                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3846-18T1

EMILIANO RIOS,

     Plaintiff-Appellant,            APPROVED FOR PUBLICATION

                                             April 14, 2020
v.
                                         APPELLATE DIVISION
MEADOWLANDS HOSPITAL
MEDICAL CENTER,

     Defendant-Respondent.
__________________________

           Argued January 27, 2020 – Decided April 14, 2020

           Before Judges Messano, Ostrer 1 and Vernoia.

           On appeal from the Superior Court of New Jersey,
           Law Division, Hudson County, Docket No. L-0142-
           17.

           Thomas A. Mc Kinney argued the cause for appellant
           (Castronovo & McKinney, LLC, attorneys; Thomas A.
           Mc Kinney, of counsel; Megan Frese Porio, on the
           briefs).

           Margaret O'Rourke Wood argued the cause for
           respondent (Chiesa Shahinian & Giantomasi PC,
           attorneys; Margaret O'Rourke Wood and Aaron Paul
           Davis, on the brief).

1
  Judge Ostrer did not participate in oral argument. The parties consented to
Judge Ostrer's participation in the decision without further oral argument.
      The opinion of the court was delivered by

VERNOIA, J.A.D.

      Plaintiff Emiliano Rios, an emergency medical technician (EMT)

formerly employed by defendant Meadowlands Hospital Medical Center,

appeals from an order granting defendant summary judgment and dismissing

his complaint alleging retaliatory discharge in violation of the New Jersey Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and from an order

denying his motion for reconsideration. Based on our review of the record, we

are convinced the motion court erred in its determination plaintiff did not

present sufficient evidence establishing the good faith and reasonable basis

prerequisite for a LAD retaliatory discharge claim established by our Supreme

Court in Carmona v. Resorts International Hotel, Inc., 189 N.J. 354, 372

(2007), and we reverse and remand for further proceedings.

                                       I.

      In our review of the record before the motion court, we accept 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, we summarize the pertinent facts as follows.




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       Defendant employed plaintiff as an EMT in its Emergency Medical

Services Department (EMS) from August 2012 to July 16, 2015, when

defendant terminated plaintiff's employment. From December 2013 through

the termination of his employment, plaintiff held the title of Supervisor of

EMS.

       In November 2013, defendant terminated plaintiff's co-employee and

friend Heatherlee Bailey from her employment in EMS. In April 2014, Bailey

filed a sexual harassment complaint against defendant and several others.

Bailey had never informed plaintiff she was harassed while employed by

defendant; plaintiff was unaware of any alleged harassment against Bailey; and

plaintiff never reported any harassment or discrimination to defendant's human

resources department. Bailey never told plaintiff she was filing the lawsuit,

and plaintiff never encouraged her to do so. Thus, plaintiff did not know if

there was a good faith or reasonable basis for Bailey's complaint.

       After service of Bailey's complaint on defendant, Rostik Rusev, the

Coordinator of EMS, "repeatedly told" plaintiff "he needed to be a team player

and [d]efendant needed his support against the Bailey lawsuit." Rusev showed

plaintiff "papers" from the lawsuit and said "[p]laintiff need[ed] to play ball

and help the hospital." Plaintiff described Rusev as "scared or . . . frantic"

when he showed plaintiff "papers that [said] Heatherlee Bailey versus



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Meadowlands Hospital," and Rusev said he "need[ed] [plaintiff] to help [him]

out" and "go . . . and get a restraining order" against Bailey. Rusev also said

the hospital's owner "expect[ed] [plaintiff] to help out." Plaintiff did not agree

to seek a restraining order against Bailey.

      Plaintiff testified about a conversation he had with Rusev and Glenn

Berchtold, an Assistant Director of EMS, during which they discussed

plaintiff's possible appointment as an Assistant Director of EMS. According to

plaintiff, Rusev said that, in order for the appointment to happen, plaintiff

needed to "play ball" and say Bailey "was giving [him] a hard time." Plaintiff

testified Rusev said, "that's going to be the key for us to win this" and "I need

you in on this." Plaintiff asserted that, in response, he told Rusev that he

"wasn't all that comfortable with that," and Rusev said plaintiff was "an

employee of the hospital and [was] required to protect the hospital."

      Plaintiff testified he had many conversations with Rusev concerning the

Bailey lawsuit and, at one point, Rusev said that when plaintiff met with

defendant's lawyers, he "need[ed] to say . . . there was a hostile work

environment"; and that Bailey "was caught giving [plaintiff] a hard time, . . .

