Articles Tagged with Retaliation

A recent decision from the New Jersey Appellate Division affirms a trial court’s order requiring Gerber Products Company to bring a witness from Switzerland to New Jersey, at Gerber’s expense, to testify at a deposition in a discrimination lawsuit.  A deposition is a formal interview under oath used to obtain testimony from witnesses in lawsuits.

Bayer ordered to pay to bring witness from Switzerland to testify in discrimination lawsuit.Denise Willson is a former Vice President of Medical Sales North America for Nestlé Infant Nutrition.  Ms. Willson sued Gerber Products Company, Nestlé Healthcare Nutrition, Inc., Nestlé Holdings, Inc., and Gerber’s President and CEO, William Partyka, alleging they discriminated against her because of her age and gender.  More specifically, she claims they fostered a “boys club” culture, paid her less than her younger male peers, denied her a promotion to the position of general manager, and ultimately fired her in retaliation for her complaints about the discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

As part of her lawsuit, Ms. Willson alleges she spoke to Mr. Partyka’s supervisor, Alexandre Costa, about the retaliatory termination, gender discrimination and Gerber’s failure to promote her.  When Ms. Willson’s lawyers sought to take Mr. Costa’s deposition, the defendants objected. They argued that Mr. Costa lives in Switzerland, claims his meeting with Ms. Wilsson was about sales rather than her allegations of discrimination and retaliation, denies he was involved in the decision to terminate her employment or has any other information pertinent to her case, and that requiring him to come to New Jersey for his deposition supposedly would “create a tremendous burden on [his] business.”  The defendants also argued that neither Mr. Costa nor his employer, Nestlé Enterprises S.A., is a party to the lawsuit.

A new decision from New Jersey’s Appellate Division recognizes that an employer can be liable for retaliating against an employee who filed an anonymous whistleblower complaint if the evidence supports the inference that it could have realized she was the one who filed the complaint.

Court finds whistlblower protected from retaliation after making anonymous call.For 14 years, Carol Smith worked for Konica Minolta Business Solutions (“KMBS”), primarily as a sales representative.  In 2018, Ms. Smith reported to her supervisors that over a million dollars of equipment had been shipped to a warehouse, and KMBS had recorded it as installed and paid employees a commission for selling that equipment, but the equipment actually remained in the warehouse and KMBS was improperly using it as collateral for bank loans.

Ms. Smith’s supervisors failed to address her complaint, and instead began harassing her.  Accordingly, she eventually reported the fraudulent activity anonymously, through KMBS’ employee whistleblower hotline.

A recent decision from the New Jersey Appellate Division decision recognizes that, under the right circumstances an employee can be protected by the Conscientious Employee Protection Act (“CEPA”) when she resigns because she is not willing to participate in her employer’s illegal conduct.  CEPA is New Jersey’s whistleblower law, which many courts have described to be the broadest such law in the nation.

Hope Moser worked for the Streamwood Company as the assistant property manager at the Madison Court apartments. Her immediate supervisor, Scott Leonard, was Streamwood’s regional manager and the son of Streamwood’s owner.

Employee protected by CEPA after refusing to provide false information on housing application formIn January 2021, Mr. Leonard told Ms. Moser that she should check “no” on all housing screening forms in response to the question whether the form was being completed as a Section 8 housing application. Ms. Moster objected because she believed doing so would violate the New Jersey Law Against Discrimination (“LAD”), which prohibits housing discrimination against prospective Section 8 tenants.

Employer retaliates by searching employee's cellphoneA recent decision by the Third Circuit Court of Appeals allows an employee to proceed with his retaliation claim based on evidence suggesting his employer’s decision to search his cellphone was an excuse to try to find support to fire him in retaliation for asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the Family & Medical Leave Act (“FMLA”).

Joseph Canada is Black and suffers from serious back problems including herniated discs and arthritis.  He worked for Samuel Grossi and Sons, Inc. for 10 years.  Mr. Canada claims Grossi’s management prevented him from accessing FMLA leave forms, and harassed him when he tried to take time off for his back issues.  He eventually obtained the forms on his own, and took FMLA leave. 

In March 2019, Grossi had a temporary layoff during which it laid off Mr. Canada for a day.  In response, Mr. Canada filed a claim of race and disability discrimination with the United States Equal Opportunity Commission (“EEOC”).  In June 2019, Mr. Canada filed a discrimination and retaliation lawsuit against Grossi under Title VII, the ADA and the FMLA.

A recent ruling from New Jersey’s Appellate Division allows members of the Rutger’s women’s basketball team to continue with their lawsuit under the New Jersey Law Against Discrimination (“LAD”).

Rutger's Women's Basketball Players Win Discrimination AppealSharee Gordon, Adayshia McKinnon, Jade Howard, Arianna Williams and Sarah Schwartz were students at Rutgers-Newark University and members of the women’s basketball team. Gordon, Howard and Williams each identify themselves as African-American lesbians; McKinnon identifies as Black and bisexual; and Schwartz identifies as Hispanic and heterosexual.

