                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0875-15T4

WAYNE MCCAW,

        Plaintiff-Appellant,

v.

VERNON TOWNSHIP BOARD OF EDUCATION,
VERNON TOWNSHIP SCHOOL DISTRICT,
BARBARA LINKENHEIMER, Individually,
and as Superintendent of Schools
for the Vernon Township School
District, PAULINE ANDERSON,
Individually and as Principal in the
Vernon Township School District,

     Defendants-Respondents.
________________________________________

              Argued February 14, 2017 – Decided July 25, 2017

              Before Judges Ostrer, Leone and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Sussex County, Docket
              No. L-0113-13.

              Christine Carey Lilore argued the cause for
              appellant.

              Eric L. Harrison argued the cause for
              respondents (Methfessel & Werbel, attorneys;
              Mr. Harrison and Raina Marie Pitts, on the
              brief).
PER CURIAM

       Plaintiff, a former custodian employed by defendant Vernon

Township     Board       of   Education   (Board),    appeals        from   the    trial

court's      order    granting        summary   judgment      to     defendants      and

dismissing         his        complaint    alleging         violations        of     the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:6A-255

to   -50,    his     civil     rights,    and   the   New    Jersey     Law    Against

Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42. Based on our

review of the record under the applicable law, we affirm in

part, vacate in part, and remand for further proceedings.

                                           I.

       In our review of the record before the trial court, we view

the facts and all reasonable inferences therefrom in the light

most favorable to plaintiff because he is the party against whom

summary judgment was entered. Brill v. Guardian Life Ins. Co. of

Am.,   142    N.J.    520,      540   (1995).   Applying      that    standard,      the

record before the trial court established the following facts.

       A. Plaintiff's Employment at Walnut Ridge Primary School

       Plaintiff commenced his employment as a custodian with the

Board in 2002, and was assigned to the Walnut Ridge Primary

School (Walnut Ridge). For the 2002 through 2005 school years,

plaintiff received favorable annual performance reviews from the

school's former principal, A. Aramando.

                                          2                                   A-0875-15T4
      Defendant Pauline Anderson became the school's principal

for the 2005-2006 school year. She selected plaintiff as the

evening      shift       custodial      foreman    for    which    he   received      an

additional stipend. Anderson gave plaintiff a favorable annual

performance evaluation, and recommended that he be reappointed

and receive a salary increase. A year later, near the conclusion

of the 2006-2007 school year, Anderson gave plaintiff another

favorable       performance            evaluation,       again     recommended      his

reappointment and a salary increase, but noted that "[a]ccepting

suggestions         and/or      criticism        from    the     administration       is

difficult for [plaintiff]; this causes problems with keeping the

'lines of communication' open."

      In     July    2007,     plaintiff      observed    school    contractors     dry

cutting concrete for a construction project, causing a cloud of

silica dust in the school. Plaintiff asked the head custodian,

Laura Stigler, and Anderson to direct that the contractor stop

the dry cutting. When they failed to do so, plaintiff filed a

complaint with the New Jersey Department of Labor (DOL) alleging

a   violation       of   the    Public      Employees    Occupational     Safety    and

Health Act (PEOSHA), N.J.S.A. 34:6A-25 to -50. Plaintiff and

fellow     custodians        Terri     McDonald    and    Dawn    Maffetone   jointly

filed    a   grievance         under    a   collective     negotiations    agreement

between the Board and the custodians' collective negotiations

                                             3                                A-0875-15T4
representative,    the    Vernon       Township     Education           Association

(VTEA).   The   grievance      alleged      the   silica        dust    created     a

hazardous work environment.

    The DOL investigated plaintiff's complaint and in August

2007, imposed a fine on the contractor for violating N.J.A.C.

12:100-13.5(a),   by     failing      to    use   "protective          devices"    to

prevent "diffusion of dust, stone, and other small particles."

The DOL did not fine or sanction the Board.

    Assistant Superintendent Fred Podorf denied the custodians'

grievance,   finding   there    was    no    violation     of    the     collective

negotiations agreement because the Board's environmental health

and safety consultant conducted air quality tests and determined

the school was safe. A copy of Podorf's denial of the grievance

was sent to defendant Barbara Linkenheimer who, at that time,

was employed by the Board as the Director of Special Services.