[plaintiff] didn't want to come into work, [and] . . . [Bailey] was giving

[plaintiff] and [another employee] a hard time." Rusev also said he "need[ed]




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[plaintiff] to go downstairs and tell all these employees to get any complaints

against [Bailey], put them in writing, and bring them up to me."

      Plaintiff asserted that at various times he told Rusev he was not

comfortable with Rusev's instructions to make the requested statements

concerning Bailey or to obtain the requested complaints; the statements Rusev

asked he make about Bailey were not true; and he objected to Rusev's request

that he fill the role Rusev wanted him to play in defending against Bailey's

complaint. Plaintiff claims that following his objections to Rusev's requests

and his refusals to accede to the requests, defendant retaliated by removing

some of his job responsibilities as EMS supervisor and by later terminating his

employment.

      Following his termination, plaintiff filed a complaint against defendant

alleging he "refused to cooperate with [d]efendant" in Bailey's lawsuit and

"refus[ed] to lie about" Bailey. He claimed defendant retaliated against him in

reprisal for his refusals, and defendant's actions violated the LAD.

      Following completion of discovery, defendant moved for summary

judgment, asserting plaintiff could not establish the requisite elements of a

retaliatory discharge claim under N.J.S.A. 10:5-12(d). See generally Craig v.

Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995) (defining the

elements of a LAD-retaliation claim). In part, defendant also argued plaintiff



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lacked evidence establishing the prerequisite to a LAD-retaliation claim

defined by our Supreme Court in Carmona; that plaintiff had a reasonable and

good faith belief in the underlying discrimination complaint that triggered the

alleged retaliatory actions. 189 N.J. at 373.

      The court granted defendant's motion on narrow grounds. It determined

the undisputed facts established plaintiff had no knowledge concerning

Bailey's underlying complaint, and, therefore, he did not have a "good faith,

reasonable basis for complaining about the workplace behavior." The court

concluded plaintiff could not sustain his burden of proving the prerequisite

required by the Court in Carmona, and it granted defendant's summary

judgment motion for that reason alone.

      The court later denied plaintiff's reconsideration motion.    The court

again relied on Carmona and found the prerequisite applied "both to employees

opposing discriminatory conduct directed at them as well as employees who

purportedly assist or participate in proceedings of their colleagues regarding

alleged discriminatory conduct."

      Plaintiff appeals from the court's orders granting defendant summary

judgment and denying his reconsideration motion. Plaintiff contends the court

erred by interpreting Carmona to require he demonstrate a good faith and

reasonable basis for Bailey's complaint because he did not allege Bailey's



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complaint triggered the retaliation against him.      He contends the Carmona

prerequisite only applies to retaliation claims premised on the filing of a

complaint by the plaintiff, whereas he was retaliated against in violation of the

LAD, N.J.S.A. 10:5-12(d), for opposing defendant's efforts to retaliate against

Bailey. He argues the motion court's application of Carmona constitutes error

requiring reversal of the court's orders.

                                          II.

      We review the grant of summary judgment de novo, applying the same

standard used by the trial court, which

            mandates that summary judgment 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 as to any material
            fact challenged and that the moving party is entitled to
            a judgment or order as a matter of law."

            [Templo Fuente De Vida Corp. v. Nat'l Union Fire
            Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)
            (quoting R. 4:46-2(c)).]

      We determine "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." Davis v. Brickman Landscaping, Ltd., 219

N.J. 395, 406 (2014) (quoting Brill, 142 N.J. at 540). We owe no deference to

the trial court's legal analysis. The Palisades at Fort Lee Condo. Ass'n v. 100

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                                            7
Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citing Manalapan Realty, LP v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

      In his single-count complaint, plaintiff alleges defendant's alleged

retaliatory actions violated N.J.S.A. 10:5-12(d). The statute provides it is "an

unlawful employment practice, or, as the case may be, an unlawful

discrimination" for an employer:

            to take reprisals against any person because that
            person has opposed any practices or acts forbidden
            under this act or because that person has sought legal
            advice regarding rights under this act, shared relevant
            information with legal counsel, shared information
            with a governmental entity, or filed a complaint,
            testified or assisted in any proceeding under this act or
            to coerce, intimidate, threaten or interfere with any
            person in the exercise or enjoyment of, or on account
            of that person having aided or encouraged any other
            person in the exercise or enjoyment of, any right
            granted or protected by this act.

            [N.J.S.A. 10:5-12(d).]

