Defendant disputes that the information

1 The parties refer to the Salem Nuclear Power Plant and Hope 

Creek Nuclear Generating Station, collectively, as “Salem-Hope 

Creek.” The facilities are operated by PSEG Nuclear, LLC. (Am. 

Compl. ¶ 9.)

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disclosed had any bearing on safety. (SMF ¶ 95.)) Plaintiff 

asserts that these incidents provoked threatening or harassing 

responses from union co-workers, and set in motion a course of 

events that led to Plaintiff’s termination.

The first incident occurred in April 2008. A manager in 

PSEG’s security department asked Plaintiff if he was aware of 

any unauthorized chairs on site in which security officers might 

sit without permission. (SMF ¶ 19.) Plaintiff identified a chair 

“on one of the elevations that was used to prop open the roof 

door.” (SMF ¶ 20.) At the manager’s direction, Plaintiff and a 

union co-worker removed the chair. (SMF ¶¶ 21-22.) On April 17, 

2008, Officer Manny Perdue was seated behind Plaintiff at a 

meeting, and kicked the back legs of Plaintiff’s chair. (SMF ¶ 

23.) Plaintiff complained, and a union representative 

facilitated an apology from Perdue, which Plaintiff accepted. 

(SMF ¶¶ 24-31.) Perdue was later fired for an unrelated reason.

(Deposition of Arthur R. Simpson, Sr. (Def. Ex. D) [Docket Item 

40-12] at 78:7-12, 82:19-83:2.)

One year later, Plaintiff was patting down and searching 

visitors to the facility, when he discovered one visitor had a 

digital camera without a “camera pass” authorizing the visitor

to carry a camera into a protected area of the facility. (SMF ¶¶ 

32-36.) Plaintiff believed that Officer Glasby, who had allowed 

the visitor to enter without a camera pass, had violated 

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security protocol, and Plaintiff told the security team leader 

on duty. (SMF ¶¶ 37-38.) About 10 or 12 days later, Officer 

Glasby confronted Plaintiff and asked: “What are you trying to 

do jam me up?” (SMF ¶ 40.)

The third incident occurred on February 14, 2010, at the 

beginning of Plaintiff’s shift. (SMF ¶ 42.) He smelled alcohol

on the breath of his co-worker Officer Crowell and inquired 

whether Crowell had been drinking. (SMF ¶¶ 42-43.) Crowell 

replied that he had some drinks the night before but felt fine. 

(SMF ¶ 44.) Plaintiff believed that security officers were

required to self-report if they were intoxicated or if they had 

been under the influence of alcohol within five hours of 

reporting for duty, and Plaintiff instructed Crowell to report 

to the team leader. (SMF ¶¶ 45-46.) When Plaintiff informed

Officer Terry Snyder, the union’s vice president, about the 

situation, they both accompanied Crowell to the locker room to 

take a fitness-for-duty Breathalyzer test. (SMF ¶¶ 48-50.) 

Crowell failed the test and was terminated immediately. (SMF ¶¶ 

50-51.)

As to each of these three incidents, Plaintiff does not 

allege that his employer ignored his reports or failed to take 

proper action. Indeed, as to the third and most serious report 

of misconduct, involving Officer Crowell’s use of alcohol, 

Plaintiff admits “the employer did the right thing at the time 

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and terminated that employee.” (Pl. Supp. Letter Br. [Docket 

Item 48] at 2.) 

2. Reaction to Plaintiff’s conduct

Some of Plaintiff’s co-workers expressed dissatisfaction 

with Plaintiff’s behavior and Crowell’s termination. Officer 

Perdue showed Plaintiff text messages that read, “Fischer is 

going to get his,” and “Fischer’s no good, why you talk to him?” 

(SMF ¶¶ 52-54.) One officer told Plaintiff that “he needed to 

stop reporting things” and that if they were in the military, 

other officers “would pay him a visit at night.” (SMF ¶ 57.)

Plaintiff observed that when he entered the security officers’ 

break room, some union officers would leave the room. (SMF ¶ 

56.) Two months after Crowell’s termination, Officer Glasby 

relieved Plaintiff from his shift, and asked why Plaintiff was 

squinting his eyes and clenching his fists, and if he were going 

to hit Glasby. (SMF ¶ 59.) Plaintiff contends he was doing none 

of those things and thought Glasby was trying to provoke him or 

set him up. (SMF ¶ 60; Counterstatement of Material Facts 

(“CMF”) [Docket Item 42] ¶ 12.) Plaintiff discussed with Officer 

Snyder the possibility of contacting PSEG’s Employee Concerns 

Program (“ECP”), about this treatment by his co-workers. (SMF ¶¶ 

61-65.) The next day, the union president, Anthony Rizzo, told 

Plaintiff: “I hear you’re going to contact Employee Concerns. Go 

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ahead and contact Employee Concerns and see where that gets 

you.” (SMF ¶ 66.)

Plaintiff contacted the manager of ECP, Mike Headrick, and 

left a message requesting that Headrick call him back on his 

cell phone. (SMF ¶¶ 67-69; CMF ¶ 16.) Instead, Headrick called 

Plaintiff’s supervisor, Dave Mizenis, who, over the radio, 

relayed the message for Plaintiff to call “extension 2014,” 

which Plaintiff feared would be recognized by his co-workers as 

the ECP extension.2 (SMF ¶¶ 70-73.) Headrick later apologized for 

calling the supervisor, and arranged to meet Plaintiff that 

evening, to discuss the work environment. (SMF ¶¶ 75-76.)

Plaintiff met with Headrick twice and reported that his coworkers were treating him differently after the radio message to 

call extension 2014; one officer had asked Plaintiff “what was 

wrong with him” and “if he had a problem,” and another asked,

“what’s the matter with you, Fischer?” (SMF ¶¶ 79-82.) Headrick 

promised to investigate. (SMF ¶ 83.)

Plaintiff also arranged meetings with Hunter Sawders, 

project manager for G4S, and Brian Jacques, PSEG security 

manager. (SMF ¶¶ 84-88.) Jacques suggested that Plaintiff be 

assigned to administrative work in the building, to separate him 

from his fellow union officers while the situation was under 

2 Plaintiff contends he was certain that others recognized the 

extension. (CMF ¶ 18.)

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review. (SMF ¶ 89.) Although Plaintiff reported to work in the 

administrative building at least twice, Rizzo informed Sawders 

that the union’s collective bargaining agreement did not allow 

officers to perform such work. (SMF ¶ 96.) Consequently, on or 

around May 24, 2010, Plaintiff was placed on administrative 

leave with pay, pending an investigation. (SMF ¶ 98.)

G4S retained attorney Arthur Domby to investigate

Plaintiff’s concerns. (SMF ¶ 92.) Domby spoke with Plaintiff 

several times throughout the investigation, and as the 

investigation drew to a close, in July 2010, Domby told 

Plaintiff that he believed the work environment was being 

corrected. (SMF ¶¶ 99-102.) Domby said that any disciplinary 

action against union co-workers would be up to Sawders and G4S. 

(SMF ¶ 103.)

In August 2010, Plaintiff also contacted a field examiner

at the National Labor Relations Board office in Philadelphia 

about filing unfair labor practice charges against the union and 

G4S. (SMF ¶¶ 105-06.) The field examiner drafted charges based 

on Plaintiff’s representations, but Plaintiff ultimately decided 

not to sign or file charges. (SMF ¶¶ 107-09.) Plaintiff asserts 

that he told members of management, including Sawders, that he 

was considering filing NLRB charges. (CMF ¶ 33; Certification of 

Bryan Fischer (“Fischer Cert.”) [Docket Item 42-1] ¶ 27.)

Defendant contends that, because Plaintiff never filed charges, 

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neither G4S nor the union ever received notice of any NLRB 

charges. (SMF ¶¶ 110-11.) 

3. Meetings with management 

In September 2010, Plaintiff had a series of telephone 

conversations and in-person meetings with management of G4S and 

PSEG about whether and how Plaintiff could return to work. In 

the conversations, management reassured Plaintiff that they were 

taking his concerns seriously and that they would take necessary 

action to deal with anyone who gave Plaintiff trouble. Plaintiff 

surreptitiously recorded these conversations with a voiceactivated recording device. (SMF ¶ 104.) Plaintiff later 

explained that he wanted to document “the honest truth of 

whatever [management] thought they were going to do” and “didn’t 

want them to change their wording based on knowing that I had a 

recording device.” (Fischer Dep. (Def. Ex. B) at 383:21-384:13.)

He thought that recording the conversations would protect his 

“well-being.” (Id. at 384:25-385:2.) As discussed next, the 

transcripts of Plaintiff’s secret recordings document that 

Defendant’s management took prompt and reasonable measures to 

protect Plaintiff from workplace harassment by co-workers and to 

preserve his employment.

a. September 9, 2010

On September 9, 2010, Plaintiff met with Sawders and Robert 

Kindelein, who managed the Safety Conscious Work Environment 

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(“SCWE”) program for G4S, about returning to work. (SMF ¶¶ 13, 

115.) Plaintiff secretly recorded the conversation, as noted. 

Both Sawders and Kindelein assured Plaintiff that changes were 

being made in the workplace and that management would have “zero 

tolerance” of harassment toward Plaintiff upon his return. (Tr. 

of 9/09/10 Conversation at 68:18-21). Sawders said: 

I want to make sure you know that I’m aware of the issues

raised. Obviously, I’ve seen the investigation. There 

are some issues I still need to address with some of the 

force. Discipline will be issued wherever warranted. 

