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      Although it is posted on the internet, this opinion is binding only on the
         parties in
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                           case and
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                                                                      limited. R.
                                                                                R.1:36-3.
                                                                                   1:36-3.




                                                   SUPERIOR COURT OF NEW JERSEY
                                                   APPELLATE DIVISION
                                                   DOCKET NO. A-1159-16T2
THOMAS W. KENYON,

        Plaintiff-Appellant,

v.

RUTGERS, THE STATE UNIVERSITY OF
NEW JERSEY, BRUCE FEHN, Senior
Vice President of Administrative
Services, individually and in
his official capacity, and
NATALIE HOROWITZ, Executive
Director of Purchasing,
individually and in her official
capacity,

        Defendants-Respondents.


               Argued April 18, 2018 — Decided June 19, 2018

               Before Judges Koblitz, Manahan, and Suter.

               On appeal from Superior Court of New Jersey,
               Law Division, Middlesex County, Docket No. L-
               5377-14.

               Mark A. Gulbranson, Jr. argued the cause for
               appellant (Hartman, Chartered, attorneys;
               Katherine D. Hartman and Mark A. Gulbranson,
               Jr., on the brief).

               John K. Bennett argued the cause for
               respondents (Jackson Lewis P.C., attorneys;
               John K. Bennett and Carla D. Macaluso, of
           counsel and on the brief; Beth L. Braddock,
           on the brief).

PER CURIAM

      Plaintiff Thomas W. Kenyon filed a September 3, 2014 complaint

against defendants Rutgers University, Bruce Fehn, and Natalie

Horowitz for violations of the Conscientious Employee Protection

Act   (CEPA),   N.J.S.A.   34:19-1   to   -14.     Plaintiff    claims        he

complained to his superiors about Rutgers' procurement methods,

alleging that he reasonably believed Rutgers was subject to state

procurement laws, and in the alternative, that he reasonably

believed   Rutgers'    procurement   methods     violated    public    policy

because they breached its fiduciary duty to taxpayers.              Plaintiff

claims Rutgers retaliated and subsequently terminated plaintiff's

employment because he objected to Rutgers' procurement methods.

On October 14, 2016, the court granted defendants' summary judgment

motion and denied plaintiff's discovery motion, which sought to

depose two additional witnesses and obtain an expert on state

procurement law.      Plaintiff appeals and we reverse and remand for

the court to state its reasons for its decisions.

      Defendants filed an initial motion for summary judgment on

April 29, 2016.       On June 10, 2016, the court entered a Case

Management   Order    (CMO)   extending   the    discovery    end    date    to

September 15, 2016, and postponing the trial date to October 31,

2016.   Defendants renewed their motion for summary judgment on

                                     2                                A-1159-16T2
September 2, 2016, seeking to dismiss plaintiff's claim in its

entirety.

     On September 13, 2016, plaintiff filed a notice of motion to

extend the discovery date for an additional sixty days to obtain

a procurement expert and to depose two additional witnesses.             The

trial   court   subsequently    entered   orders    granting   defendants'

summary judgment motion and denying plaintiff's motion to extend

discovery. A handwritten note on the summary judgment order states

that "a written opinion will be issued as soon as possible."             The

trial court stated on the record that a written opinion would

follow explaining its findings and reasons for the summary judgment

decision.   The order denying further discovery indicated reasons

were placed on the record, although they were not.              No written

opinion was issued with regard to either order.

     Plaintiff    began   his   employment   with    the   University     of

Medicine and Dentistry of New Jersey (UMDNJ) in October 2006.              He

was appointed to the position of Vice President, Supply Chain

Management on May 30, 2007.        Plaintiff stated that in 2006 or

2007, a Federal Monitor assigned to oversee the UMDNJ procurement

department restructuring told plaintiff that Rutgers was required

to follow state procurement laws.       Rutgers is actually exempt from

the Public Contracts Law, N.J.S.A. 52:34-1 to -25.1            See Rutgers,

the State Univ. v. Kugler, 110 N.J. Super. 424, 434 (Law Div.


                                    3                              A-1159-16T2
1970), aff'd, 58 N.J. 113 (1971).        Plaintiff claims he only became

aware of this exception after he filed this lawsuit.

     In or around June or July 2012, plaintiff became aware of the

pending merger of UMDNJ into Rutgers.       Defendant Bruce Fehn stated

that Rutgers handled the assimilation related to the merger and

that Rutgers' management made the ultimate decisions regarding the

merger.     Rutgers retained PricewaterhouseCoopers (PwC) to serve

as a consultant and facilitate pre-merger meetings.                    Rutgers'

procurement    policies   and   systems    were    determined     to    be   the

controlling policies and applicable operating systems in the post-

merger institution.

     After the merger was announced, pre-merger meetings were held

twice a week between plaintiff, PwC consultants, which included

Christina Sherma, and the then-Director of Purchasing for Rutgers,

defendant    Natalie   Horowitz.    It    was     at   these   meetings      that

plaintiff states he expressed his concerns to Horowitz about

Rutgers' procurement policies and objected to Rutgers' lack of

advertised bidding and centralized procurement.            Plaintiff claims

that after he voiced these concerns, he was no longer invited to

these pre-merger meetings beginning in February or March 2013.