    Plaintiff alleges that immediately following the resolution

of the 2007 PEOSHA complaint and related grievance, Anderson's

attitude toward him changed. On August 30, 2007, Anderson sent

plaintiff a memorandum reminding him that "any and all concerns

dealing with Walnut Ridge need[ed] to be brought to [Anderson's]

attention first and foremost." On the same day, Anderson sent a

separate memorandum directing that plaintiff work "in tandem"



                                      4                                    A-0875-15T4
with a disabled custodian, Rich Duffy, to ensure that classrooms

were thoroughly cleaned on a daily basis.

     In a September 13, 2007 memorandum, Anderson documented a

verbal warning issued to plaintiff for failing to work in tandem

with Duffy, and for insubordination because he raised his voice

to Anderson when she advised him of his failure. The memorandum

directed plaintiff "for the third time" to work with Duffy.

     In his opposition to defendants' summary judgment motion,

plaintiff denied refusing to work with Duffy and raising his

voice   to   Anderson.    Instead,   plaintiff   asserted   that    Anderson

assigned him to work with Duffy in retaliation for his filing of

the PEOSHA complaint and related grievance.1

     Seven months later, in March 2008, Anderson gave plaintiff

another      favorable    performance    evaluation,     and   recommended

plaintiff's reappointment and a salary increase.

     In May 2008, during plaintiff's work shift, he attended a

meeting      in   the    school   with   McDonald,     Maffetone,    and     a

representative from the VTEA. The meeting was scheduled without

Anderson's knowledge or approval. Linkenheimer, who succeeded


1
  Plaintiff also relied on Maffetone's deposition testimony
stating that Anderson retaliated against her for her joint
filing of the grievance by assigning her to perform outside
duties knowing she suffered from asthma, and against McDonald
for filing the grievance by changing her work hours.


                                     5                              A-0875-15T4
Podorf as Assistant Superintendent during the 2007-2008 school

year,2 met with plaintiff the next day and advised him to not

conduct     union       meetings       during    work      hours.    Linkenheimer's

instructions were memorialized in a May 13, 2008 memorandum,

along with a directive to take breaks at designated times.

       In   his   affidavit       in    opposition      to    defendants'     summary

judgment motion, plaintiff states the meeting occurred during

one of his permitted breaks. He also states that prior to his

receipt     of    the    memorandum,       there     was     no   requirement      that

custodians'       breaks     be        taken    at   scheduled       times.      Board

Superintendent John Alfieri also testified there was no policy

requiring that custodians take their breaks at scheduled times.

       Upon receipt of Linkenheimer's memorandum, plaintiff felt

ill and was taken from the school in an ambulance. He was out of

work from May until October 2008. Plaintiff filed a workers'

compensation claim, which was handled by the Board's insurance

adjuster. The claim was denied.

       In December 2008, a building aide reported that plaintiff

used foul language in front of her and students. The allegations

were    discussed       at   a     meeting      between      plaintiff,   Anderson,



2
  The record does not reflect the date Linkenheimer became the
Assistant Superintendent.


                                           6                                  A-0875-15T4
Linkenheimer, and a VTEA representative. No action was taken

against plaintiff based on the report.3

      In   March       2009,   Anderson        provided       her   fourth    favorable

performance        evaluation        of   plaintiff,      "commended         [him]       for

working to develop more open and effective communication with

the   administration,"         and    recommended       his    reappointment         and    a

salary increase.

      A    year    later,      Anderson     completed         her   fifth    and      final

favorable     performance         evaluation       of     plaintiff.         She      again

recommended plaintiff for reappointment and a salary increase.

      On March 17, 2010, Anderson sent plaintiff a memorandum

stating it had been brought to her attention that two windows

were left open and an exterior door was left unlocked at the

conclusion        of   plaintiff's        work    shift       the   previous         night.

Anderson noted that Duffy, who was absent during the shift,

usually did the security detail, but that it was imperative for

plaintiff, as night foreman, to ensure the building was locked




3
   Plaintiff asserts in his brief that Anderson tried to
discipline him based on the employee's report. The undisputed
facts show only that the employee made the report and Anderson
and Linkenheimer responded to it. In support of his argument,
plaintiff relies on unsworn allegations contained in a complaint
in a civil action filed by another former Board employee, Cecil
Diaz.


                                           7                                       A-0875-15T4
and secure. Anderson advised plaintiff that she expected the

situation would not be repeated.

