New Jersey Employment Lawyer Blog
A recent decision from the New Jersey Appellate Division has reinstated the whistleblower retaliation claims of a former Novartis compliance officer who alleged that she was fired aft
er objecting to a series of programs she believed violated federal anti-kickback laws. The trial court had dismissed her case before discovery, ruling that she filed her claims too late under the Conscientious Employee Protection Act, known as CEPA. The Appellate Division reversed and sent the case back for further proceedings.
The decision is important for New Jersey workers because it confirms two practical points about CEPA timing. First, a retaliatory termination claim begins to run on the actual date of discharge, not based on earlier acts of retaliation that may have warned the employee that something was wrong. Second, a hostile work environment claim built on a pattern of smaller retaliatory acts can be timely even if some of the underlying conduct occurred years earlier, as long as at least one act in the pattern occurred within the one-year filing window. At Rabner Baumgart Ben-Asher & Nirenberg, P.C., we represent employees across Bergen County and throughout New Jersey in CEPA matters. These timing rules can make the difference between a viable case and one that is dismissed before it begins.
The Facts
The plaintiff, Cynthia Ham, was hired by Novartis in May 2018 as an Ethics, Risk, and Compliance Advisor. Ms. Ham was an attorney with more than twenty years of compliance experience who was assigned to four internal leadership teams.
Shortly after she started working for Novartis in 2018, Ms. Ham identified what she believed was a violation of the federal Anti-Kickback Statute in a program called the Cardiac Nurse Program. In her view, Novartis was paying nurses to visit cardiac patients and report back to prescribing cardiologists, effectively giving doctors free nursing services, as an incentive to prescribe a particular heart failure medication. Ms. Ham reported her concerns internally. According to her lawsuit, after she did so, she was excluded from meetings, shunned by managers, and reassigned to a different role. Novartis eventually ended its Cardiac Nurse Program.
Ms. Ham raised additional objections in 2019. She redlined a sales training slide deck that she believed contained regulatory violations, and opposed a suggestion to rename the document to make it harder to find in response to a government investigation. She also objected to a home-delivery pharmacy agreement that was part of a major drug acquisition, which she believed contained illegal discount and kickback arrangements. The agreement was removed from the deal.
Ms. Ham’s Complaint alleges that the response from Novartis’ leadership was retaliation rather than gratitude. Novartis subjected Ms. Ham to two internal investigations that cleared her of any wrongdoing. She was told by one executive that other leaders had powerful friends inside the company and that she should be careful. She was excluded from a high-profile speaking opportunity at the company’s global headquarters. She received a low year-end performance review in February 2020, even though her own manager repeatedly told her she had done a great job, and she was later issued a written final warning that she alleged was based on false accusations.
In June 2020, Ms. Ham suffered a seizure and was diagnosed with brain cancer. She was later diagnosed with ocular cancer and took a medical leave to undergo treatment. Her Complaint alleges that Novartis repeatedly mishandled her medical leave and her requests for accommodations upon her return to work. Novartis finally permitted Ms. Ham to return on September 7, 2021, but without the accommodations she had requested. On October 19, 2021, Novartis told Ms. Ham that her position had been eliminated and her employment was terminated.
Ms. Ham, alleging claims under the CEPA and the New Jersey Law Against Discrimination including retaliation, a hostile work environment, disability discrimination, and failure to accommodate her disability. The trial court dismissed all five of her CEPA claims, ruling that the conduct she described had put her on notice of a possible egal claim by early 2020, and therefore CEPA’s one-year CEPA statute of limitations had expired before she filed suit.
The Law
CEPA is New Jersey’s broad whistleblower statute. It protects employees who objects to, refuses to participate in, or discloses an activity that they reasonably believe violates a law, rule, regulation, or clear mandate of public policy. To prevail, the employee must show she had a reasonable belief that the employer’s conduct was unlawful, that she engaged in protected whistleblowing activity, that she suffered an adverse employment action, and that there is a causal connection between the two. Importantly, the employee does not have to be right that the conduct she objected about actually violated the law. Rather, she only has to show that her belief was reasonable.
CEPA has a one-year statute of limitations, which is shorter than the deadlines that apply to many other employment claims. The difficult question in many cases is when the one-year clock starts to run.
