Articles Posted in Retaliation / Whistleblowing

A recent decision from New Jersey’s Appellate Division recognizes that the anti-retaliation provisions of the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) do not protect an employee who submits a false affidavit in support of a coworkers’ discrimination claim.

Ariel Gonzalez, worked as a Detective for the Waterfront Commission of New York Harbor.  In June 2012, he signed an affidavit in support of the Commission’s former assistant general counsel, Kimberly Zick, in connection with Ms. Zick’s discrimination lawsuit against the Commission under the ADA and the Rehabilitation Act of 1973.  Ms. Zick’s case was dismissed in October 2012 because her allegations did not support her claims.

Shortly after Ms. Zick’s case was dismissed, the Commission began to investigate Det. Gonzalez regarding statements in his affidavit.  When the Commission interviewed Det. Gonzalez he again swore under oath that the statements in his affidavit were truthful.  The Commission then suspended Det. Gonzalez and brought disciplinary charges against him seeking to terminate his employment.

Earlier this week, the United States Supreme Court ruled that the First Amendment prohibits the government from demoting an employee because it incorrectly believed the employee had engaged in Constitutionally-protected political speech.

The case involves Jeffrey Heffernan, a police officer who worked for the City of Paterson, New Jersey.  In 2005, Lawrence Spagnola was running for mayor against incumbent Mayor Jose Torres.  Mayor Torres had appointed the Patterson Police Chief, James Wittig, tore his position.

At the request of his mother, Mr. Heffernan picked up a large sign supporting Mr. Spagnola for mayor that his mother wanted to put on her front lawn.  Other members of the Paterson Police Department saw Mr. Heffernan holding the sign while he was talking to members of Mr. Spagnola’s campaign staff.

New Jersey’s Appellate Division recently recognized the significance of the “blue wall of silence” to a whistleblower case involving a New Jersey police officer.

The plaintiff, identified as “T.D.,” is a police officer in the Tinton Falls Police Department. In 2008, one of T.D.’s fellow officers reported to the Monmouth County Prosecutor’s Office that a police sergeant had installed a device called a diverter at his home so his personal water use would not be recorded. Instead of investigating the sergeant, the Police Department began an Internal Affairs (“IA”) investigation to determine who had contacted the prosecutor, and then brought disciplinary charges against that officer. When T.D. learned about this he objected to the Department’s decision to discipline the officer who complained, but not to even investigate the sergeant’s apparent crime.

In March 2009, T.D.’s sergeant asked to meet with him outside a local dumpsite, where he told T.D. he should have warned him about the prosecutor’s investigation. T.D. indicated he believed doing so would have unlawfully interfered with the prosecutor’s criminal investigation. During the meeting, the sergeant also made disparaging comments about the officer who initially reported the water diverter, and told T.D. that “everyone should watch their backs.”

Yesterday, the New Jersey Supreme Court ruled that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), protects employees who blow the whistle about issues that relate to their job duties.

CEPA is a broad whistleblower law. It prohibits employers from retaliating against employees who, among other things, object to or refuse to participate in activities they reasonable believe are illegal, fraudulent, or violate a clear mandate of public policy relating to public health, safety, welfare or the environment. It also protects licensed medical professionals who object to or refuse to participate in activities they reasonably believe constitute improper quality of patient care.

On several occasions, New Jersey’s Appellate Division has ruled that employees are not protected by CEPA if their objections relate to their job duties. This threatened to dramatically limit the scope of CEPA’s protection since employees typically are in the best position to blow the whistle on activities related to their job functions.

A recent unpublished decision from the New Jersey Appellate Division demonstrates that employees can prove their employers retaliated against them for objecting to discrimination without proving the discrimination actually was unlawful.

Debra Lemeshow worked for PSEG Services Corporation. In 2000, the company made her its Manager, Business Management Support, with a salary of $95,000 and a potential 15 percent annual bonus.

In 2001, PSEG hired a company to compare its compensation packages to similar jobs at other companies. It determined the appropriate salary for Ms. Lemeshow’s position was between $65,000 and $70,000 per year.

On June 16, 2014, the New Jersey Supreme Court ruled that by the Conscientious Employee Protection Act (“CEPA”) did not protect an employee who was fired after he objected because the nursing home for which he worked was not taking sufficient steps to prevent the spread of infectious disease. In the process, it concluded that to be protected by CEPA an objection has to relate to a measurable standard or requirement.

CEPA is New Jersey’s broad “whistleblower” law. Among other things, it prohibits employers from retaliating against employees because they object about activities they reasonably believe constitute “improper quality of patient care,” including any professional code of ethics, or are “incompatible with a clear mandate of public policy concerning the public health.”

James Hitesman, a registered nurse, worked for Bridgeway, Inc., at nursing home in Bridgewater, New Jersey. Bridgeway fired Mr. Hitesman after he complained to the company’s management about high rates of infectious diseases at the nursing home, and raised similar concerns to the Somerset County Department of Health, New Jersey Department of Health and Senior Service, and a television reporter. He sued, claiming Bridgeway fired him in violation of CEPA.

There are many ways to prove a retaliation claim.  Often, a key factor is the closeness in time between when the employee blows the whistle and when the employer takes an adverse employment action against her, such as firing or demoting her.  In most situations timing alone is not enough to prove retaliation. However, timing alone can be enough if it is “unusually suggestive” of retaliation.

There is no clear answer to how little time can be considered “unusually suggestive.”  But in a recent case the United States District Court for the District of New Jersey ruled a jury can find retaliation because the employer fired the employee eight days after her last protected activity.

Zalinskie v. Rosner Law Offices, P.C., Linda Zalinskie claims her employer, Rosner Law Offices, P.C., fired her because she complained about violations of the Fair Labor Standards Act (FLSA).  In contrast, the firm claims it spoke to Ms. Zalinskie about problems with her job performance and attitude nearly a year before she made these complaints, moved her into a new position at the time, and ultimately fired her because her performance and attitude did not improve.

Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

The Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation.  It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own.  The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC.  Their employers are private companies that manage and advise the Fidelity family of mutual funds.