       In   a    March     25,   2010    memorandum        to     Anderson,    plaintiff

denied it was his responsibility to ensure the windows and doors

were   secure        at   the    end    of   his    work     shift,      and   faulted    a

substitute        custodian.      Plaintiff        noted    the    "nice"      review    he

received from Anderson a few weeks earlier, and stated that he

"thought" he and Anderson "were in good standing[]."

       Prior to receiving plaintiff's memorandum, Anderson took

plaintiff       on   a    walk-through       inspection      of    the    building.     She

showed plaintiff areas that required dusting, cleaning, and the

replacement of light bulbs. Following the inspection, plaintiff

reported to the VTEA representative that he felt ill, and left

the school. On the next workday, plaintiff's wife advised the

school that plaintiff was ill and would not report to work.

Anderson        prepared    a    March   26,     2010      memorandum     to   plaintiff

confirming the inspection results, detailing her observations,

and noting that she expected plaintiff's work performance in

cleaning and maintaining the areas to "improve immediately."

       On March 31, 2010, Anderson prepared another memorandum to

plaintiff confirming her receipt of plaintiff's March 25, 2010,

memorandum in which he disputed he was responsible for the open

windows and unlocked door. Anderson also referenced the March

                                             8                                   A-0875-15T4
26,    2010   inspection   results,       issued   a   "written   warning"    to

plaintiff to improve the quality of his work, and directed that

he secure the building at the end of his shift.

       Plaintiff responded to Anderson's memorandum in an April

21, 2010 letter. Plaintiff stated a willingness to address the

issues raised in Anderson's memorandum and did not dispute the

existence of the cleaning deficiencies. Plaintiff explained the

deficiencies were the result of his being assigned tasks outside

of his job description, and that he thereafter would perform

only the custodial duties listed in his job description. He also

asserted that Anderson's approach to him had changed since he

filed the PEOSHA complaint, and that he was aware of his rights

under CEPA.

       B. Plaintiff's Employment at Lounsberry Hollow School

       Effective March 29, 2010, the Board's newly hired director

of facilities, Matt DeLaRosa, became responsible for the direct

supervision of custodians. Plaintiff was transferred from Walnut

Ridge to the Lounsberry Hollow School (Lounsberry),4 where he

worked during the 2010-2011 school year and until his employment

was terminated in March 2012. While at Lounsberry, plaintiff was

supervised by DeLaRosa, school principal Stewart Stumper, and


4
    The precise date of the transfer is not clear from the record.


                                      9                               A-0875-15T4
coordinating               custodian         Thomas      Palmisano.     DeLaRosa        prepared      a

favorable performance evaluation of plaintiff in February 2011,

and       recommended             plaintiff         for     reappointment        and     a     salary

increase for the 2011-2012 school year.

          In     a     November          2,     2011      memorandum,        DeLaRosa         advised

plaintiff            he     would       be    transferred       to     the   high       school      and

assigned             the     overnight          shift.      Upon     his     receipt         of    the

memorandum, plaintiff reported suffering from an anxiety attack,

and left work to seek medical care.

          The next day, plaintiff advised he would not be at work due

to    a    planned           doctor's         appointment,       but     did   so       later      than

required under the Board's attendance policy. DeLaRosa issued a

November         9,        2010     memorandum            suspending     plaintiff           for   ten

workdays due to plaintiff's failure to report his absence in

accordance            with        the        policy.      The   VTEA     filed      a    grievance

challenging the suspension. An arbitrator sustained plaintiff's

violation of the attendance policy but reduced the suspension

from ten to two days. A court confirmed the arbitrator's award.

          Plaintiff's doctor wrote a letter to DeLaRosa advising that

the planned transfer to the high school and change of hours

would          adversely          affect       plaintiff's         health.     Another         doctor

examined         plaintiff           at       the     Board's      request     and      concurred.



                                                    10                                       A-0875-15T4
Plaintiff was not transferred to the high school and continued

working at Lounsberry during the same shift.

       In February 2012, DeLaRosa conducted an annual performance

evaluation of plaintiff, and graded plaintiff's performance as

"very     good"    or    "good"       in     all       areas.    DeLaRosa       recommended

plaintiff's       reappointment            and     a    salary         increase    for      the

following school year.

