New Jersey Appellate Division Addresses What Constitutes Protected Whistle-Blowing Activity Under CEPA

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Employment & Labor Law Alert

February 26, 2008

In an unpublished but significant decision, Massarno v. New Jersey Transit, et al., 2008 WL 239133 (January 30, 2008) the New Jersey Appellate Division, affirmed summary judgment for the defendant employer New Jersey Transit (“NJT”) holding that the plaintiff failed to set forth a prima facie case for retaliatory discharge under the Contentious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 et seq. Importantly, the Appellate Division made clear that a plaintiff may not rely on statutes and regulations that are not specifically related to the complained of conduct to show his employer violated a law, rule, regulation, or public policy–a threshold requirement of a CEPA claim.

The Appellate Division also addressed who can be considered a whistle-blower under the CEPA statute. Significant for employers, the Appellate Division favorably viewed the defendant’s argument that plaintiff was not a whistle-blower as her whistle-blowing activity constituted nothing more than performing her job responsibilities, and held that merely doing ones job is not protected whistle-blowing activity.

Factual Background

In August 2002, plaintiff, a security operations manger for NJT, discovered blueprints and schematics for bridges, tunnels, a new rail operations center, underground gas lines, and building specifications in four recycling bins on a loading dock outside a building NJT shared with other tenants. Plaintiff alleged she was outraged at the discovery and that “it had to at least be some kind of an infraction or violation of policy and some kind of threat to public safety and security” to leave the documents “where anyone can get them.”

Plaintiff’s supervisor was not working the day she discovered the discarded documents so she reported her discovery to NJT’s Executive Secretary. When plaintiff’s supervisor returned and learned of her report, plaintiff alleged he was “livid” and “furious” that she went over his head. An investigation into the discovery of the discarded documents on the loading dock was conducted by NJT’s Director of System Intelligence. The investigation revealed that the loading dock was kept locked up and secured and was not available for public access.

Over the next several months plaintiff’s relationship with her supervisor deteriorated and they had several disagreements over the implantation of a new NJT program. Plaintiff was ultimately terminated for insubordination in January 2003.

Plaintiff subsequently filed a Complaint in New Jersey Superior Court, alleging she was wrongfully terminated in violation of CEPA. After extensive discovery defendants moved for summary judgment and plaintiff cross-moved for partial summary judgment seeking a ruling that she was a NJT employee and that she had identified a clear mandate of public policy. In support of her argument, plaintiff produced an expert report by Harry Smith, a security consultant, and retired New York City police lieutenant. Smith opined that the blueprints and schematic discovered by plaintiff “would be a terrorist bonanza” and that in his professional opinion NJT’s failure to properly destroy these documents was a “departure from generally accepted standards and practices within the security industry, especially in the post 9-11 era of Homeland Security awareness.”

The trial court granted summary judgment to defendants and held that “even under the circumstances of an extremely security conscious environment we should still have,” she could not find a clear public policy concerning public safety or health that was violated by the placement of the plans and drawings in the recycling bin on the loading dock. Additionally, the trial judge noted that plaintiff’s job was to find security jobs and fix them, and as such getting permission to take possession of the documents she believed to be a security risk could hardly be considered protected whistle-blowing activity.

The Appellate Division’s Decision

In affirming the trial court’s decision the Appellate Division first reviewed what is considered a violation of public policy under the CEPA statute. The court relying on Maw v. Advanced Clinical Commc’ns, Inc., 179 N.J. 439 (2004) and Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998) emphasized that the purpose of CEPA is to protect and encourage employees to report illegal or unethical workplace activities, and that in identifying a clear mandate of public policy the complained of conduct must actually pose a threat of public harm, not merely private harm. Notably, the Appellate Division agreed with defendants and held that a expert’s opinion is not a source of public policy. However, the Court did note that a expert report can provide evidence of the reasonableness of a plaintiff’s belief that a public policy had been violated. Moreover, the Appellate Division held that none of the numerous statutes and regulations cited by the plaintiff were sufficient to show NJT violated any law, rule, regulation or clear mandate of public policy, as none of the authorities cited by the plaintiff specifically governed the disposal of documents by a governmental agency. Thus, the Appellate Division agreed with the Trial Court and held that NJT’s disposal of the documents in a recycling bin on a gated loading dock was not a clear violation of statute, regulation or public policy.

The Appellate Division then addressed the question, that even if the disposal of the documents violated a public policy, could plaintiff’s action in reporting the disposal of the blueprints to the Executive Secretary be considered whistle-blowing under the CEPA statute. Again, the Appellate Division agreed with the trial court’s analysis, and held that plaintiff was “merely doing her job as the security operations manager by reporting her findings” and as such could not be considered a whistle-blower.

This holding could prove extremely helpful to employers in defending CEPA claims. Often, a plaintiff’s alleged whistle-blowing activity occurs in connection with the performance of their job duties, and therefore should not be considered whistle-blowing under the CEPA statute. However, New Jersey Courts have yet to officially endorse this defense for CEPA claims.

Conclusion

The decision in Massarno is notable for several reasons. First, it demonstrates the Appellate Division’s continued willingness to dismiss a plaintiff’s CEPA complaint for failure to identify a clear violation of statute, regulation or public policy. Secondly, it clarifies who can be considered a whistle-blower under the CEPA statute. Significant for employers, the Appellate Division favorably viewed the defendant’s argument that plaintiff was not a whistle-blower as her whistle-blowing activity constituted nothing more than performing her job responsibilities.