New Jersey courts treat discrete acts of retaliation differently from hostile work environment claims. A discrete act, such as a termination, demotion, or transfer, is considered to occur on the day it happens, and the clock for the statute of limitations starts on that day. A hostile work environment claim, by contrast, is based on the cumulative effect of many smaller acts, none of which may be enough by itself to support a lawsuit. For hostile work environment claims, courts apply what is called the continuing violation doctrine. Under that doctrine, the claim accrues on the date of the last act in the pattern of harassment, and earlier acts that otherwise would be time-barred can be considered as part of the same claim, as long as at least one act in the pattern occurred inside the one-year window.
The trial court in this case acknowledged the continuing violation doctrine, but nonetheless concluded that Ms. Ham knew or should have known that she had a CEPA claim by early 2020., and as a result her later filing was untimely.
What the Appellate Court Decided
The Appellate Division reversed the dismissal and sent the case back for further proceedings. The court reached two main conclusions.
First, on the retaliatory termination claim, the court held that a wrongful termination claim under CEPA accrues on the date of the actual discharge, regardless of when any earlier acts of retaliation occurred. Novartis discharged Ms. Ham on October 19, 2021, which fell within the one-year period preserved by the parties’ pre-suit agreement to toll the statute of limitations. As a result, her termination claim was timely.
Second, on the hostile work environment claim, the appellate court applied the continuing violation doctrine. It concluded that Ms. Ham had alleged a series of separate retaliatory acts that, taken together, could amount to a hostile work environment under CEPA. Because at least some of those acts, including Novartis’ alleged obstruction of her return from medical leave and mishandling of her accommodations request in the late summer and fall of 2021, fell within the limitations window, the earlier acts of harassment could be swept in as part of the same pattern. The court rejected the employer’s argument that the plaintiff had to plead an unbroken chain of retaliation, finding there is no such requirement in New Jersey case law.
It is important to be clear about what this decision does and does not do. It does not decide whether Novartis retaliated against Ms. Ham or subjected her to a hostile work environment, or whether she ultimately will win her case. It only holds that her CEPA claims were improperly dismissed at the pleading stage based on the statute of limitations, and she is entitled to move forward and develop her case through discovery. The Appellate Division also instructed the trial court to allow Ms. Ham to amend her complaint to plead with more specificity the series of acts that make up the alleged hostile work environment.
The opinion is unpublished, which means it is not binding on other courts. Even so, it applies and explains rules that come from binding New Jersey Supreme Court decisions, and offers a useful illustration of how those rules work in a real fact pattern.
Why It Matters for New Jersey Workers
For New Jersey employees who have been fired after raising concerns about illegal conduct, this decision reinforces a critical point about timing. If you were fired because of protected whistleblowing, then the one-year CEPA clock does not start on the day you first sensed or believed your employer was unhappy with you. Rather, it starts on the day you actually were discharged. Earlier acts of retaliation may have made things difficult, but they do not necessarily extinguish a subsequent wrongful termination claim.
The decision also illustrates how the continuing violation doctrine can preserve a hostile work environment claim. Retaliation against whistleblowers often is a slow accumulation of smaller acts such as exclusion from meetings, undesirable job assignments, sham investigations, unfair performance reviews, bogus disciplinary memos, and interference with a medical leave. Many of those acts may not, on their own, be worth filing a lawsuit over. When they form a pattern, however, and at least one act in that pattern occurred within the past year, the entire pattern can be considered as part of one ongoing claim under CEPA.
There are practical lessons in this opinion for any employee who suspects retaliation. Keep a written record of what is said and done, including dates, participants, and what you reported and to whom. Save relevant emails, memos, performance evaluations, and disciplinary documents in a personal location that you will still have access to if your employment ends. Be aware that CEPA’s one-year deadline is shorter than the deadlines for many other workplace claims, and that the precise date when the clock starts may depend on the kind of claim you are asserting. Before signing a severance agreement or waiting too long to act, it is worth speaking with an attorney who regularly handles these matters.
If you believe you have been retaliated against for objecting to conduct you believe was unlawful, or if you have been terminated after raising concerns about your employer’s practices, the Bergen County employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can review the facts of your situation, explain your legal options, and discuss next steps. Because CEPA claims are subject to a one-year statute of limitations, timing matters. Contact the firm at (201) 777-2250 to schedule a consultation.