       In his affidavit in opposition to defendants' motion for

summary judgment, plaintiff stated that on February 28, 2012, he

wrote a note in the custodians' logbook stating: "why are we

signing    the    logbook       by    the    people       who    are     training.       Please

explain . . . in writing." Plaintiff explained in his affidavit

that he wrote the note to question why DeLaRosa "wanted [him] to

sign off on the training having been done by employees for their

boiler     license       when    [plaintiff]            did      not     give     them     that

training."      Plaintiff       stated       he    made    the    inquiry       after     being

directed    by     a    co-worker5      to    sign      the     book,     and   because      he

believed it was illegal to sign the logbook falsely attesting

that    other     custodians         attended      training.       Palmisano       responded



5
  The plaintiff identified the co-worker as "George Leone." We
note that the George Leone to whom plaintiff makes reference is
no relation to Judge George Leone, J.A.D., who has participated
in the decision in this matter.


                                             11                                      A-0875-15T4
that plaintiff did "not have to sign anything in the logbook nor

does anyone else. Just keep doing what you have been doing."

    Six days later, Palmisano wrote plaintiff a note in the

logbook stating that plaintiff                    "did not lock the front main

entrance    door       last    night."       Palmisano     reminded        plaintiff    "to

check [the front door] each night." Plaintiff responded in a

note to Palmisano: "Where does it say it is my front door[?]"

Plaintiff       further       wrote:    "I     believe     it   is    everybod[y's]       to

check! Please show me something in writing. Thank you."

    In     plaintiff's             affidavit      in   opposition     to    the   summary

judgment motion, he asserted that all of the custodians were

responsible for securing the doors. Plaintiff stated that he

worked in the area of the front doors with another custodian,

Brian DiNapoli, and that DiNapoli was not advised that he failed

to ensure the doors were locked.

    In      a    March        8,     2012    memorandum,        Linkenheimer      advised

plaintiff       that    his    note     to     Palmisano    was      inappropriate      and

bordered on insubordination. Linkenheimer provided a copy of the

custodians' job description, which included the duty to secure

the school's doors and windows. Linkenheimer also attached a

color-coded map that she explained depicted the areas and doors

for which plaintiff was responsible. The memorandum also states

that plaintiff is to respond appropriately to requests made by

                                             12                                   A-0875-15T4
his    supervisors,         and    that     his    attitude       had    to     improve

immediately or disciplinary action might be taken.

       Plaintiff's         affidavit      explained       that     prior       to     the

Linkenheimer memorandum there had never been a color-coded map

delineating the areas and doors for which he was responsible. He

also states the map shows that he and DiNapoli were responsible

for the front doors, but DiNapoli was never advised he failed to

lock the doors or disciplined for the alleged unlocked doors.

       Four   days    later,      Palmisano     reported    the    front      doors    of

Lounsberry had again been left unlocked, and also that the flag

had been left outside. Plaintiff met with Stumper and other

school administrators, and signed a written statement explaining

that    he    did    not    know     what      happened    with    the     doors      but

acknowledged        leaving    the   flag      outside.    In    his    affidavit      in

opposition     to    defendants'       summary     judgment      motion,      plaintiff

stated that he followed a checklist each evening to ensure the

doors were locked and checked the doors from the outside to make

sure they did not open. He also attributed the issues concerning

unlocked doors to mechanical problems with the door locks.

       C. Plaintiff's Termination

       Following a Board meeting concerning plaintiff's employment

status, Linkenheimer sent plaintiff correspondence dated March

16, 2012, terminating his employment and stating:

                                          13                                   A-0875-15T4
              On March 12, 2012, you once again did not
              lock the front doors of [Lounsberry] as you
              were directed to do in my memo of March 8.
              In addition on March 12, you did not lower
              the flag and bring it indoors.

              As a result of your repeated failure to
              follow administrative directives and your
              repeated    failures    to    perform    the
              requirements of your job, you are being
              terminated from your position as a full-time
              custodian effective March 16, 2012[,] in
              accordance with Step 5 of the disciplinary
              action of the VTEA contract.

       On March 12 and 16, 2012, plaintiff's counsel sent letters

to the Board requesting that it retain school video recordings

from    the    evenings       of   March    5    and   12,     when   it   was    alleged

plaintiff failed to lock the school's front doors.

       By     letter      dated     April       25,    2012,       Linkenheimer         sent

plaintiff's counsel video recordings of portions of the evenings

of March 5, 8, 12 and 15. Linkenheimer explained the Board could

not    provide      the   balance     of   the    requested        recordings     because

recordings         were   generally    retained        for    only    thirty     days   and

counsel's requests had not been received within that timeframe.