It is well-settled that, to establish a retaliation claim under N.J.S.A. 10:5-

12(d), "plaintiffs must demonstrate that: (1) they engaged in a protected

activity known by the employer; (2) thereafter their employer unlawfully

retaliated against them; and (3) their participation in the protected activity

caused the retaliation." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125

(2008) (quoting Craig, 140 N.J. at 629-30).




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      In Carmona, the Court further defined the elements of a LAD-retaliation

claim. 189 N.J. at 369-71. The plaintiff filed a LAD-retaliation claim alleging

he was terminated because he complained he was subject to racial

discrimination and harassment in the workplace. Id. at 361-63. The defendant

argued the plaintiff could not succeed on his LAD-retaliation claim because

his discrimination and harassment complaint was baseless and not brought in

reasonable good faith. Id. at 364-65. The trial court rejected the defendant's

argument; the plaintiff prevailed on the retaliation claim at trial; and we

affirmed, refusing to import a "qualification[]"—that a plaintiff prove he or

she had a good faith belief in the underlying complaint—that was "not

established in the statute." Id. at 367 (quoting Carmona v. Resorts Int'l Hotel,

Inc., No. A-5814-03 (App. Div. Oct. 25, 2005) (slip op. at 4)).

      On appeal, our Supreme Court considered whether "as a condition

precedent to a retaliation claim under the LAD, a plaintiff bears the burden of

proving that his or her initial complaint that triggered the later claimed

retaliation was filed reasonably and in good faith in the first instance." Id. at

369 (emphasis added). The Court found "a requirement that a LAD-retaliation

plaintiff demonstrate that his [or her] underlying complaint was reasonable and

in good faith is entirely consonant with the purpose of the LAD," and "its

absence may well lead to abuse." Id. at 372-73. The Court concluded such a



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requirement is consistent with its interpretation of the Conscientious Employee

Protection Act, N.J.S.A. 34:19-1 to -14, id. at 371, and with federal precedent

addressing retaliation claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, id. at 372-73. The Court also accepted the reasoning of

federal precedent interpreting the LAD to include a good faith and

reasonableness requirement for LAD-retaliation claims.      Id. at 373 (citing

Drinkwater v. Union Carbide Corp., 904 F.2d 853, 865 (3d Cir. 1990) and

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d. Cir. 1996)).

      Persuaded by that authority, and by its determination "the Legislature

could not have intended that the LAD provide a safe harbor to one who files a

baseless, meretricious complaint," the Court held that where "a plaintiff

alleges retaliation under . . . N.J.S.A. 10:5-12[(d)], the plaintiff bears the

burden of proving that his or her original complaint—the one that allegedly

triggered his or her employer's retaliation—was made reasonably and in good

faith." Id. at 373 (emphasis added). In Tartaglia, the Court described the

holding in Carmona as a "refine[ment]" of the elements of a LAD-retaliation

claim that added a "prerequisite": "a plaintiff must . . . bear the burden of

proving that he or she had a good faith, reasonable basis for complaining about

the workplace behavior." Tartaglia, 197 N.J. at 125.




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      Here, the court granted defendant's summary judgment motion based on

its application of the reasoning in Carmona, concluding plaintiff did not satisfy

the prerequisite for a LAD-retaliation claim because he did not have a

reasonable or good faith belief in Bailey's complaint. In our view, the court

misinterpreted Carmona and misapplied the Court's holding.

      N.J.S.A. 10:5-12(d) protects employees from reprisals taken in response

to various protected actions.    For example, the statute prohibits reprisal s

because a person "filed a complaint," but it also prohibits reprisals because a

person "has opposed any practices or acts forbidden under" the LAD. N.J.S.A.

10:5-12(d). In Carmona, the plaintiff claimed retaliation in reprisal for making

a discrimination and harassment complaint under the LAD, and it was in that

context the Court determined a plaintiff must prove a reasonable and good

faith belief in the underlying complaint to establish a retaliation claim under

the LAD. 189 N.J. at 373.

      Here, plaintiff does not allege he was retaliated against for filing a

discrimination complaint. Rather, he claims he engaged in conduct wholly

different than that of the plaintiff in Carmona, but which nonetheless is

protected under N.J.S.A. 10:5-12(d).        He claims he was retaliated against

because he "opposed . . . acts forbidden under the" LAD. N.J.S.A. 10:5-12(d).




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      The facts proffered by plaintiff, which we accept as true for our analysis

of the court's disposition of the summary judgment motion, show defendant

attempted to retaliate against Bailey for the filing of her LAD complaint.

