                                NOT FOR PUBLICATION WITHOUT THE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-4752-16T4

MELODY N. VILLANUEVA-
ARROYO,

          Plaintiff-Appellant,

v.

HOUSING AUTHORITY OF THE
CITY OF PASSAIC and VICTOR
CIRILO, individually and in his capacity
as the Executive Director of the Housing
Authority of the City of Passaic,

     Defendants-Respondents.
_________________________________

                    Argued September 12, 2018 – Decided September 25, 2018

                    Before Judges Fasciale, Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-0974-15.

                    Angelo R. Bisceglie, Jr. argued the cause for appellant
                    (Bisceglie & Associates, PC, attorneys; Angelo R.
                    Bisceglie, Jr., on the briefs).

                    Bernadette M. Peslak argued the cause for respondents
                    (Keenan & Doris, LLC, attorneys; Thomas A. Keenan,
            of counsel; Debra M. McGarvey and Bernadette M.
            Peslak, on the brief).

PER CURIAM

      In this employment discrimination case, plaintiff appeals from three

orders entered by two judges. There are two orders dated June 15, 2017 which,

(1) denied plaintiff's motions to adjourn the trial date, extend the discovery end

date (DED), and strike the pleadings of the Housing Authority of the City of

Passaic (PHA) and Victor Cirilo (Cirilo) (collectively defendants); and (2)

granted defendants' cross-motion to bar plaintiff's medical expert report from

her treating doctor. The third order – dated June 21, 2017 – granted defendants'

motion for summary judgment dismissing plaintiff's Conscientious Employee

Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 claim, Family Leave Act (FLA)

claim, and remaining employment-related causes of action.

      Plaintiff   demonstrated    exceptional   circumstances    warranting     an

adjournment of the trial and extension of the DED. The court should have case

managed the outstanding discovery issues (including permitting the use of

plaintiff's medical expert) before adjudicating defendants' summary judgment

motion. Except for the dismissal of the FLA claim, for which plaintiff's counsel

admitted no additional discovery is outstanding, the court improvidently granted

summary judgment.

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      We therefore affirm the order granting summary judgment dismissing the

FLA claim (for the reasons given by the court), reverse the remaining orders,

and remand and direct the court to manage the discovery issues on an expedited

basis. We leave to the discretion of the court how to devise an appropriate case

management order and the scheduling of a new trial date.

                                     I.

      We begin by briefly summarizing the pertinent facts known at this point.

We do so emphasizing that discovery is incomplete, and recognizing that when

reviewing an order granting summary judgment, we apply "the same standard

governing the trial court . . . ." Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497

(App. Div. 2013). We owe no special deference to the motion judge's

conclusions on issues of law. Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995). We therefore look at the facts in the light

most favorable to the non-moving party – here, plaintiff. Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 523 (1995). Obviously, the remand proceedings

will develop additional facts on which the court will inevitably consider

defendants' anticipated renewed summary judgment motions. For now, this

summary will suffice.




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                                          3
      PHA employed plaintiff for approximately sixteen years. She worked for

PHA as a procurement and contract manager from 2012 until 2014, when PHA

terminated her. In this positon, plaintiff oversaw the reporting of funds on PHA

projects, and she was responsible for the preparation, bidding, award, and

implementation of PHA construction contracts. Plaintiff reported to Cirilo – the

Executive Director of PHA.

      In 2013, plaintiff recommended to Cirilo and Vincent Wynter (PHA's

Affirmative Action Officer) that PHA entertain separate competitive public bids

for two construction projects related to PHA's buildings: one for capital

improvements and the other for general repair work. The purported purpose of

these projects was to improve the physical conditions of the public housing

buildings, thereby making them safer. They agreed and received bids from

SAAR Construction.

      SAAR had previously done work for PHA. In plaintiff's view, however,

that work was substandard, deficient, and fell below PHA standards. Plaintiff

brought this to the attention of her superiors at PHA. She recommended that

PHA re-bid the projects because she believed that awarding the contracts to

SAAR would be a problem on multiple levels. PHA refused to re -bid and

awarded the contracts to SAAR.


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                                       4
      She then objected to PHA's use of SAAR and refused to participate in

what she understood to constitute an activity, policy, or practice of PHA that

conflicted with New Jersey's public policy. The import of plaintiff's objection

was that awarding the contracts to SAAR would be incompatible with the State's

policy of promoting the public health, safety, and welfare of citizens.        In

plaintiff's view, allowing SAAR to do the work on the projects would expose

the tenants who lived in the public housing units of PHA's buildings to

substandard living conditions, rather than improved and safe living conditions.

She also maintained that awarding the contracts to SAAR would violate our

public bidding laws.

      The relationship between plaintiff and Cirilo worsened when he started

questioning the initial soundness of the decision to bid the jobs separately. The

parties discussed his concern – that it was a mistake to award the contract for

general repairs separately from capital improvements. According to plaintiff,

Cirilo wanted to amend the contracts PHA had awarded to SAAR to reflect both

jobs as one contract. Plaintiff objected, this time, to the process of amending

the contracts without the necessary votes by the PHA's Board of Commissioners.