In plaintiff's affidavit opposing defendants' summary judgment

motion,       he     states    that    Linkenheimer           admitted     during       her

deposition that she received plaintiff's counsel's requests to

preserve      the    video     recordings       before       the   expiration     of     the

Board's thirty-day retention period.


                                           14                                     A-0875-15T4
    Plaintiff       sought   unemployment   benefits         before      the    DOL,

which the Board opposed. The DOL determined the Board failed to

establish    plaintiff's     termination    was   the    result       of     severe

misconduct and awarded plaintiff benefits. It also determined

plaintiff was disqualified from receiving benefits for a short

period following his termination because he failed to actively

search for new employment as required by N.J.S.A. 43:21-4(c).

    D. The Litigation

    Plaintiff filed a four-count complaint against defendants.

In the first count, plaintiff alleged that following his 2007

PEOSHA complaint, defendants violated CEPA by subjecting him to

numerous    adverse    retaliatory     employment    actions,       an     ongoing

hostile work environment, and the termination of his employment.

Plaintiff    also     alleged   the    termination      of    his     employment

violated CEPA because it was in retaliation for his refusal to

sign the custodians' logbook attesting to training that other

custodians had not received.

    In the second count, plaintiff alleged a separate violation

of CEPA, claiming defendants retaliated against him because he

asserted his rights as a whistleblower under CEPA. Plaintiff

claimed defendants retaliated by making false allegations about

his work performance in order to deny him unemployment benefits

to which he was otherwise entitled, and otherwise maliciously

                                      15                                   A-0875-15T4
interfered with his grievance rights under the VTEA collective

negotiations agreement.

       Count      three        alleged           defendants'        actions       violated

plaintiff's due process and equal protection rights under the

New     Jersey    Constitution.          In      count     four,    plaintiff      alleged

defendants violated the NJLAD by purposely engaging in a course

of    conduct     to    aggravate      plaintiff's             medical   conditions       and

contesting       plaintiff's        entitlement           to    workers'    compensation

benefits.

       Following       the    close    of     discovery,         defendants   moved       for

summary    judgment.         The   court      heard      oral    argument   and    granted

defendants' motion. The court later issued a written decision

detailing its reasoning.

       The trial court found the undisputed facts showed plaintiff

filed    the     PEOSHA      complaint      in    2007     while    working   at     Walnut

Ridge. The court also found that during plaintiff's tenure at

Walnut Ridge, he received "only two" disciplinary memoranda and

in the three years following plaintiff's 2007 PEOSHA complaint,

he    received         "overall       satisfactory             evaluations"     and       was

reappointed each year. The court found that in 2010, plaintiff

was transferred from Walnut Ridge to Lounsberry, and ultimately

terminated       in    2012    "due      to      his     failure    to   adhere      to    an



                                            16                                     A-0875-15T4
administrative        directive     and     secure     the     front    main        entrance

doors at Lounsberry."

      The court dismissed plaintiff's CEPA claim, concluding it

was based upon "speculation that there is a substantial nexus

between      [plaintiff's       PEOSHA]    complaint      in    July        2007    and   his

eventual termination approximately five years later." The court

noted    plaintiff      was   terminated       while    working        in    a     different

school "with a different principal under a completely different

set     of   supervisors,"       all   of      whom    were     not     involved          with

plaintiff's      July    2007     PEOSHA       complaint.      The     court        did   not

address any of plaintiff's remaining claims but issued an order

granting defendants' motion and dismissing the complaint. This

appeal followed.

                                          II.

      We begin by observing that plaintiff's CEPA claims were

premised on multiple theories, only one of which was addressed

by the trial court. The trial court considered only plaintiff's

count one claim that defendants violated CEPA by terminating his

employment in retaliation for his filing of the 2007 PEOSHA

complaint.      We    first      consider       the    trial      court's           decision

dismissing     that     claim    and   then     address      plaintiff's           remaining

claims.



                                          17                                        A-0875-15T4
      A.     Dismissal Of Plaintiff's Claim He Was Terminated For
             Filing The PEOSHA Complaint

      "[W]e review the trial court's grant of summary judgment de

novo under the same standard as the trial court." Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199

(2016). "The trial court's conclusions of law and application of

the   law   to    the    facts    warrant      no     deference       from    a    reviewing

court."     W.J.A.      v.     D.A.,    210    N.J.    229,     238       (2012).    Summary

judgment must be granted if "the pleadings, depositions, answers

to interrogatories and admissions on file, together with the

affidavits,      if     any,    show    that    there     is    no    genuine       issue    of

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).