Following the filing of Bailey's complaint, defendant requested plaintiff file a

baseless complaint for a restraining order against Bailey; conjure up false

complaints about Bailey; and make false statements about her. Those requests

constitute an attempt by defendant to commit "an unlawful employment

practice" in violation of N.J.S.A. 10:5-12(d)—retaliation against Bailey for her

filing of a sexual harassment complaint.

      If plaintiff had acceded to the requests, Bailey would have been

compelled to respond to a baseless complaint seeking a restraining order

against her, forced to fend off false complaints, and required to confront false

allegations made by plaintiff solely as a result of requests made by defendant

in response to, and in retaliation for, Bailey's filing of her LAD lawsuit.

Defendant's alleged requests to plaintiff constitute a paradigm of retaliatory

conduct the LAD expressly prohibits.       Plaintiff's opposition to defendant's

requests, effectuated through his refusal to take the actions and make the

statements defendant requested, prevented defendant from retaliating against

Bailey.




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      N.J.S.A. 10:5-12(d) provided Bailey with protection from any reprisals

made in response to the filing of her LAD complaint, and, if Bailey filed a

retaliation claim, Carmona would have required that Bailey prove she had a

good faith and reasonable belief in her underlying LAD complaint.             See

Carmona, 189 at 373.          However, distinct from the protections against

retaliation Bailey had under N.J.S.A. 10:5-12(d), the statute provided plaintiff

with protection from retaliation triggered by his opposition to defendant 's

efforts to retaliate against Bailey.

      We interpret the Court's holding in Carmona to require that a plaintiff

asserting a retaliation claim under N.J.S.A. 10:5-12(d) must establish as a

prerequisite that the alleged action triggering the retaliation was taken on a

good faith and reasonable basis. In Carmona, the Court required the plaintiff

demonstrate his underlying complaint was made on a good faith and

reasonable basis because it was the filing of that complaint—an action

protected from reprisals under N.J.S.A. 10:5-12(d)—that triggered the alleged

retaliation.

      Here, the filing of Bailey's complaint was not the protected action under

N.J.S.A. 10:5-12(d) that triggered the retaliation plaintiff alleges in the

complaint. The Court's decision in Carmona, therefore, does not require that

plaintiff demonstrate a good faith and reasonable basis for Bailey's complaint.



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Such a requirement would be inconsistent with the broad remedial purposes of

the LAD because it would bar claims of employees, like plaintiff, who have no

knowledge regarding the basis of a co-employee's underlying complaint, but

who nonetheless have a good faith and reasonable basis to oppose an

employer's actions that otherwise violate the LAD.          N.J.S.A. 10:5-12(d)

expressly prohibits retaliation against a person who opposes practices or acts

forbidden by the LAD, but the motion court's misapplication of the Carmona

standard incongruously protects defendant from liability for alleged retaliatory

acts that clearly fall within the statute's proscription.

      We apply the Court's broad holding in Carmona—that a prerequisite to a

N.J.S.A. 10:5-12(d) claim is a showing the protected action triggering the

retaliation was taken on a good faith and reasonable basis—to plaintiff's claim.

Thus, as a prerequisite to his claim, plaintiff was required to demonstrate there

was a good faith and reasonable basis for his opposition to defendant's actions

that are forbidden by the LAD. 2 Having reviewed the summary judgment

record, we are satisfied plaintiff sustained that burden by presenting evidence

2
   N.J.S.A. 10:5-12(d) also prohibits reprisals against a person who "assist[s]
[another person] in any proceeding under" the LAD or "aided or encouraged
any other person in the exercise or enjoyment of, any right granted or protected
by" the LAD. We are not convinced the protected activity plaintiff claims
triggered the alleged retaliation against him falls within these categories, and,
we therefore do not consider the application of the Carmona holding to claims
made under those provisions.


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he refused defendant's requests that he seek a meritless restraining order

against Bailey and make misrepresentations concerning her. Giving plaintiff

the benefit of all favorable inferences, plaintiff demonstrated he had a good

faith and reasonable belief defendant's requests constituted efforts by

defendant to unlawfully retaliate against Bailey for the filing of her

discrimination and harassment complaint.

      We therefore reverse the court's order granting defendant's summary

judgment motion. We do so on the narrow ground that the court erred by

finding plaintiff did not present sufficient competent evidence establishing the

Carmona prerequisite for his LAD-retaliation claim. We offer no opinion on

the merits of defendant's other arguments supporting its summary judgment

motion before the motion court. They were not addressed by the motion court,

and we do not decide summary judgment motions "tabula rasa." Estate of

Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02 (App. Div. 2018). The

court shall address those arguments as appropriate on remand.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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