When plaintiff asked why he was not being included in the meetings,

Horowitz stated that he was "so far advanced" and the group was

meeting to focus on Rutgers.        Plaintiff was not yet a Rutgers


                                    4                                  A-1159-16T2
employee at the time.             He did not tell Horowitz that he believed

Rutgers'       procurement       process     was        illegal     or   unlawful,         but

plaintiff      says   he        told    Horowitz        he    believed   the        lack   of

centralization        in    procurement           led        to   misappropriation         of

taxpayers' funds.

     On July 1, 2013, the majority of UMDNJ merged into Rutgers

pursuant to the New Jersey Medical and Health Sciences Education

Restructuring Act, N.J.S.A. 18A:64M-1 to -43. As a result, the

UMDNJ and Rutgers' procurement departments merged, leaving only

one position available for Executive Director of Procurement for

Rutgers.          Fehn,     as         Rutgers'    Senior         Vice   President         of

Administration, chose Horowitz to be the Executive Director for

Procurement,      because        of     Horowitz's      familiarity      with       Rutgers'

systems.

     As    a    result     of    the     merger,     plaintiff      became      a    Rutgers

employee:       the Associate Director of Strategic Sourcing in the

procurement department.                Plaintiff reported directly to Horowitz

and was responsible for twelve employees. Plaintiff's new position

paid $112,000, significantly less than his $190,000 salary at

UMDNJ.     After becoming a Rutgers employee, Horowitz expressed

concern to plaintiff about his job performance.

     On October 4, 2013, plaintiff took a medical leave of absence.

Rutgers approved plaintiff's medical leave request through January


                                             5                                      A-1159-16T2
3, 2014, but notified plaintiff that pursuant to Rutgers' policy,

a medical leave could not exceed six months within a rolling

twelve-month       period.        Plaintiff      requested    extensions       on     his

medical leave, which were granted through April 4, 2014.                            After

being advised that no additional leave was available, he did not

return to work and submitted a "Certification of Health Care

Provider" advising that the probable duration of incapacity was

one   year.        Rutgers    denied       the    additional      leave      time    and

subsequently terminated plaintiff on April 21, 2014.                         Plaintiff

stated that the reason for his medical leave was due to the toxic

work environment created by Horowitz and Fehn, causing plaintiff

to suffer anxiety, high blood pressure and severe headaches.

      CEPA    is    a   "remedial      legislation         entitled     to     liberal

construction, its public policy purpose to protect whistleblowers

from retaliation by employers having been long recognized by the

courts of this State."            Lippman v. Ethicon, Inc., 222 N.J. 362,

378   (2015).       CEPA's    legislative        purpose     is   to   "protect      and

encourage     employees      to   report    illegal    or    unethical       workplace

activities and to discourage public and private sector employers

from engaging in such conduct."                   Ibid. (quoting Abbamont v.

Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)).

      To establish a prima facie case for a cause of action under

CEPA, a plaintiff must show:


                                           6                                  A-1159-16T2
            (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, 222 N.J. at 380 (quoting Dzwonar v.
            McDevitt, 177 N.J. 451, 462 (2003)).]

     "A plaintiff who brings a claim pursuant to N.J.S.A. 34:19-

3(c) need not show that his or her employer or another employee

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

Dzwonar, 177 N.J. at 462.        Instead, the plaintiff "must show that

he or she 'reasonably believes' that to be the case."                 Ibid.

(quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000)).

The goal of CEPA is "not to make lawyers out of conscientious

employees    but   rather   to    prevent     retaliation   against   those

employees who object to employer conduct that they reasonably

believe to be unlawful or indisputably dangerous to the public

health, safety or welfare."        Id. at 464 (quoting Mehlman v. Mobil

Oil Corp., 153 N.J. 163, 193-94 (1998)).           But a plaintiff "must

set forth facts that would support an objectively reasonable belief

that a violation has occurred."           Ibid.


                                      7                           A-1159-16T2
    "[W]hen a plaintiff brings an action pursuant to N.J.S.A.

34:19-3(c), the trial court must identify a statute, regulation,

rule, or public policy that closely relates to the complained-of

conduct."   Id. at 463.   Regarding a summary judgment motion, "when

a defendant requests that the trial court determine as a matter

of law that a plaintiff's belief was not objectively reasonable,

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."        Id.

at 464.     A trial court "can and should enter judgment for a

defendant when no such law or policy is forthcoming."        Dzwonar,

177 N.J. at 463.

    The elements of a CEPA claim that a plaintiff must prove

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

            While an employee who proceeds under [N.J.S.A.
            34:19-3(c)(1)] must show that he or she
            reasonably believed that the employer's
            activity, policy, or practice "violated" a
            law, rule, or regulation, an employee who
            proceeds under [N.J.S.A. 34:19-3(c)(3)] is
            only required to show that the employer's
            activity,     policy,    or     practice    is
            "incompatible" with a clear mandate of public
            policy.