      We    must        "consider       whether       the      competent          evidential

materials presented, when viewed in the light most favorable to

the   non-moving         party,     are   sufficient           to    permit    a    rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving       party."       Brill,   supra,      142     N.J.     at    540.     We   "must

accept as true all evidence which supports the position of the

party defending against the motion and must accord [that party]

the benefit of all legitimate inferences which can be deduced

therefrom." Id. at 535 (quoting Pressler, Current N.J. Court

Rules, comment on R. 4:40-2 (1991)).


                                          18                                         A-0875-15T4
      "CEPA prohibits an employer from taking adverse employment

action     against   any    'employee'      who    exposes   an     employer's

criminal,    fraudulent,     or   corrupt    activities."        D'Annunzio      v.

Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007) (citing

N.J.S.A. 34:19-3). To establish a prima facie case of a CEPA

violation, a plaintiff must demonstrate:

            (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.

            [Lippman v. Ethicon, Inc., 222 N.J. 362, 380
            (2015) (quoting Dzwonar v. McDevitt, 177
            N.J. 451, 462 (2003)).]

      Here, it is undisputed plaintiff made a prima facie showing

of   the   first   three   elements    of   his   CEPA   claim    that    he   was

terminated in retaliation for filing the PEOSHA complaint. It is

undisputed plaintiff reasonably believed the dry cutting at the

school violated the law, and that he performed a whistle-blowing

activity under N.J.S.A. 34:19-3(c) by filing his 2007 PEOSHA



                                      19                                 A-0875-15T4
complaint. Plaintiff also suffered an adverse employment action,

the termination of his employment.

       The court therefore focused on whether defendant made a

prima facie showing of a causal connection between his whistle-

blowing activity in 2007 and his termination in 2012, sufficient

to survive defendants' motion for summary judgment. See Hitesman

v.    Bridgeway,    Inc.,    218    N.J.     8,    29   (2014)      (noting    a   CEPA

"plaintiff [has] the burden to demonstrate a causal connection

between [the] whistle-blowing activity and [the] termination").

Thus, "[a]s in most CEPA cases . . . th[is] appeal turn[s] on

the fourth element: evidence of a causal connection." Donofry v

Autotore Systems, Inc., 350 N.J. Super. 276, 291 (App. Div.

2001).   Causation     may    be    proven    by    direct     or    circumstantial

evidence that permits an inference of retaliation based on all

of the circumstances. Battaglia v. United Parcel Service, Inc.,

214   N.J.   518,   558-59     (2013);     Romano       v.   Brown    &     Williamson

Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995). "[T]he

plaintiff    must   show     that   the    'retaliatory       discrimination        was

more likely than not a determinative factor in the decision.'"

Donofry, supra, 350 N.J. Super. at 293.

       In determining whether plaintiff has produced prima facie

evidence     of     causation,       courts        typically        focus     on    the

"circumstances      surrounding      the     employment      action,"        including

                                      20                                      A-0875-15T4
temporal proximity between the protected conduct and the adverse

employment action. Maimone v. City of Atl. City, 188 N.J. 221,

237   (2006).     However,       temporal         proximity    is    not    dispositive.

Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App.

Div. 2002), app. dismissed, 177 N.J. 217 (2003). "Where the

timing alone is not 'unusually suggestive,' the plaintiff must

set forth other evidence to establish the causal link." Young v.

Hobart West Grp., 385 N.J. Super. 448, 467 (App. Div. 2005).

      Here,      the   trial      court       determined       plaintiff     failed        to

demonstrate a causal connection between the filing of the 2007

PEOSHA   complaint      and      the   termination        of   his    employment       five

years    later    because      the     termination       decision     was    made     by    a

"completely      different       set    of    supervisors"      at    Lounsberry       than

those who supervised plaintiff at Walnut Ridge. The court also

determined there was no causal connection because plaintiff left

the doors to Lounsberry open on two occasions and was terminated

for that reason.

      Based on our review of the record, we are convinced the

court     correctly       determined              plaintiff    failed       to    present

sufficient evidence upon which a jury could reasonably conclude

defendants terminated plaintiff's employment in retaliation for

plaintiff's      filing     of    the     2007       PEOSHA    complaint.        Hitesman,



                                             21                                   A-0875-15T4
supra,     218   N.J.   at      29.   However,     our     conclusion      is       based     on

reasons different than those of the trial court.