Coaching will be issued wherever warranted. . . . But I 

want you to know that I will take action on the parts 

that need to have action taken on them.

(Id. at 80:20-81:4.) Sawders explained that “the supervisors are 

going to quickly get some reigns put on them” and that “life is 

about to change for them.” (Id. at 72:25-73:1, 74:4-12.) Sawders 

said he specifically discussed Plaintiff’s situation with the 

supervisors so that “there’s going to be a heightened level of 

awareness out there.” (Id. at 81:9-10.) Sawders also reported 

that he spoke to, and provided reading material to, “every 

shift” and told the officers that “[t]his stuff about rats and 

snitches, that belongs in a prison. It doesn’t belong here.” 

(Id. at 74:15-21.) Kindelein added that “[t]here’s going to be a 

lot of SCWE things addressed.” (Id. at 74:13-14.) The managers 

pledged to take any action necessary and told Plaintiff that 

anyone who harassed Plaintiff would be “done.” (Id. at 75:9-13, 

81:2-10, 142:1-8; 145:17-18.) Sawders encouraged Plaintiff to 

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continue reporting safety violations through the proper chain of 

command but told him to report any instances of harassment 

directly to him. (Id. at 68:25-69:9, 71:20-22.) Sawders also 

discussed how Plaintiff would have to undergo a fitness-for-duty 

procedure, including drug testing, because he had been away from 

work for so long. (SMF ¶¶ 115-18.) 

Kindelein also discussed with Plaintiff an allegation 

contained in the investigation report that Plaintiff reported 

that he caught an officer named Katie Harris sleeping. (Tr. of 

Conversation with Fischer, Kindelein & Sawders (Pl. Ex. F) 

[Docket Item 42-6] at 6:10-7:42.) Plaintiff responded that 

“[t]hat’s a complete fabrication and lie” (id. at 7:12-13) and 

that “this is a union retaliation.” (Id. at 11:17-18.) Kindelein 

replied: “I got to look into it.” (Id. at 11:24.)

During this and subsequent conversations that Plaintiff 

recorded, Plaintiff expressed continued concerns about his 

safety. “I mean, do I think somebody’s going to shoot me? No.” 

(Tr. of 9/09/10 Conversation (marked as D-37 within Def. Ex. C.) 

[Docket Item 40-10 at 37] at 103:15-16.) “Did anybody say 

they’re going to beat me up or anything that -- like that? No, 

but I’ve heard people aren’t happy with [me].”3 (Tr. of 9/10/10 

3 Mike Bruecks, PSEG’s security director, responded: “Well, we’re 

taking care of that. Okay? We’re addressing those behaviors and 

actions of anybody who would even -- you know, because . . . we 

want you to be coming back into it, and we support you coming 

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Conversation with Fischer, Kindelein & Bruecks (marked as D-40 

within Def. Ex. C) [Docket Item 40-10 at 62] at 100:10-14.) “I 

really believe that somebody, given the opportunity, could 

possibly do something physically. I mean, do I have concrete 

evidence? No, I don’t. But . . . based on things I’ve heard and 

then were told to me . . . I probably feel that something like 

that could possibly happen to me.” (Tr. of 9/10/10 Conversation 

with Fischer, Kindelein & Sawders (marked as D-42 within Def. 

Ex. C) [Docket Item 40-10 at 70] at 3:12-17.) Plaintiff added: 

“I mean, I’m a man. I can take it. And like I said, they might 

say, Fischer, you got a high receding hairline; Fischer, you’re 

skinny. I mean, that’s -- that’s -- you know, I’m a man.” (Tr. 

of 9/10/10 Conversation with Fischer, Kindelein & Bruecks at 

101:14-17.) He was particularly concerned about “a situation 

that I would be in where somebody makes an accusation that he 

freaked out on me and -- and really they struck me and now --

now they’re trying to come up with a story to defend what they 

did to me.” (Id. at 102:2-6.)

b. September 10, 2010

Talks continued the next day, with Mike Bruecks, PSEG’s 

security director, which Plaintiff also secretly recorded. 

Bruecks told Plaintiff that he had seen the investigator’s 

back.” (Tr. of 9/10/10 Conversation with Fischer, Kindelein & 

Bruecks at 100:15-22.)

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report and PSEG supported Plaintiff’s return and would take care 

of any problems. (SMF ¶¶ 126, 129-30; Tr. of 9/10/10 

Conversation with Fischer, Kindelein & Bruecks at 93:11-13, 

100:15-22.) Bruecks said: “We all have to acknowledge that it’s 

not going to be a perfect ride, because of the . . . 

investigation. We will take care of that, if anybody steps out 

of line.” (Id. at 103:13-16.)

During a follow-up conference call, Kindelein asked 

Plaintiff what G4S could do to alleviate his concerns, and 

Plaintiff replied that he did not know. (SMF ¶¶ 127-28.)

Plaintiff discussed returning to work in such a manner that he 

would be separated from officers who threatened him, but he 

stated:

I won’t want to say no specific names, because I really 

don’t have a specific name . . . -- I mean, there are a 

few that I feel I could threatened by [sic], but I don’t 

want to reveal their names, because that would be unfair 

to them, and pre-judgmental on my part.

(Tr. of 9/10/10 Conversation with Fischer, Kindelein & Sawders 

(marked as D-42 within Def. Ex. C) [Docket Item 40-10 at 71] at 

4:3-9.) Plaintiff also discussed the possible termination of 

harassing officers, but Plaintiff acknowledged that such a move 

could backfire:

MR. FISCHER: . . . And obviously I’m hearing, you know, 

you had reiterated that nobody’s going to be terminated, 

and -- and I understand that. I’m not going to tell you 

how to do your job and how you would keep this force 

intact.

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MR. SAWDERS: Would terminating some people make you feel 

more comfortable?

MR. FISCHER: . . . in a way, it would, but then, in a 

way, I’d fear that what retaliation would come from them 

terminations. So, it is like a double-edged sword.

(Id. [Docket Item 40-11] at 8:18-9:2.)

Kindelein promised to speak with G4S corporate officials 

about options for Plaintiff. (SMF ¶ 132.) Plaintiff asked about 

being transferred to another G4S site. (SMF ¶ 133-34.) Kindelein 

advised that the nearest G4S site was Seabrook, N.H. (SMF ¶ 

137.) When asked to suggest other options, Plaintiff floated the 

idea of a severance package. (SMF ¶¶ 138-39.) Sawders told 

Plaintiff that the attorney for G4S and Plaintiff’s attorney 

would have to discuss these options, but that Plaintiff should 

continue the process of preparing to return to work, “just in 

case.”4 (SMF ¶ 141; Tr. of 9/10/10 Conversation with Fischer, 

4 Plaintiff contends that he left the September 10, 2010 meeting 

believing that all three options were available to him (CMF ¶ 

49) -- transfer, severance or returning to work with some safety 

measures. But the transcript of the conversation of September 

10, 2010, does not contain any statements that could be 

reasonably construed as promises that Plaintiff unilaterally 

could elect transfer or dictate terms of a severance package. 

(See, e.g., Tr. of 9/10/10 Conversation with Fischer, Kindelein 

& Sawders [Docket Item 40-11 at 1] at 7:16-18 (Sawders telling 

Plaintiff: “obviously some things we can do; some things we 

can’t. But we -- we need to know what you’d like. What are you 

thinking?”); see also id. at 24:23-25 (Sawders telling 

Plaintiff: “It doesn’t mean we can do any of them, but I got to 

know, because maybe we can. I don’t know. Some of these are 

outside of my authority . . . .”); see also Fischer dep. at 

373:11-19 (admitting that Sawders told Plaintiff to continue the 

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Kindelein & Sawders (marked as D-42 within Def. Ex. C) [Docket 

Item 40-11 at 15] at 25:17-24.) Kindelein stated that “your 

health and safety is our most important priority right now.” 

(Id. at 14:6-7.)

c. Other correspondence and Plaintiff’s 

termination

Plaintiff met with Sawders again on September 16, 2010. 

(SMF ¶ 142.) Sawders told Plaintiff that he could not create a 

position at the Salem-Hope Creek facility that would “keep 

[Plaintiff] away from other people that are of concern to you.” 

(SMF ¶ 144; Tr. of 9/16/10 Meeting (marked as D-46 within Def. 

Ex. C.) [Docket Item 40-11 at 28] at 4:5-9.) However, Plaintiff 

testified that, at some point, Sawders told him that Mizenis, 

the supervisor who relayed the message from ECP to Plaintiff 

over the radio, would not be assigned to Plaintiff’s shift upon 

his return to work. (Fischer dep. at 347:13-17.) Sawders offered 

Plaintiff a transfer to Seabrook, N.H., but advised him that 

security officers there belonged to a different union, and 

Plaintiff would start anew in terms of salary and seniority. 

(Tr. of 9/16/10 Meeting at 4:12-5:11.) Plaintiff again raised 

the option of a severance package, but Sawders told Plaintiff he

was only authorized to offer a transfer to New Hampshire, and 

in-processing so that no time was lost, even as G4S explored 

other options).)

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that the attorneys should confer about severance. (SMF ¶¶ 148-

49.)

On September 24, 2010, Plaintiff’s counsel sent G4S a 

letter rejecting the offer to transfer. (SMF ¶ 152.) In the 

letter, Plaintiff demanded a severance package of $800,000. (SMF 

¶ 153; D-46 (within Def. Ex. C) [Docket Item 40-11 at 46] at 3.)

