NEGATIVE PERFORMANCE REVIEWS ALONE MAY BE ENOUGH TO CONSTITUTE ADVERSE EMPLOYMENT UNDER NEW JERSEY’S WHISTLEBLOWING LAW.

New Jersey’s whistleblowing law is known as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”).  To prove a CEPA case, an employee must show that because they disclosed, objected, and/or or refused to participate in activities engaged in by their employer or their coworker(s) that they reasonably believed to be a violation of law, were fraudulent or were contrary to public policy, they suffered an adverse employment action.  CEPA defines an adverse employment action, i.e., to be a “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e). Although our courts in New Jersey recognize that retaliatory action can take the form of “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.” Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003), the question of whether the issuance of poor performance evaluations may be viewed as an adverse employment action under CEPA is not so clear.

The courts in New Jersey did not always consider an employee who received poor performance evaluations to have suffered retaliation under CEPA.  See Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366 (2002) (finding negative performance evaluations were not an adverse employment action where plaintiff was told her job was safe). However, for repeated negative performance evaluations to qualify as an adverse employment action under CEPA, our historically an employee to either 1) prove that the evaluation(s) were used as the direct basis for their termination, suspension, demotion or reduction in pay/benefits; or 2) show that the evaluation(s) was so harsh, unjust, and offensive that it caused them to suffer severe physical or psychological symptoms which forced them to take a leave of absence or resign. Id.; See also  Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003); Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011)

Recently, however, the Unites District Court of New Jersey in Goode v. Camden City Sch. Dist., U.S. Dist. 2019 LEXIS 203303 (November 22, 2019), held that negative performance reviews alone may be enough to constitute an adverse employment action under CEPA. In Goode, the plaintiffs were teachers who sued their school district, as well as their respective individual principals, for violations of CEPA and other statutes. They alleged that the superintendent implemented a policy to use a new evaluation system as pretext to pressure teachers over the age of forty (40) to retire. Id. at *4. Under the new evaluation method, superintendents were required to forward tenure charges of inefficiency to the Commissioner of Education if they received consecutive annual teacher performance evaluations with scores of “partially effective” or “ineffective.” The teacher as then subject to being terminated, suspended, demoted, or receive a deduction in pay/benefits if the Commissioner sustained the tenure charges.

One of the Goode plaintiffs (age 69) claimed her principal violated CEPA when he retaliated against her after she complained about age discrimination by giving her multiple scores of “partially effective” or “ineffective” in her annual performance reviews. Because these poor scores would  subject her to tenure charges, she decided to announce her retirement before the charges reached the Commissioner; afterwards she filed her CEPA claim. The District Court held that “[c]ontrary to Defendants’ assertion, the fact that the plaintiff voluntarily resigned her position is not fatal to her CEPA claim… While these incidents are not as extreme as those examined by the New Jersey Supreme Court in Green and Donelson, there are important similarities, particularly regarding the manipulation of performance evaluations. Importantly, the cumulative effect of the low evaluations raised the specter of tenure charges for [plaintiff], impacting her job security… In light of the mandate to construe the CEPA liberally, the Court finds that the pattern of retaliatory activity … was virtually equivalent to discharge. ” Id. at *41-42. (emphasis added). Hence, the District Court determined that for poor performance evaluations to constitute retaliation under CEPA, an employee need only show that the negative evaluations established a high probability of a discrete adverse employment action, i.e., termination, suspension, demotion, or reduction in pay/benefits.

If you have suffered retaliation from your employer for having disclosed, objected to, and/or refused to engage in conduct you reasonably believe violated law, was fraudulent or was contrary to public policy, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.