            [Maimone v. City of Atl. City, 188 N.J. 221,
            230-31 (2006).]

But "a plaintiff who pursues a CEPA claim under [N.J.S.A. 34:19-

3(c)(3)] may rely upon the same laws, rules and regulations that


                                  8                          A-1159-16T2
may be the subject of a claim under [N.J.S.A. 34:19-3(c)(1)]."

Id. at 231. A plaintiff who proceeds under N.J.S.A. 34:19-3(c)(3),

however, "must make the additional showing that the 'clear mandate

of public policy' he or she reasonably believes the employer's

policy to be incompatible with is one that 'concerns the public

health, safety or welfare . . . .'"            Ibid. (quoting Roach, 164

N.J. at 609-11).     Whether an employee has adequately "established

the existence of a clear mandate of public policy is an issue of

law."   Dzwonar, 177 N.J. at 469 (quoting Mehlman, 153 N.J. at

187).

     Once a plaintiff establishes a prima facie CEPA claim, a

defendant   must    then   "come   forward    and   advance   a   legitimate,

nondiscriminatory reason for making the adverse decision."                 Kolb

v. Burns, 320 N.J. Super. 467, 479 (App. Div. 1999).                 "If such

reasons are proffered, plaintiff must raise a genuine issue of

material    fact    regarding      whether    the   employer's      proffered

explanation    is     pretextual     or      whether,   the       'retaliatory

discrimination was more likely than not a determinative factor in

the decision.'"     Ibid. (quoting Bowles v. City of Camden, 993 F.

Supp. 255, 262 (D. N.J. 1998)).        "Pretext is 'a purpose or motive

alleged or an appearance assumed in order to cloak the real

intention or state of affairs;' in essence, pretext is a 'cover-




                                      9                               A-1159-16T2
up' for a discriminatory purpose."         Bowles, 993 F. Supp. at 262

(quoting Loeb v. Textron, 600 F.2d 1003, 1012 (1st Cir. 1979)).

     Rule     4:24-1(c)   provides    in   pertinent   part   that   "[n]o

extension of the discovery period may be permitted after an

arbitration     or   trial   date     is   fixed,   unless    exceptional

circumstances are shown." To extend discovery based on exceptional

circumstances, a moving party must show:

            (1) why discovery has not been completed
            within time and counsel's diligence in
            pursuing discovery during that time; (2) the
            additional discovery or disclosure sought is
            essential; (3) an explanation for counsel's
            failure to request an extension of the time
            for discovery within the original time period;
            and (4) the circumstances presented were
            clearly beyond the control of the attorney and
            litigant seeking the extension of time.

            [Castello v. Wohler, 446 N.J. Super. 1, 25
            (App. Div. 2016) (quoting Rivers v. LSC
            P'ship, 378 N.J. Super. 68, 79 (App. Div.
            2005)).]

     The trial court must provide reasons with its decisions,

either on the record or written.           As we said more than twenty

years ago,

            Unfortunately, the judge made no findings of
            fact or legal conclusions as required by R.
            1:6-2(f).    An articulation of reasons is
            essential to the fair resolution of a case. A
            trial judge has a duty to make findings of
            fact and conclusions of law "on every motion
            decided by written orders that are appealable
            as of right." R. 1:7-4. Failure to perform
            this duty "'constitutes a disservice to the
            litigants, the attorneys and the appellate

                                     10                          A-1159-16T2
            court.'"   Curtis v. Finneran, 83 N.J. 563,
            569-70 (1980) (quoting Kenwood Assocs. v.
            Board of Adjustment of Englewood, 141 N.J.
            Super. 1, 4 (App. Div. 1976)); see id. at 570
            ("Naked conclusions do not satisfy the purpose
            of R. 1:7-4.").

            [Italiano v. Rudkin (Italiano),               294   N.J.
            Super. 502, 505 (App. Div. 1996).]

"Moreover,    the    appellate     court    ordinarily    cannot   perform    its

review function in the absence of findings."                 Filippone v. Lee,

304 N.J. Super. 301, 306 (App. Div. 1997).             Although we review the

grant of a motion for summary judgment de novo, we cannot review

the decision of the trial court on a blank slate.                      Estate of

Doerfler v. Fed. Ins. Co., ___ N.J. Super. ___, ___ (App. Div.

2018) (slip op. at 5).        Here, although the court gave some brief

explanation of its decision on the record, finding no evidence of

whistle-blowing       activity,      the    court    explicitly     stated      it

anticipated written reasons would follow within two weeks of oral

argument.     Counsel represented to us that he reached out to the

court for the reasons without success.              We also were unsuccessful

in   obtaining      the   promised    written     reasons.      Thus,    we   are

constrained    to    remand   to     give   the   court   an    opportunity     to

reconsider and provide reasons for both orders.

      Reversed and remanded. We do not retain jurisdiction.




                                       11                               A-1159-16T2