G4S’s attorney rejected Plaintiff’s severance demand the same 

day, and instructed Plaintiff to contact management no later 

than September 27, 2010, to return to work or pursue the 

transfer.5 (SMF ¶ 154.) The letter stated that if Plaintiff did 

not contact management by the close of business on September 27, 

2010, G4S would deem him to have resigned voluntarily from his 

position. (SMF ¶ 154.) This dispute is immaterial because 

Defendant extended Plaintiff’s reporting date, as next 

discussed.

Plaintiff contacted G4S on September 28, 2010. (SMF ¶ 155.) 

He told Charles Workman, the regional director for G4S, that he 

would not return to work until his attorney spoke with G4S’s 

attorney and that he still feared for his personal safety. (SMF 

¶¶ 156-58.) Workman replied that if Plaintiff did not return to 

5 Plaintiff argues that Defendant does not assert that the G4S’s 

attorney actually sent the letter on September 24, 2010, only 

that he prepared the letter on that date. (CMF ¶ 35.) Plaintiff 

asserts that the letter demanding Plaintiff to return to work 

was not received by Plaintiff’s lawyer until September 28, 2010. 

(CMF ¶ 36.)

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work on September 29, 2010, he would face discipline under the 

union contract. (SMF ¶ 159.) Plaintiff did not report for work

on September 29. (SMF ¶ 160.) Plaintiff contends that he called 

out “as permitted under the terms of the collective bargaining 

agreement.” (CMF ¶ 38.) Workman left Plaintiff a message 

advising him to return to work on October 4, 2010, or he would 

face disciplinary action under the collective bargaining 

agreement. (Id.) Plaintiff’s counsel advised G4S by letter that 

Plaintiff would not be returning to employment at the facility. 

(SMF ¶ 161; Def. Ex. C (marked as D-49) [Docket Item 40-11 at 

50].) On October 8, 2010, Plaintiff received a certified letter 

that his employment was terminated because he violated the 

collective bargaining agreement by being a “no call, no show” 

for work on September 29 and October 4. (SMF ¶ 162.) Plaintiff 

considered himself constructively discharged. (CMF ¶ 39.)

Procedural history

On November 16, 2010, Plaintiff filed a seven-count 

Complaint in Superior Court of New Jersey, Gloucester County, 

against G4S and Nuclear Power Plant Security Officers of 

America, which Defendant removed to this Court.6 [Docket Item 1.] 

The Court granted the union’s unopposed motion to dismiss, and, 

after granting a separate motion to dismiss by G4S, permitted 

6 The Court has jurisdiction under 28 U.S.C. § 1332(a). (See Am. 

Compl. [Docket Item 24] ¶¶ 3-8.)

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Plaintiff to amend the Complaint. [Docket Items 14, 19 & 22.]

The Amended Complaint states a single cause of action under the 

New Jersey Conscientious Employee Protection Act (“CEPA”), 

N.J.S.A. 34:19-1, et seq.: “The plaintiff’s termination was in 

retaliation for him speaking out or threatening to speak out 

about the defendant’s inability or unwillingness to follow 

safety requirements of the U.S. Nuclear Regulatory Commission 

and for speaking out or threatening to speak out about unfair 

labor practices to the National Labor Relations Board.” (Am. 

Compl. [Docket Item 24] ¶ 38.)

The Court heard oral argument on Defendant’s motion for 

summary judgment on May 15, 2014, and received supplemental 

briefing from the parties after argument.

III. Standard of review

A court shall grant summary judgment “if the movant shows 

that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). A dispute is “genuine” if, based on the evidence in 

the record, 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” if it might affect the outcome 

of the suit. Id. Rule 56 “mandates the entry of summary 

judgment, after adequate time for discovery and upon motion, 

against a party who fails to make a showing sufficient to 

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establish the existence of an element essential to that party’s 

case, and on which that party will bear the burden of proof at 

trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) 

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

IV. Discussion

Defendant contends that Plaintiff voluntarily abandoned his 

job when he chose not to return to work on September 29 and 

October 4, 2010. (Def. Mot. [Docket Item 40-1] at 2.) Defendant

moves for summary judgment on the ground that “no reasonable 

juror could believe the Plaintiff was subject to any retaliatory

conduct.” (Id.) Defendant argues that Plaintiff fails to make 

out a prima facie case of retaliation under CEPA, and even if he 

could, he fails to present any evidence that the articulated 

reason for termination -- failing to show up for work on two 

days, as directed -- was pretextual. Plaintiff contends he is 

not required to establish a prima facie case, but that he is 

able to do so on the record. (See Pl. Opp’n [Docket Item 42] at 

12-17; see also infra, n.8.) Plaintiff maintains that he was 

constructively terminated in retaliation for his protected 

activity, and that the “no call, no show” explanation for his 

termination was pretextual. (Pl. Opp’n at 16-17.)

Statutory background

CEPA is a “whistleblower statute” that “creates a cause of 

action for an employee who is subjected to retaliation for 

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reporting workplace misconduct.” Battaglia v. United Parcel 

Serv., Inc., 214 N.J. 518, 555 (2013). The New Jersey Supreme 

Court has recognized that “CEPA is a remedial statute that 

‘promotes a strong public policy of the State’ and ‘therefore 

should be construed liberally to effectuate its important social 

goal.’” Id. (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 

138 N.J. 405, 431 (1994)). The statute provides:

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 . . . that the employee reasonably believes:

(1) is in violation of a law, or a rule or 

regulation promulgated to law . . . ; or

. . . c. Objects to . . . 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 . . . ; or

(3) is incompatible with a clear mandate of public 

policy concerning the public health, safety or 

welfare or protection of environment.

N.J.S.A. 34:19-3. A plaintiff bringing a CEPA claim under 

N.J.S.A. 34:19-3c must prove: 

(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–

3c; (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.

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Battaglia, 214 N.J. at 556 (quoting Dzwonar v. McDevitt, 177 

N.J. 451, 462 (2003)). At oral argument, Plaintiff’s counsel 

clarified that the allegations here state claims under both 

N.J.S.A. 34:19-3c(1) and 3c(3).

CEPA claims are governed by the burden-shifting framework 

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 

92 (3d Cir. 1999) (“the well-established burden-shifting 

analysis that is used in federal discrimination cases involving 

‘pretext’ claims is appropriately used in a CEPA case”); 

Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App Div. 

2008) (stating that the burden-shifting analysis used in New 

Jersey Law Against Discrimination cases -- the McDonnell Douglas

framework -- should be applied to CEPA cases). Under this 

framework, the employee bears the initial burden of establishing 

a prima facie case, and then the burden shifts to the employer

to articulate a legitimate, non-retaliatory reason for the 

employment decision. See Shellenberger v. Summit Bancorp, Inc., 

318 F.3d 183, 187 (3d Cir. 2003). If the defendant meets its 

burden, the employee “must then prove that ‘retaliatory animus 

played a role in the employer’s decisionmaking process and that 

it had a determinative effect on the outcome of that process.’”

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Id. (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d 

Cir. 1997)).7

Plaintiff’s certification

As a preliminary matter, Defendant urges the Court to 

disregard Plaintiff’s certification, attached to his opposition, 

7 Plaintiff argues that he does not need to establish a prima 

facie case if Defendant already has articulated a legitimate, 

non-retaliatory reason for its conduct. (Pl. Opp’n at 12.) 

Plaintiff argues that when “the defendant has done everything 

that would be required of him if the plaintiff had properly made 

out a prima facie case, whether the plaintiff really did so is 

no longer relevant.” (Id., quoting U.S. Postal Serv. Bd. of 

Governors v. Aikens, 460 U.S. 711, 715 (1983).) In Aikens, the 

district court entered judgment in favor of the defendantemployer after a full trial on the merits. Aikens, 460 U.S. at 

713. The district court also denied the defendant’s motion to 

dismiss for failure to establish a prima facie case at the close 

of the plaintiff’s case-in-chief. Id. at 714 n.4. On appeal, the 

parties disputed whether the plaintiff had established a prima 

facie case. In making the statement quoted above, the Supreme 

Court observed that, after a full trial and after the plaintiff 

survived a motion to dismiss based on the evidence in the casein-chief, the relevant question was not whether the plaintiff 

established a prima facie case but whether the plaintiff’s job 

candidacy had been rejected for a discriminatory reason. See

Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 221 (3d Cir. 

2000) (declining to read Aikens expansively and stating that “it 

is clearly proper to instruct the jury that it may consider 

whether the factual predicates necessary to establish the prima 

facie case have been shown”).

Here, the Court is asked to rule on Defendant’s motion for 

summary judgment, which directly challenges the sufficiency of 

Plaintiff’s evidence to establish the elements of a CEPA claim. 

Defendant also argues in the alternative that there was a nonretaliatory reason for Plaintiff’s termination and that the 

stated reason was not pretextual. This case has not received a 

full trial on the merits. This Court has not denied a motion to 

dismiss based on Plaintiff’s case-in-chief. Nothing in Aikens, 

or Plaintiff’s other citations, relieves Plaintiff of his 

initial burden to establish a prima facie case of a CEPA 

violation under New Jersey law, at the summary judgment phase.

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under the “sham affidavit doctrine.” (Reply [Docket Item 43] at 

5.) The doctrine provides that “a party may not create a 

material issue of fact to defeat summary judgment by filing an 

affidavit disputing his or her own sworn testimony without 

demonstrating a plausible explanation for the conflict.” Jiminez 

v. All Am. Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007).

