New Jersey Court Rules Municipal Employees Can Prove Retaliation Even If Civil Service Commission Upheld Discipline

It is my pleasure to discuss one of my own employment law cases that was recently decided by New Jersey’s Appellate Division, Winters v. North Hudson Regional Fire & Rescue. On August 30, 2010, the Appellate Division ruled that my client, Steven J. Winters, can proceed with his retaliation case against the North Hudson Regional Fire & Rescue (“NHRFR”).

Mr. Winters is a former NHRFR Fire Captain. He alleges the NHRFR, its Fire Chief, and its two co-Directors harassed, suspended, demoted, and eventually fired him in retaliation for his objections in which he discussed dangerously inadequate fire coverage and inoperable fire radios in the department, sexual harassment by an NHRFR Battalion Chief, and fraudulent and criminal conduct by the NHRFR’s Fire Chief and co-Directors. Mr. Winters sued the NHRFR for retaliation in violation of the New Jersey Conscientious Employee Protection Act (“CEPA”) and the First Amendment.

The NHRFR asked the Appellate Division to dismiss Mr. Winters’ case because New Jersey’s Civil Service Commission had previously upheld the NHRFR’s decisions to suspend, demote, and fire Mr. Winters. The Civil Service Commission is a New Jersey state agency responsible for ruling on appeals of disciplinary charges brought against state, county and municipal civil service employees. On appeal, the NHRFR argued that the discipline it issued to Mr. Winters could not be retaliatory since the Commission upheld it.

But the Appellate Division disagreed. It ruled that even though the Commission had affirmed the discipline, the NHRFR still could have retaliated against Winters, since an employer can have more than one reason for disciplining an employee. Since Mr. Winters has both direct and indirect evidence that the NHRFR disciplined him in retaliation for his legally protected speech, the Appellate Division ruled that a jury should decide whether his legally protected speech and objections made a difference in the NHRFR’s decisions to discipline him.

The Appellate Division’s decision in Winters is unpublished, meaning it is not a legally binding precedent. The NHRFR is in the process of asking the New Jersey Supreme Court to consider an appeal of the Appellate Division’s decision.

If you work in New York or New Jersey, and your employer has harassed, suspended, demoted, or fired you because you spoke out about something illegal, criminal, or that violates public policy, you should consider contacting a whistleblower lawyer to discuss your legal rights.

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