      Although the record supports the court's finding plaintiff

worked     under   different          direct     supervisors       when    he       made    the

PEOSHA     complaint       in      2007    and     at     the    time     of        his     2012

termination,       there     was      no   evidence      showing    plaintiff's             2012

supervisors at Lounsberry made the decision to terminate his

employment. Rather, the termination decision was made by the

Board, and was "driven" - according to Superintendent Alfieri -

by   the     Assistant       Superintendent             Linkenheimer.      Linkenheimer

authored the letter terminating plaintiff's employment, and the

evidence shows Linkenheimer was aware plaintiff made the 2007

PEOSHA     complaint.6       Linkenheimer         was     also     aware       of     all    of

Anderson's actions affecting plaintiff following his filing of

the 2007 PEOSHA complaint and through his transfer from Walnut

Ridge to Lounsberry.7 Thus, the fact that plaintiff had different


6
  Linkenheimer testified at her deposition that she became aware
plaintiff filed the PEOSHA complaint at some point but could not
remember when. Linkenheimer was copied on Podorf's July 2007
written denial of plaintiff's grievance, which asserted the dry
cutting created a hazardous condition in Walnut Ridge.
7
  Linkenheimer was copied on every memorandum sent by Anderson to
plaintiff following plaintiff's filing of the PEOSHA complaint.
The first memorandum was sent on August 30, 2007, and required
that plaintiff bring any and all concerns dealing with Walnut
Ridge to Anderson "first and foremost." Given that the
                                                      (continued)

                                           22                                        A-0875-15T4
direct supervisors in 2012 than he did when he made his 2007

PEOSHA    complaint    did   not,    as    suggested    by   the        trial     court,

require a finding there was no causal connection between the

complaint and his termination.

    The motion judge also erred by determining there was no

causal    connection    because      plaintiff       left    the        school     doors

unlocked on the two occasions in May 2012. In his affidavit in

opposition to the summary judgment motion, plaintiff disputed he

was solely responsible for locking the doors and asserted that

as a matter of fact the doors were locked. The court therefore

erred by relying on material facts that were disputed.

    Nevertheless, we are satisfied that defendants' motion for

summary   judgment     was   properly      granted    because      the     record       is

devoid    of   any    evidence      demonstrating      that,       to     the     extent

Linkenheimer    was    involved      in    the   termination       of     plaintiff's

employment, the decision was in any way causally connected to

plaintiff's filing of the 2007 PEOSHA complaint. See Cortez v.

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (explaining

(continued)
memorandum was sent immediately after the resolution of
plaintiff's PEOSHA complaint, it can be reasonably inferred
Anderson directed that plaintiff forego any future reports to
outside agencies in favor of reporting issues directly to
Anderson. In his affidavit in opposition to defendants' summary
judgment, plaintiff stated that he first reported the dry
cutting issue to Anderson but that she did nothing.


                                      23                                        A-0875-15T4
that although on a motion for summary judgment, a court must

view the evidence in the light most favorable to the non-movant,

"it is evidence that must be relied upon to establish a genuine

issue of fact"), certif. denied, 220 N.J. 269 (2015). There is

no   direct     evidence     Linkenheimer           or     the      Board    considered

plaintiff's      five-year       old   PEOSHA           complaint    in     making    the

decision to terminate his employment. Nor could any causal link

between   the    PEOSHA     complaint        and    plaintiff's       termination      be

reasonably inferred. During the five years following the PEOSHA

complaint,      plaintiff    received         annual       salary     increases,      was

reappointed      annually,       and    suffered           from     only     occasional

criticisms of his job performance and conduct. Based on the

evidence presented, we discern no reasoned basis supporting a

conclusion that plaintiff's termination was causally connected

to his filing of the PEOSHA complaint five years earlier.

     Instead, the evidence shows the termination was based on

Palmisano's     reports     to   Linkenheimer           that   plaintiff     failed    to

secure    Lounsberry's      front      doors       on    two   occasions.      Although

plaintiff disputes he was responsible for securing the doors and

that the doors were left unlocked, the evidence shows Palmisano

reported to Linkenheimer that plaintiff failed to secure the

doors on two occasions, and that the failures were the reason

for plaintiff's termination. There is no evidence Palmisano was

                                        24                                     A-0875-15T4
aware plaintiff filed the 2007 PEOSHA complaint, and thus, there

is no evidence Palmisano reported plaintiff's failure to secure

the building in retaliation for plaintiff's PEOSHA complaint.