Defendant contends that the certification contradicts 

Plaintiff’s deposition testimony, but Defendant has not 

demonstrated any contradictions, and therefore the Court will 

not disregard the certification. 

Defendant sees contradictions in the fact that Plaintiff, 

at his deposition, could not identify any law, rule or 

regulation that he reasonably believed was violated, and now he 

certifies that he believed there was a law, rule or regulation 

that was violated. (Reply at 7.) These two facts are not 

necessarily inconsistent: Plaintiff could reasonably believe 

that a law, rule or regulation existed, without being able to 

identify it specifically. The other alleged contradictions do 

not strike the Court as incompatible. Because Defendant has not 

identified contradictory statements of fact in his deposition 

and certification, there is no grounds to ignore the 

certification.

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Reasonable belief that G4S violated a law, rule, 

regulation or clear mandate of public policy

Defendant argues that Plaintiff has not established the 

first element of a prima facie CEPA violation because he “failed 

to identify any statute, regulation or clear mandate of public 

policy that G4S violated.” (Def. Mot. at 9.) Defendant contends 

that Plaintiff must “enunciate the specific terms of a statute 

or regulation, or the clear expression of public policy, which 

would be violated if the facts alleged are true.” (Id.) 

(internal quotation marks omitted). Defendant concludes that the 

“competent record evidence confirms that Plaintiff did not raise 

any ‘safety issue’ based on any reasonable belief that Defendant 

was violating any statute, regulation or clear mandate of public 

policy . . . .” (Def. Mot. at 11). 

In opposition, Plaintiff argues that he is “only required 

to hold an objectively reasonable belief that a law or public 

policy was violated.” (Pl. Opp’n at 14.) He continues: “It is 

respectfully submitted that, given the sensitive nature of the 

particular type of workplace in this matter, a nuclear power 

plant, public policy demands that any employee at such a 

facility should feel free to raise any safety or security 

concern without the threat of harassment, intimidation, or 

termination.” (Id. at 15.) Plaintiff cites no evidence in 

support of the reasonableness of his belief that laws, rules or 

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regulations were violated, with the arguable exception of his 

own testimony, in which he asserts a subjective belief that the 

conduct violated the law.

CEPA requires a plaintiff to “set forth facts that would 

support an objectively reasonable belief that a violation has 

occurred.” Dzwonar, 177 N.J. at 464. The Court’s task is to 

determine whether, based on the record, a reasonable juror could 

find that plaintiff had an objectively reasonable belief that 

the complained-of conduct violated a law, rule, regulation or 

clear mandate of public policy. See id.; Battaglia, 214 N.J. at 

558; Maimone v. City of Atl. City, 188 N.J. 221, 233 (2006)

(stating that the plaintiff “only has to show that he had an 

‘objectively reasonable belief’ in the existence of such a 

violation”). Plaintiff need not identify a law, rule, regulation 

or policy that Defendant actually violated if all the facts 

asserted are true, but there must be “a substantial nexus 

between the complained-of conduct and a law or public policy . . 

. .” Dzwonar, 177 N.J. at 464. The New Jersey Supreme Court has 

instructed trial courts to “be alert to the sufficiency of the 

factual evidence and to whether the acts complained of could 

support the finding that the complaining employee’s belief was a 

reasonable one.” Battaglia, 214 N.J. at 558. 

After briefing on this motion was complete, and after the 

Court held oral argument, the New Jersey Supreme Court issued an 

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opinion on the proof required to sustain a CEPA claim and 

appears to have heightened the burden on CEPA plaintiffs. See

Hitesman v. Bridgeway, Inc., No. A-73-12 (N.J. June 16, 2014).

The Supreme Court held that “a plaintiff asserting that his or 

her employer’s conduct is incompatible with a clear mandate of 

public policy concerning the public health must, at a minimum, 

identify authority that applies to the activity, policy or 

practice of the employer.” Id., slip op. at *3 (emphasis added). 

The Supreme Court further observed that “a pivotal component of 

a CEPA claim is the plaintiff’s identification of authority in 

one or more of the categories enumerated in the statute that 

bears a substantial nexus to his or her claim,” and instructed 

the trial court to “enter judgment for a defendant when no such 

law or policy is forthcoming.” Id. at *28 (citing Dzwonar, 177 

N.J. at 463) (emphasis added). The Supreme Court continued:

Whether a CEPA plaintiff invokes a law, rule, 

regulation, declaratory ruling, or professional code of 

ethics . . . under N.J.S.A. 34:19-3(a)(1) or (c)(1), or 

alleges employer conduct ‘incompatible with a clear 

mandate of public policy concerning the public health’ 

under N.J.S.A. 34:19-3(c)(3), the plaintiff must

identify the authority that provides a standard against 

which the conduct of the defendant may be measured.

(Id. at *28-*29) (emphasis added). In summary, the Supreme Court 

concluded that “to present a cognizable retaliation claim . . . 

under N.J.S.A. 34:19-3(a)(1) and (c)(1), or . . . under N.J.S.A. 

34:19-3(c)(3), a plaintiff must present authority meeting the 

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statutory criteria” -- meaning a law, rule regulation or clear 

mandate of public policy -- “that serves as a standard for the 

employer’s conduct. In the absence of such authority, the CEPA 

claim fails.” Id. at *33 (emphasis added).

Prior to the Hitesman opinion, the governing framework for 

CEPA claims was provided by Dzwonar, which held that “the trial 

court must make a threshold determination that there is a 

substantial nexus between the complained-of conduct and a law or 

public policy identified by the court or the plaintiff.” 

Dzwonar, 177 N.J. at 464 (emphasis added). Dzwonar thus appeared 

to permit the trial court to identify a law or public policy 

that shared a substantial nexus with the complained-of conduct, 

if no citation to authority was forthcoming from the plaintiff. 

Although the majority opinion in Hitesman continues to cite that 

language from Dzwonar with approval, see Hitesman, slip op at 

*24, *26,8 the dissenting opinion in Hitesman highlights how the 

law now places the burden squarely on the plaintiff to identify 

8 More precisely, the Hitesman majority specified that “[t]he 

trail court must determine whether there is a substantial nexus 

between the complained-of conduct and a ‘clear mandate of public 

policy’ identified by the court or the plaintiff.” Hitesman, 

slip op. at *26 (citing Dzwonar, 177 N.J. at 464). After 

Hitesman, it is unclear whether the court may initially identify 

the source of public policy, but it is clear that the plaintiff 

must demonstrate the existence of such a source of law or other 

authority that sets the governing standard for the employer’s 

conduct, and prove it to the factfinder. Hitesman, slip op. at 

*30, *32-*33.

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some source of authority by which the employer’s conduct and the 

plaintiff’s reasonable belief is measured: 

The majority cites no legal authority for the new demands 

it places on CEPA plaintiffs. . . . Until today, no case 

required a plaintiff to make a hard copy of a federal or 

state statute or regulation, such as the CDC guidelines, 

and place or read it into evidence.

Id., slip op. at *7 (Albin, J., dissenting)). The strong 

language in Hitesman suggests that the plaintiff, and not the 

Court, must initially identify the source of law or public 

policy with which the complained-of conduct shares a substantial 

nexus, although the uncritical quotation of Dzwonar suggests 

that the Dzwonar framework remains in full force.9 In any event,

Hitesman did not change the requirement that a CEPA plaintiff 

must adduce sufficient proof for a jury to find that his or her 

belief that a law, rule or regulation had been violated, or a 

clear mandate of public policy contravened, was objectively 

reasonable. In many cases, the best evidence of a belief’s 

objective reasonableness is a source of law or policy that 

shares a substantial nexus with the complained-of conduct.

Here, in the motion briefs and at oral argument, Plaintiff

initially took the position that he did not need to identify any 

specific law or policy to satisfy the reasonable belief prong of 

9 The issue of whether the trial court could initially identify a 

source of law or policy was not at issue in Hitesman, where the 

plaintiff identified three possible sources. Hitesman, slip op. 

at *33.

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his CEPA claim. His evidence of the reasonableness of his belief 

that certain conduct violated a law or policy consisted solely

of his own testimony that he believed that a law or policy had 

been violated. Plaintiff cited no other evidence to support a 

finding that his belief was objectively reasonable. He relied

exclusively on these assertions: 

10. Based upon my training, without being able to cite 

it specifically, as of April 15, 2009, I believed that 

there was a statute, rule, or regulation prohibiting 

bringing cameras into a nuclear facility without a valid 

camera pass. 

11. Based on my training and the daily Security 

Information Bulletin I received at the beginning of 

every shift,10 without being able to cite it 

specifically, as of February 14, 2010, I believed that 

there was a statute, rule, or regulation requiring an 

armed nuclear security officer to self-report being 

under the influence of alcohol within five hours of

reporting for duty.

(Fischer Cert. ¶¶ 10-11.) He made no similar statement about his 

belief regarding the chair removal in 2008. These statements may 

support a finding of a subjective belief, but do not, on their 

own, permit a finding of an objectively reasonable belief that a 

law or regulation was being violated.

At oral argument pre-Hitesman, heeding the language of 

Dzwonar permitting the Court to identify a law or public policy, 

the Court raised the question of whether certain Nuclear 

10 Plaintiff does not indicate that any Security Information 

Bulletin is contained in the present record. Plaintiff does not 

cite to or describe any such bulletin. 