During the 2014-15 school year, the team’s head coach, Kevin Morris, was on a medical leave.  When Gordon learned Rutgers was considering naming William Zasowski as the interim head coach, she raised concerns that he had used discriminatory language to refer to members of the men’s basketball team when he was its assistant coach.  Specifically, she alleged he referred to members of the men’s team as “p*ssies,” “b*tches,” and “retard[s]” and asked if they were on their “period.”  Rutgers nonetheless selected Zasowski as the interim head coach.

Last week, in Savage v. Township of Neptune, the Appellate Division ruled that a 2019 amendment to the New Jersey Law Against Discrimination (“LAD”) does not prohibit parties from entering into non-disparagement clauses.

Female police officer accuses Police Department of discriminationThe Appellate Division’s opinion involved Christine Savage, a Sergeant for the Township of Neptune Police Department.  Sgt. Savage brought an employment discrimination case against Neptune, Police Director Michael J. Bascom, Police Chief James M. Hunt, in which she alleged they engaged in sexual discrimination, harassment, and retaliation in violation of the LAD, the New Jersey Civil Rights Act (“NJCRA”), and the free speech provision of the New Jersey Constitution.

Sgt. Savage eventually settled her case.  The settlement agreement included a mutual non-disparagement provision which prevented the parties from making any statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”

A recent unpublished decision from the Third Circuit concludes that an employer can fire an employee because it honestly believes she abused her Family & Medical Leave Act (“FMLA”) leave.

Marsha VanHook worked as a patient representative for Cooper Health System for approximately nine years.  One of her sons has attention deficit hyperactivity disorder (“ADHD”), severe oppositional defiance disorder, chronic depression, and anxiety.

Appeal denied in Family & Medical Leave Act ("FMLA") lawsuitFor many years, Cooper allowed Ms. VanHook to take an intermittent FMLA leave to care for her son when he was not in school or supervised by someone else. However, Ms. VanHook’s supervisor eventually heard from another employee that Ms. VanHook might be using her FMLA leave inappropriately.  In addition, Cooper’s Human Resources Department heard that Ms. VanHook was often using her FMLA Leave immediately before a weekend or another day off, which raised suspicion.

A recent decision from New Jersey’s Appellate Division recognizes it can be retaliation in violation of the Conscientious Employee Protection Act (“CEPA”) for a police department to harass one of its members because he objected to a new policy he reasonably believed is an illegal arrest quota system.

Police officer experiences retaliation for objecting to quota systemCalvin Anderson has been a member of the East Orange Police Department for over 20 years.  His supervisor, Anthony Cook, instituted a “productivity improvement system” that Anderson believed violated a New Jersey law that prohibits police departments from instituting arrest quota systems.  Anderson, who was a lieutenant at the time, complained about the productivity improvement system and refused to implement it.

Anderson filed a lawsuit against the Department and Cook, alleging they retaliated against him in violation of CEPA.  He claims Cook retaliated against him by investigating him for neglect-of-duty regarding his supposed failure to complete an accident-reconstruction report.  Even though the investigating officer concluded Anderson did nothing wrong, Cook then filed a complaint to the Internal Affairs Department about the same incident.  In addition, Cook required Anderson to increase his productivity in terms of stops and arrests in a crime zone, and issued him a written warning notice for failing to do so.  Cook also threatened to bring neglect-of-duty charges against Anderson for failing to file an incident report about another officer, even though doing so was the responsibility of a sergeant.  In addition, Cook ordered another captain to investigate Anderson, and threatened to issue a written warning to Anderson, for failing to report to a lineup for a July Fourth celebration.  Likewise, Cook berated Anderson in front of the mayor for supposedly neglecting his duty and wasting taxpayer dollars, and frequently assigned him to the midnight shift, which prevented him from working traffic details, which Anderson claims caused him to lose $10,000 to $12,000 in compensation.

New York expands whistleblower lawOn October 28, 2021, New York Governor Kathy Hochul signed in law an amendment to New York’s Whistleblower law, Labor Law Sections 740 and 741.

Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection.  That will change when the amendment goes into effect on January 26, 2022.

New Protected Activities

Last week, the New Jersey’s Appellate Decision recognized that an employer cannot retaliate against an employee because he refused to lie to support the company defend against another employee’s sexual harassment lawsuit.  While that might seem obvious, the twist is that the employee alleging retaliation did not even know the other employee’s case involved sexual harassment.

Emiliano Rios is an emergency medical technician (“EMT”).  He worked for Meadowlands Hospital Medical Center as the Supervisor of the Emergency Medical Services Department (“EMS”).

EMT's retaliation lawsuit reinstatedIn April 2014, one of Mr. Rios’s coworkers, Heatherlee Bailey, filed a sexual harassment lawsuit against the hospital.  However, Mr. Rios was completely unaware that Ms. Bailey had been sexually harassed.

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