The New Jersey Supreme Court recently addressed, among other issues, the question of whether a “suggested course of action” by a supervisor to a subordinate can suffice as a reasonable belief under New Jersey’s whistleblower law that the supervisor wants the subordinate to engage in conduct that violates law or public policy.  Allen v. Cape May County, 2021 N.J. LEXIS 392 (decided May 12, 2021). The unclear answer provided by the majority in Allen to this question is that it depends on the facts and circumstances underlying the communications between supervisor and subordinate. Justice Albin’s opinion in dissent (in part) was as equivocal.

Kim Allen (Allen) was the Purchasing Agent for Cape May County (County) under a renewable contract of employment. She reported to Gerald Thorton (Thorton), the County Freeholder Director. The story begins when a law firm named Capehart & Scatchard (Capehart) submitted a bid to represent the County in its workers compensation cases specifying only a proposed hourly rate rather than the County’s preferred per-case quote. Upon learning this, Jeffrey Lindsay, who as Director of Human Resources and Thorton’s stepson, oversaw the department that handled workers’ compensation matters for the County, approached Allen, and asked whether Capehart could fax a new proposal page to supplement the bid. Allen told Lindsay that it would be “illegal” to accept a substituted page (no page was ever switched out on the bid). Subsequent thereto, Allen told attorneys from a law firm named Ballard Spahr who were hired as independent investigators of an unrelated matter, about her exchange with Lindsay and how concerning it was to her. Ballard Spahr’s findings were submitted to the Freeholders in which the firm concluded that Lindsay had done nothing wrong.

Following this, the Freeholders nonrenewed Allen’s contract based on Thorton’s recommendation.  Thorton claimed he made this recommendation because a number of department heads had complained about Allen’s job performance. Consequently, Allen filed a wrongful discharge whistleblowing lawsuit under New Jersey’s Conscientious Employee Protection Act (CEPA) alleging that her response to Lindsay’s inquiry about Capehart’s bid proposal and her statement to the Ballard Spahr investigator about that inquiry constituted CEPA-protected conduct.

On the County’s motion for summary judgment, the motion trial court concluded that Allen reasonably believed that Lindsay intended to violate the Local Public Contracts Law when he asked whether a vendor could substitute a page in a bid, and that plaintiff engaged in CEPA-protected conduct under N.J.S.A. 34:19-3(a) when she informed the Ballard Spahr investigators about her discussion with Lindsay. However, the trial court nonetheless granted summary judgment motion concluding the County had met its burden of establishing a legitimate, non-retaliatory reasons for their decision not to renew Allen’s contract.

On appeal the Appellate Division reversed and remanded the matter to the trial court. The majority found genuine issues of material fact as to the causal nexus between plaintiff’s CEPA-protected activity and the County’s decision not to reappoint her and held that there was a factual dispute with respect to defendants’ proffered reasons for that decision.  The County appealed to the New Jersey Supreme Court.

The Supreme Court began its analysis by pointing out that it was unclear to it whether Allen was asserting a claim under CEPA’s N.J.S.A. 34:19-3(a) which bars retaliation against an employee who “discloses or threatens to disclose to a supervisor or public body an activity, policy or practice of the employer” that the employee reasonably believes to be unlawful, fraudulent, or criminal under the statutory terms, or alternatively, under N.J.S.A. 34:19-3(c) which bars retaliation against an employee who “objected to or refused to participate in”  an “activity, policy or practice” of the employer that she reasonably believed was a violation of “either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy.” (emphasis added). Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).  During oral argument, counsel for Allen informed the Court that her Complaint was brought under N.J.S.A. 34:19-3(c). Because it was unclear to the Court whether the summary judgment motion was decided based on N.J.S.A. 34:19-3(c), the Court remanded Allen’s claim for additional proceedings with instruction to, inter. alia., apply N.J.S.A. 34:19-3(c) when deciding whether Allen reasonably believed that Lindsay’s inquiry was an “activity, policy or practice” that was unlawful, as defined by N.J.S.A. 34:19-3(c)(1), or contrary to a clear mandate of public policy, as defined by N.J.S.A. 34:19-3(c)(3), and whether she had engaged in protected whistleblowing activities as defined under this section.

In his dissent, Justice Albin found that, “Lindsay’s question about swapping out a bid page was not a mere inquiry but an indication of a desired course of action in violation of the public contracts law. After all, in Allen’s mind, Lindsay was both a department head and an attorney, and therefore knowledgeable about the public bidding laws.” Putting a finer point on his “suggested course of action” analysis, Justice Albin opined:

The character and thrust of a question can be understood only by its context. When a course of action is cloaked in the form of a question, particularly by a person wielding power in an employment context, the employee on the receiving end typically hears the message. Allen testified that she got the message and pushed back, telling Lindsay that switching a bid page would be illegal.”

(emphasis added)

Because Justice Albin concluded there was sufficient evidence in the record to support all elements of Allen’s CEPA claim under both N.J.S.A. 34:19-3(a) and (c), he dissented from the majority view regarding the need for a remand to the motion court as the majority.  Rather, Justin Albin would have remanded the case for a trial by jury on all contested issues.

If your employer retaliates against you for disclosing, reporting, or refusing to engage in activity that you reasonably believe is unlawful, do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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