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Regulatory Commission regulations could provide an objectively 

reasonable basis for Plaintiff’s belief regarding prohibition of 

alcohol use within five hours of reporting to duty. 

Specifically, the Court identified regulations that outline 

fitness-for-duty programs for armed security force officers at 

nuclear facilities. 10 C.F.R. § 26.4(a)(5). The Nuclear 

Regulatory Commission regulations provide for mandatory drug and 

alcohol testing of an individual “[i]n response to an 

individual’s observed behavior or physical condition indicating 

possible substance abuse or after receiving credible information 

that an individual is engaging in substance abuse . . . .” 10 

C.F.R. § 26.31(c)(2). The regulations expressly name “alcohol” 

as a “substance[] tested.” 10 C.F.R. § 26.31(d)(1). The 

regulations provide that 

Any individual who is determined to have been involved 

in . . . the consumption of alcohol within a protected 

area of any nuclear power plant . . . or while performing 

the duties that require the individual to be subject to 

this subpart shall immediately have his or her 

authorization unfavorably terminated and denied for a 

minimum of 5 years from the date of the unfavorable 

termination of authorization.

10 C.F.R. § 26.75(c).

The Court invited the parties to file supplemental briefs 

to discuss whether these regulations play any role in this suit. 

In response, Plaintiff initially continued to assert that “he is 

not required to be able to cite, chapter and verse, the statute, 

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regulation or policy he sought to enforce . . . .” [Docket Item 

48 at 2.] However, he ultimately did endorse the regulations 

raised by the Court: 

If the court agrees . . . that there at least must be an 

identifiable law, regulation or policy . . . the court

may, as it has done here, identify that law or public 

policy. One of the several issues raised by the plaintiff 

as being whistleblowing activity was a violation of the 

facility fitness-for-duty requirement promulgated 

pursuant to 10 C.F.R. § 26.4(a)(5).

[Id.]

Given the unique confluence of the procedural history of 

this case with the new opinion in Hitesman, the Court finds that 

Plaintiff’s endorsement of the regulations identified by the 

Court suffices to meet the burden of identifying authority by 

which the employer’s conduct and the objective reasonableness of 

his belief is measured. 

The Court next must determine whether Plaintiff has adduced 

sufficient evidence from which a jury could reasonably conclude 

that there was a substantial nexus between the complained-of 

conduct and regulations, and whether Plaintiff’s belief that 

some regulation had been violated was objectively reasonable.

The above-cited NRC regulations admittedly concern fitness-forduty programs and drug testing, and do not expressly dictate 

that an intoxicated security officer must self-report.

Nonetheless, a jury could reasonably conclude that if drug 

testing is mandated by law, and if an officer may be fired for 

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failing a substance test, a fellow officer could reasonably 

believe that some unidentified regulation prohibits an armed

security officer at a nuclear facility from reporting for duty 

while intoxicated.

Other record evidence supports this conclusion. The record 

contains the Wackenhut Safety Handbook, which Plaintiff 

testified he received in 2007 during initial training. 

(Wackenhut Safety Handbook (marked as D-30 within Def. Ex. C) 

[Docket Item 40-9 at 6] at 32; Fischer Dep. at 304:21-305:15.) 

The handbook states that “any use . . . or possession of . . . 

alcohol while on duty or on Company property is an offense 

subject to termination of employment.” (Id.) It continues: “Offthe-job use of alcohol which adversely affects an employee’s job 

performance is proper cause for administrative or disciplinary 

action up to and including termination of employment.” (Id.) The 

handbook does not state that being intoxicated on the job is a 

violation of law, as opposed to a violation of the employer’s 

code of conduct, but a jury could consider this evidence, in 

conjunction with the NRC drug-testing regulations, as support 

for Plaintiff’s position that his belief was objectively 

reasonable.

It is hardly a stretch to conclude that the intoxication or 

similar impairment of an armed security officer at a nuclear 

facility is a safety risk to the public. See Mollo v. Passaic 

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Valley Sewerage Comm’rs, No. 07-1655, 2009 WL 5216976, at *9 

(D.N.J. Dec. 30, 2009) (discussing that “persons who have 

routine access to dangerous nuclear power facilities . . . ‘can 

cause great human loss before any signs of impairment become 

noticeable to supervisors or others’”), aff’d, 406 F. App’x 664 

(3d Cir. 2011); EEOC v. U.S. Steel Corp., No. 10-1284, 2013 WL 

625315, at *19 (W.D. Pa. Feb. 20, 2013) (stating that “private 

security officers . . . and nuclear plant operators” are “jobs 

that, if performed badly, could result in harm to others in the 

general public”).

These cases, the regulations, the Handbook, and Plaintiff’s 

testimony, could support a jury finding that plaintiff had an 

objectively reasonable belief that Officer Crowell violated a 

regulation or clear mandate of public policy bearing on public 

safety. Plaintiff need not prove that his violation actually 

would have violated a regulation; he need only show a 

substantial nexus between a regulation and the complained-of 

conduct. Hitesman, slip op. at *25 (citing Dzwonar, 177 N.J. at 

464). The record contains a sufficient showing of a substantial 

nexus, and therefore, the Court cannot determine as a matter of 

law that Plaintiff’s belief was not objectively reasonable. 

Plaintiff has adduced evidence from which a reasonable 

factfinder could find sufficient to establish the first element 

of his CEPA claim, to the extent the claim is based on the 

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disclosure of Officer Crowell’s intoxicated state to his 

supervisor.

By contrast, Plaintiff has not identified any law, rule, 

regulation or clear mandate of public policy relating to camera 

passes at nuclear facilities or chairs for security guards near 

the door to the roof of a nuclear facility. Plaintiff adduces no 

evidence that he had an objectively reasonable belief that 

Officer Glasby violated the law by permitting a visitor to enter

without a camera pass. Plaintiff does not even attempt to 

testify in his certification that he believed the existence of a 

chair near the door to the roof of the property violated the law

for CEPA purposes. Plaintiff’s CEPA claims based on the chair 

and the camera-pass incidents fail as a matter of law because 

Plaintiff has not adduced sufficient evidence to “support the 

finding that the complaining employee’s belief was a reasonable 

one.” Battaglia, 214 N.J. at 558.

Whether Plaintiff engaged in whistleblowing activities

Defendant next argues that “Plaintiff’s alleged complaints 

are not whistleblowing activities because they involve 

complaints of a private nature rather than complaints about 

public harm.” (Def. Mot. at 12.) Defendant maintains that 

“violative activity must ‘have public ramifications,’ as opposed 

to merely consisting of a private dispute between an employer 

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and employee.” (Id., quoting Maw v. Advanced Clinical Commc’ns, 

Inc., 179 N.J. 439, 445 (2004).)

While it is true that an employee proceeding under N.J.S.A. 

34:19-3c(3) “must make the additional showing that the ‘clear 

mandate of public policy’ . . . is one that ‘concern[s] the 

public health, safety or welfare or protection of the 

environment,” the New Jersey Supreme Court has unequivocally 

stated that “[t]his requirement is ‘unique’ to c(3).” Maimone, 

188 N.J. at 231. In other words, an employee proceeding under 

N.J.S.A. 34:19-3c(1) need not make the same showing concerning 

“the public health, safety or welfare or protection of the 

environment,” only that the whistleblower reasonably believed 

that the complained-of conduct violated a law, rule or 

regulation. To the extent Plaintiff proceeds under c(1), he need 

not show that the complained-of conduct implicated public 

health, safety or welfare. However, even under c(3), Plaintiff 

has made a sufficient showing that Crowell’s intoxication 

implicated public health, safety or welfare.

CEPA “‘is intended to protect those employees whose 

disclosures fall sensibly within the statute; it is not intended 

to spawn litigation concerning the most trivial or benign 

employee complaints.’” Battaglia, 214 N.J. at 558 (quoting 

Roach, 164 N.J. at 613-14). CEPA does not protect “a complaint 

about a minor violation of a company’s internal policy . . . .” 

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Id. at 561. Rather, “CEPA is designed to protect employees who 

blow the whistle on illegal or unethical activity committed by 

their employers or co-employees.” Roach, 164 N.J. at 609-10; see

also DeLisa v. Cnty. of Bergen, 165 N.J. 140, 146 (2000) (“‘CEPA 

covers employees who objects to the conduct of co-workers’”)

(citing Higgins v. Pascack Valley Hosp., 158 N.J. 404, 419 

(1999)).

Here, the disclosure of information to a supervisor that an 

armed security officer at a nuclear facility was intoxicated or 

suspected to be intoxicated is not a “trivial or benign employee 

complaint” or a “minor violation” of a company’s internal 

policy. Rather, Plaintiff’s disclosure concerned a serious 

infraction with potentially major public safety implications.

Indeed, Crowell was fired on the spot. Therefore, Plaintiff 

engaged in protected activity when he blew “the whistle on 

illegal or unethical activity committed by” his co-employee. 

DeLisa, 165 N.J. at 146.

Plaintiff contends that he engaged in other protected 

activity by submitting “a written list of suggestions (a 

‘deficiency list’) to make the site safer.” (Pl. Opp’n at 15, 

citing CMF ¶ 31). Plaintiff certifies that “I drafted a list of 

safety concerns and suggestions that I shared with management of 

PSEG Nuclear and the defendant, including Project Manager Hunter 

Sawders, in the spring of 2010 during one of our several 

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meetings, prior to my suspension.” (Fischer Cert. ¶ 26.) 