She alleged that Cirilo responded by telling her that the amendment would be

an "internal issue" for the Housing Authority.


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                                       5
      Before she voiced her objection to SAAR, Cirilo had stated in plaintiff's

performance review that plaintiff had "significant institutional knowledge in the

area of purchasing" and she "has shown significant growth in [her] position."

According to Cirilo, plaintiff "met capital fund timelines," "adapted to [her]

position well," and "show[ed] great potential." In her managerial position,

plaintiff played a "high" role in PHA's improved HUD scores in asset property

management.

      After her objection to SAAR, Cirilo gave plaintiff another review. This

time, he questioned plaintiff's institutional knowledge and whether she was

suited for the position. According to plaintiff, Cirilo continuously verbally

abused her, humiliated her in front of her colleagues, and otherwise retaliated

against her for her objection to SAAR.      She filed multiple written internal

complaints against Cirilo with Wynter alleging that Cirilo verbally abused her

in front of her colleagues.

      Cirilo then transferred plaintiff to another department and directed her to

relocate her office. After that, in October 2014, Wynter fired plaintiff (without

reading Cirilo's second evaluation). Plaintiff requested a hearing, under the

employee manual, to contest her termination, but she never received one.

According to the employee manual, Cirilo would have been designated as the


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                                       6
hearing officer. Plaintiff objected to him fulfilling that role for obvious reasons.

Nevertheless, Wynter admitted at his deposition that after he had fired plaintiff,

he wanted to rescind the termination and instead impose progressive discipline

– consistent with PHA's employee handbook. Later, he stated that suspending

plaintiff for five-to-ten days would have been a reasonable option.           Cirilo

overruled Wynter's recommendation to impose progressive discipline, and PHA

let her go.

      Plaintiff filed her complaint in 2015. Defendants removed the matter to

federal court, but the parties consented to remanding the case to the Superior

Court, where they commenced discovery. On May 5, 2017, the court extended

the DED to May 20, 2017 so that plaintiff could depose two PHA employees:

Barbara Rivera (a Confidential and Executive Secretary) and Andrew Barcia

(the Director of Maintenance). By this time, the court had already scheduled a

June 26, 2017 trial date.

      Plaintiff had previously filed two motions to strike defendants' answer for

failure to produce documents before Barcia's deposition. Defendants assured

plaintiff that they would produce the information, so plaintiff withdrew those

motions.      One day before his deposition, defendants produced ninety-four

emails. During Barcia's testimony, plaintiff learned about hundreds, if not


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                                         7
thousands, of other emails, along with photographs that defendants did not

previously produce. Defendants agreed to allow plaintiff's IT Technician to

examine PHA's database and computers to retrieve the emails and photographs

that Barcia had sent to Cirilo pertaining to SAAR, but that never happened.

      At Rivera's deposition, she testified about PHA's personnel policies,

procedures, and employee manual.        She explained that, as to disciplinary

matters, she worked to ensure compliance with the manual. Rivera testified that

approximately four years of disciplinary records existed for other PHA

employees containing written warnings, suspensions, and termination of

employment, and reflecting that PHA took no disciplinary action, at least for

those employees who failed to give tenants proper rent-increase notices.

Plaintiff had requested those records to show that PHA did not immediately

terminate those employees, unlike plaintiff. Defendants did not produce those

records.

      On appeal, plaintiff argues primarily that the court abused its discretion

by not adjourning the trial and extending the DED. She maintains that the court

should have carried or denied without prejudice defendants' summary judgment

motion until it was ripe for consideration. Plaintiff contends that in addition to

erroneously adjudicating the dispositive motion on an incomplete record, the


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                                        8
court resolved material fact issues, ignored testimony from Wynter, Cirilo,

Rivera, and Barcia, and misapplied the law on her CEPA and employment causes

of action.

      "An appellate court applies an abuse of discretion standard to decisions

made by [the] trial courts relating to matters of discovery."        C.A. ex rel.

Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (internal

quotation marks and citation omitted). "We generally defer to a trial court's

disposition of discovery matters unless the court has abused its discretion or its

determination is based on a mistaken understanding of the applicable law."

Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005).

      Under Rule 4:24-1(c), plaintiff was required to show exceptional

circumstances to extend the DED because the court had scheduled a trial date.

