Retaliatory adverse employment actions are not only limited to termination. If an employer engages in a bad faith or a sham internal investigation against an employee after the employee blew the whistle about conduct, he or she reasonably believed violated the law, was fraudulent, or was contrary to public policy, such an employee may have a viable claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”). Generally, New Jersey state courts have held that an employer’s investigation of an employee does not in itself constitute a “retaliatory action.” Beasley v. Passaic City., 377 N.J. Super. 585, 608 (App. Div. 2004). However, if an employee makes a strong showing that an investigation was illegitimate or in bad faith, then the investigation may qualify as an “adverse employment action,” permitting the aggrieved employee to file an affirmative CEPA claim. Id.

To establish a prima facie CEPA claim, a plaintiff must satisfy four elements:

(1) that he . . . reasonably believed that his . . . employer’s conduct was violating either a law or a rule or regulation promulgated pursuant to law;

(2) that he . . . performed whistle-blowing activity described in N.J.S.A. 34:19-3[(a), (c)(1), or (c)(2);

(3) an adverse employment action was taken against him . . .; and

 (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. 

[Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 127 (App. Div. 2002).]

(emphasis added)

Focusing further on the third element, an “adverse employment action” occurs when there has been a “demotion, suspension, discharge, and other actions that go against the terms and conditions of employment,” N.J.S.A. 34:19-2(e) to -3. Consequently, actions taken other than a discharge, suspension, or demotion may nonetheless be considered actionable retaliatory conduct under the catch all language “against terms and conditions of employment.” Beasley, 377 N.J. Super. At 607. Specifically, “terms and conditions of employment” are defined as, “matters that go to the essence of the employment relationship and can include the length of the workday; increase or decrease in salaries, hours and benefits; physical arrangements and facilities; and promotional procedures.” Id. at 608 (quoting Twp. of W. Windsor v. Pub. Emp’t Rel. Comm’n., 78 N.J. 98, 110 (1978)). An employer illegitimately investigating an employee at work in bad faith may constitute an adverse employment action against the employee’s “terms and conditions of employment.” Id.

To illustrate, the Appellate Division most recently in Anderson v. City of E. Orange, No. A-4206-19, 2022 N.J. Super. Unpub. LEXIS 419, at *3 (App. Div. Mar. 15, 2022) held that a bad faith internal investigation by Defendant-Employer East Orange Police Department (“EOPD”) of its police lieutenant Calvin M. Anderson (“Anderson”) could alone suffice as the basis for a valid whistleblowing claim under CEPA. Id. In 2018, Anderson’s supervisor Anthony Cook (“Cook”) ordered EOPD officers, including Anderson, to implement a new “productivity improvement system.” Id. at 2. Anderson refused to implement Cook’s “productivity improvement system” complaining how it really functioned as an illegal arrest quota system in violation of N.J.S.A. 40A:14-181.2. Id. After Anderson objected to Cook about Cook’s unlawful arrest quota system, Cook retaliated against him by subjecting Anderson a neglect-of-duty investigation.

According to the EOPD the internal investigation was warranted because of Anderson’s alleged failure to complete an accident-reconstruction report as well as submitting a complaint to internal affairs about that incident even though the investigating officer had concluded Anderson was correct in not submitting the report. Id. at 4. Shortly thereafter, Cook again threatened to file neglect-of-duty charges against Anderson, but this time for not filing a line-of-duty incident report regarding another officer even though it was the responsibility of a Sergeant to submit the report. Id. Cook also instructed an EOPD Captain to investigate Anderson for failing to report to a lineup for a July Fourth celebration. Id. These instances of retaliation by Cook, amongst others, prompted Anderson to file suit under CEPA, naming the EOPD and Cook as defendants. Id. Five (5) months after Anderson filed suit, he was promoted and became an EOPD Captain. Id.

Before the trial judge, Cook and the EOPD moved for a motion of summary judgment arguing Anderson failed to establish a prima facie CEPA case because he had been promoted to captain and therefore did not suffer any adverse employment action. Id. at 5. In opposition to the motion, Anderson argued that after complaining about the quota system, he suffered baseless investigations, was issued written warnings, was threatened with discipline, and deliberately made to look like an incompetent police officer. Id. at 6. In granting the EOPD’s motion for summary judgment the trial level judge found that Anderson had failed to show under the third element of the CEPA prima facie case that the retaliatory actions Anderson alleged were “sufficiently severe or pervasive” and had not ‘alter[ed] [plaintiff’s] employment position…in an important and material manner” because Anderson was promoted to captain. Id. For these reasons, the trial judge granted EOPD’s motion for summary judgement and Anderson appealed. Id.

On appeal, Anderson argued the trial judge erred in granting summary judgement because a genuine issue of material fact exists as to whether the alleged adverse employment action taken against him combine to make up a pattern of retaliatory conduct in violation of CEPA. Id. at 7. The appellate court agreed with Anderson and reversed the trial judge’s motion on this basis. Id. at 12. The appellate court noted how Anderson being promoted to Captain five months after he filed the complaint “does not make him whole or constitute a recission of the other alleged acts of retaliation” because the “constant threats and blatant retaliation by Cook” caused Anderson emotional distress and economic harm. Id. at 13. Furthermore, when Cook pursued false allegations against Anderson and attendant baseless investigations, he subjected Anderson to “disrespect and insubordination by subordinate officers” because of the “ongoing denigration.” Id.  For these reasons, the appellate court concluded a “genuine issue of material fact” exists as to whether Anderson suffered an adverse employment action. Id. at 3. Anderson illustrates the complex case-by-case analysis courts are required to undergo when determining whether an “adverse employment action” against an employee has been shown.

If you believe you have been or are a victim of retaliation by an employer for whistleblowing an employer’s conduct, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.

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