Plaintiff’s suggestions include “pay[ing] closer attention” to 

certain matters with security implications, increasing the use 

of police dogs, putting the “best shooters from each team” in 

the proper location to best prevent an attack, and sending a 

“Petition to Congress” to change rules about the religious 

rights of security guards. (Fischer Cert. Ex. A.) Submitting 

this list to management is not whistleblowing activity within 

the meaning of CEPA, because the “list of safety concerns” does

not disclose activities, policies or practices that Plaintiff 

believed were in violation of a law, rule, regulation or public 

policy. See N.J.S.A. 34:19-3a(1); see also Hitesman v. Bridgeway 

Inc., 430 N.J. Super 198, 212 (App. Div. 2013) (“It is not 

enough for an employee to rest upon a sincerely held--and 

perhaps even correct--belief that the employer has failed to 

follow the most appropriate course of action . . . .”), aff’d, 

No. A-73-12 (N.J. June 16, 2014). Plaintiff’s list suggests how 

to improve security, not how to correct policies or practices 

that were believed to be in violation of law. Plaintiff has not 

identified any violation of a statute, rule or regulation that 

he was reporting to his employer in this list, as required by 

CEPA. To the extent Plaintiff’s CEPA claim is based on this list 

of safety concerns, Defendant is entitled to summary judgment 

because suggesting improvements that do not address allegedly 

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illegal or prohibited policies, practices or conditions simply 

is not whistleblowing activity within the meaning of CEPA.

In the Amended Complaint, Plaintiff pleads that his 

termination was in retaliation for “speaking out or threatening 

to speak out about unfair labor practices to the National Labor 

Relations Board.” (Am. Compl. ¶ 38.) Plaintiff’s summary 

judgment opposition brief appears to abandon this argument. 

Although Plaintiff’s statement of facts and certification refer 

to Plaintiff’s decision not to file charges with the NLRB, 

Plaintiff now argues that he engaged in protected whistleblowing 

activity only “[b]y sharing his concerns with management . . . 

.” (Pl. Opp’n at 15.) Plaintiff no longer argues that filing 

charges with the NLRB constituted protected activity for 

purposes of his CEPA claim. Rather, he argues that he “brought 

to the attention of management the fact that he was being 

harassed and intimidated by his co-workers after reporting a 

number of specific safety issues,” and he “submitted a written 

list of suggestions (a ‘deficiency list’) to make the site 

safer.” (Id. at 15.) Plaintiff refers to “several” meetings in 

May 2010 in which he “convey[ed] his concerns to management, 

including the deficiency list.” (Id.) Because Plaintiff does not 

argue that telling Sawders that “he was considering ‘going to 

the NLRB’” (CMF ¶ 33) constituted protected activity, the Court 

deems this argument waived. See Aetna Health Inc. v. Davila, 542 

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U.S. 200, 212 (2004) (deeming an argument waived when the 

“[r]espondents did not identify this possible argument in their 

brief in opposition”); Travitz v. Ne. Dep’t ILGWU Health & 

Welfare Fund, 13 F.3d 704, 711 (3d Cir. 1994) (“When an issue is 

not pursued in the argument section of the brief, the appellant 

has abandoned and waived that issue on appeal.”); Person v. 

Teamsters Local Union 863, No. 12-2293, 2013 WL 5676739, *4 

(D.N.J. Oct. 16, 2013) (“Where a party only defends a subset of 

claims in opposition to a dispositive motion, the Court will 

construe those claims that were not defended as abandoned.”); 

Leone-Zwillinger v. N.J., No. 04-5103, 2007 WL 1175786, at *3 

(D.N.J. Apr. 19, 2007) (“when a party fails to offer any 

argument or evidence . . . in opposition to defendants’ motion 

for summary judgement [sic], such claims may be deemed to be 

have been abandoned”) (citing Desyatnik v. Atl. Casting & Eng’g 

Corp., No. 03-5441, 2006 WL 120163, at *1 (D.N.J. Jan. 17, 

2006)).

Thus, Plaintiff’s reporting to management of Crowell’s 

suspected intoxication on the job remains as the sole protected 

activity under CEPA in this case.

Adverse employment action and causation

The parties agree that Plaintiff suffered an adverse 

employment action when he was terminated, but disagree about 

whether a causal connection exists between Plaintiff’s 

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whistleblowing and his termination. Defendant argues that “the 

competent record evidence shows that Plaintiff voluntarily 

terminated his employment when his attorney . . . confirmed 

Plaintiff would not be returning to work at Salem Hope Creek 

despite all of G4S’s assurances that it would not tolerate any 

mistreatment of him by his fellow Union officers.” (Def. Mot. at 

13.) Defendant contends that “Plaintiff’s employment came to an 

end only because of his own acts -- namely, his voluntary 

abandonment of his employment when he was required to return to 

work.” (Id. at 14-15.) 

Plaintiff argues that his employer gave him “no reasonable 

alternative” but to refuse to return to work, and that the “only 

option, after Mr. Fischer turned down the transfer to New 

Hampshire, was for him to return to work, to the place with his 

armed and unhappy co-workers. This was an option no reasonable 

person could have accepted under the circumstances.” (Id. at 

16.) Plaintiff argues that he suffered a “constructive 

termination” because management showed “no willingness to 

resolve the problems” and “made no real effort to reintroduce 

him into the workforce.” (Id. at 16-17.) Plaintiff contends that 

he “was attempting to reach a resolution and was forced to 

abandon his job. The only alternative explanation, to be 

determined by the fact-finder, is that G4S was tired of having 

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an officer not ‘go with the flow’ and who regularly made waves . 

. . .” (Id.)

In a CEPA case, the plaintiff bears the burden of proving 

that the protected activity was “a substantial or determinative, 

motivating factor” in the adverse employment action. Donofry v. 

Autotote Sys., Inc., 350 N.J. Super. 276, 273 (App. Div. 2001); 

see also Blizzard v. Exel Logistics N. Am., Inc., No. 02-4722, 

2005 WL 3078175, at *9 (D.N.J. Nov. 15, 2005) (“it is 

Plaintiff’s burden to establish the causal connection; it is not 

Defendant’s burden to disprove causation”). A plaintiff may 

demonstrate a causal link using circumstantial evidence. Kachmar 

v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997). 

Temporal proximity or a pattern of antagonism on the part of the 

employer can raise the inference of causation. Espinosa v. Cnty. 

of Union, 212 F. App’x 146, 153 (3d Cir. 2007) (quoting Kachmar, 

109 F.3d at 177). In addition, the “‘proffered evidence, looked 

at as a whole, may suffice to raise the inference.’” Id.

Plaintiff’s case bears a strong resemblance to Espinosa. 

There, plaintiff Espinosa, a corrections officer in the Union 

County Jail, witnessed fellow officers abuse detainees, and

agreed to testify against the offending officers. Espinosa, 212 

F. App’x at 149. Espinosa and the Prosecutor’s Office agreed

that “it would be too dangerous for Espinosa to continue to work 

inside the Jail,” based on a “‘long history of intimidation and 

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retaliation against corrections officers in the Union County 

Jail who provide information with regard to the conduct of 

fellow corrections officers.’” Id. Accordingly, Espinosa was 

permitted to leave his job, with pay, until the conclusion of 

the trials. Id. In August 2000, after the trials were complete 

and a full five years after Espinosa witnessed the original 

incident, a County official discovered Espinosa was still on the 

payroll, and ordered him to return to his job or resign. Id. at 

150. Espinosa did not return to work, and the County placed him 

on leave without pay. Id. A few months later, the County 

initiated a disciplinary action against Espinosa, and, at the 

hearing, Espinosa argued that “he could not return to the Jail 

out of concern for his own safety.” Id. The County determined 

that “Espinosa had abandoned his job,” and terminated him. Id.

Espinosa sued, arguing, among other things, that he was fired in

retaliation for his testimony against fellow officers, in 

violation of CEPA. Id.

The district court granted summary judgment in favor of the 

County, and the Third Circuit affirmed. Id. at 151, 154. The 

Third Circuit concluded that a jury could not reasonably find 

the County terminated Espinosa in retaliation for his protected 

activity for three reasons. First, Espinosa admitted in his 

deposition that the County would not have fired him had he 

returned to his job. Id. at 153. Second, Espinosa knew that the 

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County intended to take him off the payroll at the conclusion of 

the trials. Id. at 154. Finally, “Espinosa presented no evidence 

supporting his claim that the County acted out of animus toward 

him.” Id.

Plaintiff presents an analogous, though not identical,

case.11 The record shows that, here, like in Espinosa, after

Plaintiff made his protected disclosure, Defendant accommodated 

Plaintiff by placing him on paid leave for the duration of an 

investigation into Plaintiff’s allegations of harassment. When 

the impetus for paid leave ended, Defendant requested Plaintiff 

to return to work. In this case, as in Espinosa, Plaintiff 

declined to return to work, asserting that he feared for his 

personal safety. Defendant terminated Plaintiff for not 

returning to work as directed.

Like the plaintiff in Espinosa, Plaintiff has not adduced 

evidence to support a finding of causation, i.e., that 

Plaintiff’s disclosure of Crowell’s intoxicated state was a 

motivating factor in Plaintiff’s termination. Because the

termination came more than seven months after his protected

disclosure, the temporal proximity is not enough to raise a 

reasonable inference of causation. Neither does Plaintiff’s 

11 The time the plaintiff was on paid leave in Espinosa far 

exceeds the time Plaintiff was on leave in this case. Plaintiff 

in this case also turned down an alternate accommodation of a 

transfer to New Hampshire.