See Rivers, 378 N.J. Super. at 78. "[E]xceptional circumstances generally

denote something unusual or remarkable. The moving party must demonstrate

counsel's diligence in pursuing discovery, establish the essential nature of the

discovery sought, explain counsel's failure to request an extension within the

original time period, and show that the circumstances presented were clearly

beyond counsel's control." Bldg. Materials Corp. of Am. v. Allstate Ins. Co.,

424 N.J. Super. 448, 479 (App. Div. 2012).


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                                        9
      Plaintiff diligently pursued discovery. Plaintiff's counsel propounded

interrogatories, made multiple document demands, served numerous deposition

notices for PHA witnesses, and took depositions. He communicated with his

adversary orally and in writing and followed up on outstanding discovery issues,

including demanding agendas and minutes of meetings and reimbursement

requests. He made motions to strike defendants' pleadings for failure to produce

documents in anticipation of deposing Barcia and Rivera.            And plaintiff's

counsel successfully obtained an order permitting the depositions of Barcia and

Rivera, which he took. Although he had requested documents before the Barcia

and Rivera depositions, defendants produced only some of the emails the day

before Barcia's deposition. At the deposition, through no fault of his own,

plaintiff's counsel learned about hundreds, if not thousands, of additional emails

and photographs, dating back to 2012, concerning SAAR.                  At Rivera's

deposition, Rivera did not produce all of the disciplinary records for the last fou r

years as requested by plaintiff's counsel.

      The outstanding discovery is essential to plaintiff's claims.          "[T]he

legislative purpose animating CEPA 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." Lippman v. Ethicon,


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                                        10
Inc., 222 N.J. 362, 378 (2015) (internal quotation marks and citation omitted).

The pertinent part of the statute states:

             An employer shall not take any retaliatory action
             against an employee because the employee does any of
             the following:

                   ....

             c. Objects to, or refuses to participate in any activity,
             policy or practice which the employee reasonably
             believes:

             (1) is in violation of a law, or a rule or regulation
             promulgated pursuant to law, . . . ;

             (2) is fraudulent or criminal, . . . ; or

             (3) is incompatible with a clear mandate of public
             policy concerning the public health, safety or welfare
             or protection of the environment.

             [N.J.S.A. 34:19-3.]

      Plaintiff's CEPA theory is that PHA violated the law by awarding the

contracts to SAAR, and that she refused to participate in what she understood

constituted an activity, policy, or practice of PHA that conflicted with New

Jersey's public policy of promoting the public health, safety, and welfare of its

citizens. Specifically, she felt that allowing SAAR to do the work on the

projects would expose the tenants who lived in the public housing units of PHA's

buildings to substandard living conditions, rather than improved and safe living

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                                         11
conditions. The discovery in question – including but not limited to hundreds,

if not thousands, of SAAR emails and photographs; handwritten notes, agendas

and minutes of meetings and reimbursement requests; disciplinary records;

examination of PHA's database; and a deposition of Wanda Estevez (an

individual who is under Cirilo's supervision and who PHA refused to produce)

– are essential to her CEPA and employment-related claims. This information

is also relevant to her claim that PHA violated bidding laws. According to

Barcia, PHA overlooked the problems with SAAR, at a cost to the taxpayers,

thereby disregarding the residents. Finally, the outstanding discovery is relevant

to whether PHA illegally paid SAAR for work it never did, such as clean-up

work that Barcia asserted PHA employees did rather than SAAR.

      Plaintiff requested a trial adjournment and the outstanding discovery

before the May 20, 2017 DED expired and was compliant with defendants'

discovery demands.     The circumstances presented were clearly beyond the

control of plaintiff and her counsel. There is no need to repeat the effort

plaintiff's counsel made to obtain the discovery, which was solely in defendants'

control.

      As to the dismissal of plaintiff's case on summary judgment, "[g]enerally,

summary judgment is inappropriate prior to the completion of discovery."


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                                       12
Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003).

But a party opposing summary judgment based on incomplete discovery must

nonetheless establish, "with some degree of particularity[,] the likelihood that

further discovery will supply the missing elements of the cause of action." Ibid.

(internal quotation marks and citation omitted). Plaintiff has done that here.

      But even on the record before the court on defendants' motion, we

conclude that material fact issues precluded summary judgment.          Rivera's

testimony showed that PHA inconsistently applied its personnel policies. She

explained that part of her job included working with these policies daily, to

ensure that PHA employees comply with the personnel handbook and employee

manual. Wynter corroborated Rivera's testimony by asserting that plaintiff's

termination contradicted PHA policy, and that – consistent with PHA's

progressive discipline procedures – he wanted to rescind her termination and

suspend her instead. Yet, PHA did not even discipline other employees who

failed to give proper notice of rent increases. Thus, whether plaintiff had the

right to, and reasonably relied on, the protections afforded under the PHA

handbook and employee manual – especially because Wynter admitted he failed

to comply with them – are fact issues.




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                                      13
      Finally, plaintiff served her medical expert report from the treating doctor

before – but very close to the expiration of the DED. Defendants knew who the

doctor was, had the treatment records, and never deposed the doctor. Barring

the report, especially because the DED should have been extended, was

unnecessary.   If there was any suggestion that the service of the report

immediately before the DED expired was the fault of plaintiff's counsel, then

there are less severe means to address that situation than the sanction imposed.

Here, defendants were not prejudiced, and on remand, can pursue deposing the

doctor and retaining their own expert.

      Affirmed in part; reversed in part; and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction primarily because if

defendants renew their motion for summary judgment, they will do so on an

entirely new record.




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