      We therefore affirm the court's order granting defendants

summary judgment on plaintiff's count one CEPA claim alleging he

was     terminated   in    retaliation     for      filing    the    2007     PEOSHA

complaint.8

      B.    Plaintiff's Remaining Claims

      We find, however, the court erred by narrowly construing

the     complaint    to    assert   only      the    count    one    claim       that

defendants violated CEPA by terminating plaintiff in retaliation

for the PEOSHA complaint. The complaint also included a count

one claim that defendants violated CEPA by terminating plaintiff

in retaliation for reporting water contamination, engaging in

union    activity,   and    objecting    to    a    request   that    he    falsely

attest to other custodians' training; a count one hostile work


8
  Because we conclude plaintiff failed to establish a prima facie
violation of CEPA based on his claim he was terminated in
retaliation for filing the 2007 PEOSHA complaint, we need not
proceed to the McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), burden-shifting
framework. See Victor v. State, 203 N.J. 383, 408 (2010)
(explaining that "[a]lthough most employment discrimination
claims proceed in accordance with the McDonnell Douglas burden-
shifting paradigm," the plaintiff bears the initial burden of
demonstrating a prima facie case).



                                    25                                      A-0875-15T4
environment    claim;      and   the     causes      of    action   in     counts     two,

three, and four. The court's order granted defendants summary

judgment on the claims, but the court's opinion did not address

or consider them.

       We are mindful that we conduct a de novo review of summary

judgment orders, Templo Fuente De Vida Corp., supra, 224 N.J. at

199, and determine the validity of a trial court's order and not

its reasoning, Janiec v. McCorkle, 52 N.J. Super. 1, 21 (App.

Div. 1958). But Rule 4:46-2(c) requires that when deciding a

motion for summary judgment, "[t]he court shall find the facts

and state its conclusions in accordance with R. 1:7-4." "Failure

to   make   explicit      findings     and     clear      statements     of    reasoning

[impedes     meaningful      appellate         review        and]   'constitutes          a

disservice to the litigants, the attorneys and the appellate

court.'"    Gnall    v.    Gnall,      222    N.J.    414,    428   (2015)      (quoting

Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).

       Our de novo standard of review of summary judgment orders

does not render the rationale underlying the requirements of

Rule   1:7-4   a    nullity,     and    does    not    require      that      this   court

consider and decide motions which were unaddressed by the trial

court. To conclude otherwise would require this court to decide

in the first instance motions that were presented to the trial

court but, for whatever reason, were overlooked.

                                         26                                      A-0875-15T4
      We are therefore constrained to vacate that portion of the

court's     order        granting            defendants          summary            judgment         on

plaintiff's count one claim he was terminated in retaliation for

complaining about water contamination, participating in union

activity, and refusing to falsely attest to other custodians'

training; the count one hostile work environment claim; and the

causes     of       action     in     counts        two,     three,         and     four     of     the

complaint. See Rutgers Univ. Student Assembly v. Middlesex Cty.

Bd.   of   Elections,         438     N.J.     Super.      93,     107      (App.        Div.     2014)

(finding        a    court's        failure     to     make      findings           of     fact     and

conclusions of law on motion cross-motions for summary judgment

as required by Rule 1:7-4(a) required remand to motion court).

Defendants' motion for summary judgment on those claims was not

considered or decided by the court, and we are convinced it is

inappropriate that we decide the motion on those claims for the

first time on appeal.

      We do not express any opinion on the merits of the claims,

defendants'         summary     judgment            motion    as       to     the        claims,     or

plaintiff's          opposition.          We        remand       for        consideration            of

defendants'          motion         for   summary          judgment          and         plaintiff's




                                               27                                           A-0875-15T4
opposition as to those claims,9 and the issuance of a decision

with the requisite findings of fact and conclusions of law. R.

4:46-2(c); R. 1:7-4.

    Affirmed in part, vacated and remanded in part. We do not

retain jurisdiction.




9
  We do not limit the remand court's discretion to request or
permit supplemental briefs or pleadings by the parties in
support of defendants' summary judgment motion and plaintiff's
opposition.


                            28                        A-0875-15T4