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evidence suggest a pattern of antagonism by Defendant. Taken as 

a whole, the evidence of record does not raise an inference of 

causation.

Plaintiff has not adduced evidence to establish a 

constructive termination. A constructive discharge under New 

Jersey law occurs “when an employer knowingly permit[s] 

conditions of discrimination in employment so intolerable that a 

reasonable person subject to them would resign.” Shepherd v. 

Hunterdon Developmental Ctr., 174 N.J. 1, 27-28 (2002) (internal 

quotation marks omitted); see also Donelson v. DuPont Chambers 

Works, 206 N.J. 243, 257 (2011) (citing Shepherd). A 

constructive discharge claim requires “more egregious conduct 

than that sufficient for a hostile work environment claim.” 

Shepherd, 174 N.J. at 28. The terminated plaintiff must show

“not merely ‘severe or pervasive’ conduct, but conduct that is 

so intolerable that a reasonable person would be forced to 

resign rather than continue to endure it.” Id. (quoting Jones v. 

Aluminum Shapes, Inc., 339 N.J. Super 412, 428 (App. Div.

2001)). The “standard envisions a ‘sense of outrageous, coercive 

and unconscionable requirements.’” Id.

Here, Plaintiff argues that Defendant was tired of 

Plaintiff making “waves,” but does not point to evidence to 

support that notion. Plaintiff reaches this conclusion by 

stating that two of the three options discussed (transfer and

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severance) were eliminated, leaving Plaintiff with no choice but 

to return to an unsafe work place. (Pl. Opp’n at 16-17.) To the 

contrary, Sawders commended Plaintiff, in one of the 

conversations Plaintiff secretly recorded to document 

management’s unfiltered words, for reporting performance lapses: 

“part of what you were doing is exactly what everybody should be 

doing and they’re not.” (Tr. of 9/10/10 Conversation at 74:17-

18.) Kindelein also told Plaintiff: “I’m your advocate. Somebody 

is out there giving you a hard time, you call me. All right?” 

(Id. at 142:1-3.) He added: “You got a lot of people on your 

side, okay?” (Id. at 145:17-18.) In another conversation, 

Bruecks told Plaintiff: “I want you to feel obviously as open 

and as free as you were to continue to identify and raise 

issues. . . . And you know we welcome that, and that we want to 

make sure that that doesn’t stop.” (Tr. of 9/10/10 Conversation 

with Fischer, Kindelein & Bruecks at 98:16-17.)

Plaintiff does not adduce evidence from which a reasonable 

jury could find a constructive termination. He does not adduce 

evidence to show that a reasonable person would find the work 

environment so intolerable that he or she would resign rather 

than return to work under the assurances management consistently 

gave him. Plaintiff’s evidence does not establish a severe or 

pervasive hostile work environment, but rather, viewing the 

evidence most favorably to Plaintiff, a handful of pointed 

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comments by co-workers over the course of two years that did not 

result in any physical injury to Plaintiff or his property.12

Plaintiff was never the victim of violence. Even these 

encounters did not impair Plaintiff’s ability to do his job, and 

management gave clear signals that they continued to support him 

and would deal with anyone who tried to hassle him. His coworkers’ behavior, though unwelcoming, was not “outrageous, 

coercive and unconscionable” within the meaning of the 

constructive discharge doctrine. Shepherd, 174 N.J. at 28. 

Plaintiff certainly does not show that Defendant endorsed 

harassing behavior or exhibited animus toward Plaintiff. To the 

contrary, it is undisputed that Defendant backed Plaintiff by 

firing Crowell, accommodating Plaintiff with paid leave, 

investigating his allegations,13 soliciting suggestions from him

about ameliorating the situation, following through on the 

suggestion to arrange a transfer for him, pledging their support 

of him, promising to discipline or terminate harassing coworkers, and assuring him that changes to the work environment 

had been made and more were planned. Sawders described how he 

12 Plaintiff does not claim that the emotional or mental toll of 

the threats necessitated his employment decision. Rather, he 

argues that the workplace was physically unsafe.

13 Plaintiff expressed his belief that the investigator told 

Defendant what it wanted to hear, and “not necessarily the 

truth.” (Tr. of 9/10/10 Conversation with Fischer, Kindelein & 

Bruecks at 93:20-23.)

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had spoken with every shift and each team leader, and he 

explained that he was prepared to enforce rules that previously 

had not been enforced. G4S’s attorney explained in a letter to 

Plaintiff’s attorney that management “has discussed with Mr. 

Fischer that it would not ‘turn him loose’ with his colleagues, 

but that it planned to return him to work through a number of 

measures designed to supervise and observe the work force around 

him, including an escort for a period of time.” [Docket Item 40-

11 at 47 (marked as D-48 within Def. Ex. C)]. The attorney also 

informed Plaintiff’s attorney that “the company will implement a 

number of pre-planned measures for Mr. Fischer’s safety and 

smooth transition back to his current job.” [Id.]; see also

Fischer dep. at 394:6-11 (admitting that G4S’s attorney 

represented to Plaintiff that the company would implement 

preplanned measures for Plaintiff’s safety and a smooth 

transition back to work). 

Management did not ignore suggestions by Plaintiff to 

improve the work environment. In Plaintiff’s taped 

conversations, Plaintiff declined to provide Defendant with 

names of co-workers that continued to concern him, although 

Sawders told him that Mizenis, his supervisor who had a history 

with Plaintiff, would be placed on a different shift. (Fischer 

dep. at 347:13-17.) At oral argument, Plaintiff’s counsel 

posited that none of the harassers had been disciplined, but 

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Plaintiff himself expressed ambivalence about Defendant 

terminating anyone, fearing the move would make the work 

environment less safe. Management repeatedly stated that they 

wanted Plaintiff to return to work and assured him that if 

anyone harassed him upon his return, the harasser would be 

disciplined or terminated. There is no evidence that Defendant 

ever disregarded any threat to Plaintiff’s safety or acquiesced 

to a pattern of harassment by any of Plaintiff’s co-workers.

There is no evidence that Defendant disapproved of Plaintiff’s 

whistleblowing; the record undisputedly shows that his employer 

encouraged it.

At Plaintiff’s request, Defendant arranged for Plaintiff’s 

transfer to New Hampshire, the nearest G4S facility, but 

Plaintiff ultimately declined the transfer because he did not 

want to relocate his family, take a pay cut or lose his union 

seniority as required by the New Hampshire unit’s collective 

bargaining agreement. Defendant rejected Plaintiff’s demand for 

an $800,000 severance package, more than ten times his annual 

salary.14 Nothing in the record suggests that Defendant’s offer 

of transfer was disingenuous or deliberately unattractive. The 

fact that Defendant declined to pay Plaintiff more than 10 times 

his annual income in severance does not permit an inference that 

14 At oral argument, Plaintiff’s counsel stated Plaintiff earned 

approximately $70,000 per year.

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Defendant retaliated against Plaintiff. Nothing in the record 

demonstrates that Plaintiff attempted to negotiate a lower 

severance package, when his first demand was rejected. In sum, 

the record does not support Plaintiff’s contention that he was 

constructively discharged or that Defendant harbored animus 

toward Plaintiff.

Plaintiff’s own statements undercut his contention that his 

physical safety was at risk. Although Plaintiff stresses that 

the work environment was dangerous because all of his fellow 

officers were armed, Plaintiff himself stated to management 

prior to his termination that he did not fear that he would be 

shot by a co-worker. (See Tr. of 9/09/10 Conversation at 103:15-

16.) Plaintiff’s counsel reiterated this admission at oral 

argument. No one ever threatened to beat Plaintiff up. (See Tr. 

of 9/10/10 Conversation with Fischer, Kindelein & Bruecks at 

100:10-14 (“Did anybody say they’re going to beat me up or 

anything that -- like that? No . . .”).) His own words to 

management evince a fear of a hypothetical possibility -- not a 

likelihood, not a certainty -- that his physical safety was at 

risk. (See Tr. of 9/10/10 Conversation with Fischer, Kindelein & 

Sawders at 3:12-17 (“somebody . . . could possibly do something 

physically”); id. (“something like that could possibly happen to 

me”).)

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The evidence may support a finding of Plaintiff’s 

subjective fear, but it does not substantiate that such a fear 

was reasonable. The only physical gesture ever directed at 

Plaintiff was a co-worker kicking his chair at a morning 

meeting. That co-worker later apologized and, eventually, left 

the work force. Plaintiff received, at most, a handful of veiled 

threats from co-workers spread over two years prior to his being 

placed on leave. Most of the threats were nonspecific and not 

spoken directly to Plaintiff -- “Fischer is going to get his,”

for example, which was a message Perdue received on his cell 

phone -- and the vast majority of them were made prior to 

Plaintiff going on leave. Some of the friction came not from 

words but from a type of shunning, as when some officers would 

leave the lunchroom. At oral argument, Plaintiff’s counsel 

identified only one statement made to Plaintiff in the months 

after he left the facility, which indicated that Plaintiff would 

be “challenged” upon his return. Plaintiff testified that the 

“worst” statement from one officer was, “If we were in the 

military we would pay you a visit at night.” (Fischer dep. at 

160:16-161:2.) Plaintiff presents no evidence of threats to his 

personal safety, no threats of any specificity against his 

person or property, no harassing phone calls or letters or notes 

or photos, no evidence that his co-workers acted violently 

against him, no pledges of violence against him, and no evidence 

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of any damage or injury to his person or property in the 

entirety of his employment at the nuclear facility. Plaintiff 

never experienced any physical altercation aside from his chair 

being kicked in 2008, and no one ever threatened to beat him up. 

His fears of physical harm, though perhaps sincerely held, are

not reasonably founded on the present record.

None of the evidence discussed above permits an inference 

that Plaintiff’s disclosure of Crowell’s intoxicated state was a

substantial or determinative factor in Plaintiff’s termination.

See Donofry v. Autotote Sys., Inc., 350 N.J. Super. at 273. The 

record does not support a finding of likely physical harm to 

Plaintiff upon his return to work. No reasonable factfinder 

could conclude that the comments and text messages Plaintiff’s 

co-workers made and sent were so outrageous, coercive, or 

unconscionable that a reasonable person would find the work 

environment to be intolerable. More importantly, there is simply 

no evidence that the Defendant or its managers condoned, 

encouraged or ignored the comments of Plaintiff’s co-workers, 

nor that Defendant bore any animus against Plaintiff as a result 

of any CEPA-protected activity. Based on this record, a 

reasonable jury could only conclude that Plaintiff abandoned his 

job, not that he was constructively terminated by his employer.

Therefore, Plaintiff fails to establish causation, and Defendant 

is entitled to summary judgment on the CEPA claim.

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Pretext

Even if Plaintiff could establish a prima facie case, 

including causation, Plaintiff fails to “demonstrate such 

weaknesses, implausibilities, inconsistencies, incoherencies, or 

contradictions in the employer’s proffered legitimate reasons 

for its action that a reasonable factfinder could rationally 

find them ‘unworthy of credence.’” Burton v. Teleflex Inc., 707 

F.3d 417, 427 (3d Cir. 2013). 

Defendant argues in its papers that Plaintiff abandoned his 

job after being instructed to return to work. At oral argument, 

Defendant was willing to concede, for purposes of this motion, 

that Defendant terminated Plaintiff for the legitimate, 

nondiscriminatory reason that Plaintiff was a “no call, no show”

for work on September 29 and October 4, 2010. In response, 

Plaintiff argues that the evidence suggests

that he decided not to return to work because he feared 

for his safety in an environment where his coworkers 

carry automatic weapons and management has shown no 

willingness to resolve the problems and that his 

employer made no real effort to reintroduce him into the 

workforce. The same facts that support the causal 

connection between Mr. Fischer’s whistleblowing activity 

and his termination, as detailed above, support the 

proposition that the reason given for his termination 

was pretextual.

(Pl. Opp’n at 17-18.) 

Plaintiff’s case for pretext relies on the assertion that 

Defendant showed “no willingness to resolve the problems” and 

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“made no real effort to reintroduce him into the workforce.”15

(Id. at 17.) Plaintiff contends that Defendant did not take 

seriously what he calls “an apparent investigation.” (Id. at 

15.)

In his meeting of September 9, 2010, Mr. Fischer . . . 

was confronted inexplicably by Bob Kindelein with the 

assertion that he (Mr. Fischer) had told the 

investigator that he had “made all that up,” meaning his 

concerns. (CMF, para. 46) This trivialization of his 

concerns only solidified the plaintiff’s belief that he 

was being marginalized by not only his co-workers but 

also by management. (CMF, para. 47) Furthermore, despite 

there clearly being a report generated as a result of 

the four-month-long investigation, as evidence by Mr. 

Sawders own comment, id. at para. 48, Mr. Sawders failed 

to take matter seriously enough to even remember whether 

he ever saw a report. (CMF, para. 48)

(Pl. Opp’n at 15-16.)

Plaintiff mischaracterizes the conversation with Kindelein. 

In the recorded conversation, Kindelein sought to confirm both 

whether Plaintiff told the investigator whether he had found

Katie Harris asleep on the job and “to clarify was she or wasn’t 

she.” (Def. Ex. F at 6:10-17.) In the excerpt cited by 

Plaintiff, Kindelein did not accuse Plaintiff of making up his 

safety concerns, as Plaintiff suggests. The exchange unfolded:

MR. KINDILIEN [sic]: . . . when you were talking to Domby 

[the investigator], you did not allege that she was 

sleeping.

15 The Court has already discussed how Plaintiff admitted he did 

not fear that he would be shot and no one threatened to beat him 

up, and so the fact that Plaintiff’s “coworkers carry automatic 

weapons” is not evidence that Plaintiff’s termination was 

pretextual.

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MR. FISCHER: No.

MR. KINDILIEN [sic]: Okay. Well, that’s what I’m trying 

to establish. Not whether you made it up or not. I threw 

that out there. . . . [T]he big thing is, you did not 

openly allege that you caught her sleeping.

MR. FISCHER: Absolutely not.

MR. KINDILIEN [sic]: . . . did you ever say to Joe Kelly 

“Yeah, I shut her up, because I said I would come out 

with what I know.”?

MR. FISCHER: False. Completely fal -- on my God, this is 

-- this is -- this is a -- this is a union retaliation. 

. . . 

MR. KINDILIEN [sic]: I don’t know -- I don’t know . . . 

All I know is . . . I got to look into it.

MR. FISCHER: Okay.

(Id. at 10:16-22, 11:4-24.) Nowhere does Kindelein trivialize 

Plaintiff’s safety concerns. Rather, Kindelein told Plaintiff 

that he was Plaintiff’s “advocate” and that “there’s going to be 

a lot of SCWE things addressed,” and urged Plaintiff to contact 

him if his co-workers bothered him upon his return to work. (Tr. 

of 9/10/10 Conversation at 69:2, 72:17-18, 74:13-14, 142:1-3, 

145:17-18.)

Plaintiff next argues that Sawders “failed to take matter 

seriously enough to even remember whether he ever saw a report.” 

(Pl. Opp’n at 16.) Plaintiff cites the following exchange in 

Sawders’s deposition, taken January 16, 2014, nearly four years 

after Crowell was fired and more than three years after 

Plaintiff was terminated:

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Q: During the time that he was in that administrative 

position did he report any such issues to you?

A: I don’t remember that either.

Q: Now, you said that you instigated or initiated an 

investigation that was essentially conducted by a third 

party; do you know the result of that investigation?

A: I don’t. If it was ever made available to me, I don’t 

remember.

Q: Do you recall if a written report was generated as a 

result of that investigation?

A: I’m 99.9 percent sure there was, but I don’t recall 

seeing it.

(Sawders dep. at 31:3-16.) Throughout Sawders’s deposition, he 

states repeatedly that he cannot presently recall certain 

details about the incidents in question, due to the passage of 

time. As he explained: “I don’t remember . . . because I’ve been 

at several plants . . . , but I can no longer remember if it was 

Salem Hope Creek, South Texas, Monticello, etc. So I’m sorry, I 

can’t answer either one of those questions because I just don’t 

remember.” (Id. at 15:7-12.) However, at the time of the events 

in question, as documented in one of Plaintiff’s own recordings, 

Sawders told Plaintiff, “I want to make sure you know that I’m 

aware of the issues raised. Obviously, I’ve seen the 

investigation.” (Tr. of 9/09/10 Conversation at 80:20-81:4.)

Sawders’s inability to recall the investigation report four 

years later does little, if anything, to undermine the 

undisputable fact that Sawders expressed awareness of the 

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investigation in Plaintiff’s own cotemporaneous recordings. 

Sawders also undisputedly discussed Plaintiff’s safety concerns 

more generally and possible solutions to the problem. Plaintiff 

points to no evidence that demonstrates that Defendant’s pledges 

of support and safety are “unworthy of credence.” Burton, 707 

F.3d at 427. 

Defendant does not rely on the investigation report as a 

basis for summary judgment. The report is not in evidence and 

was not requested by Plaintiff in discovery. Whether Domby’s 

report contained misleading or incorrect information about some 

of Plaintiff’s alleged conduct, or whether Sawders recalls 

seeing the report, does nothing to undermine Defendant’s actual 

responses to Plaintiff’s safety concerns and Defendant’s 

unequivocal expressions of support and protection upon 

Plaintiff’s return to work.

Plaintiff, through his attorney, informed Defendant that he 

would not be returning to work. (Def. Ex. C [Docket Item 40-11 

at 50].) Defendant nonetheless extended the deadlines to report 

by one week. Defendant terminated Plaintiff for not reporting to 

work. No reasonable jury could conclude, on the present record, 

that Defendant’s purported reason for terminating Plaintiff was 

pretext for getting rid of Plaintiff because he reported alleged 

safety violations. Therefore, even if Plaintiff has established 

a prima facie case of retaliation, his CEPA claim fails as a 

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matter of law, and Defendant is entitled to summary judgment as 

a matter of law.

V. Conclusion

The Court will grant Defendant’s motion for summary 

judgment because, to the extent that Plaintiff’s claim is based 

on his disclosure of Officer Crowell’s intoxicated state, 

Plaintiff has not established a causal link between his 

disclosure and his termination. Even if he can establish a 

causal link, he has not met his burden of showing that his 

termination was pretextual for retaliatory animus. To the extent 

Plaintiff’s claim is based on any other disclosures, Plaintiff’s 

claim fails because he cannot establish (1) that those 

disclosures constitute whistleblowing activity within the 

meaning of CEPA, and/or (2) that he held an objectively 

reasonable belief that the complained-of conduct violated any 

law, rule, regulation or clear mandate of public policy. An 

accompanying Order will be entered.

June 25, 2014 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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