The failure to establish a causal nexus between protected whistleblowing activity and the termination of her employment was the demise of plaintiff’s whistleblowing claim in a recently issued Appellate Division opinion in Brown v. Regina Foley, et. al. 2021 N.J. Super. Unpub. LEXIS 957 (decided May 20, 2021).  In Brown, the reviewing court also affirmed that representations made in an employee handbook promising an employee a pre-termination disciplinary hearing are unenforceable when accompanied by a prominently displayed disclaimer making clear that representations contained in the handbook do not create an express or implied contractual obligation requiring the employer to comply with its own policies and procedures.

Plaintiff, Anne Brown (“Brown”), a pharmacy manager at Bayshore Community Hospital (“Bayshore”), asserted claims for wrongful discharge in violation of, among others, the New Jersey’s Conscientious Employee Protection Act (“CEPA”), N.J.S.A.  34:19-1 to -14. Bayshore terminated Brown for failure to report the undocumented and unauthorized removal of fentanyl vials from the hospital pharmacy’s drug dispensary cabinet, finding her failure to take any steps to report the missing vials to the Drug Enforcement Agency to be “egregious”. Brown argued in her complaint that the nonretaliatory reasons offered by Bayshore to justify her firing were pretext and that the true reason for her firing was, inter. alia., that she along with the hospital’s Chief Operating Officer had in the past complained about the alleged inferiority of a new automated system for dispensing controlled drugs. Brown also alleged she was not legitimately terminated because of the hospital’s failure to abide its prescribed disciplinary procedures when it failed to hold for her a review hearing prior to terminating her employment. Brown appealed the trial court’s grant to Bayshore of a motion for summary judgment dismissing her CEPA claim along with her other pled legal claims.

New Jersey’s CEPA law is designed to protect employee “whistleblowers,” making it unlawful for employers to take adverse employment action against employees who engage in protected, “whistleblowing” activities. N.J.S.A. §§ 34:19-1 et. seq.   To survive a motion for summary judgment in a CEPA action, a plaintiff must demonstrate that: (1) he or she reasonably believed that his or her employer’s conduct was in violation of a law, rule, regulation, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Chiofalo v. State, 238 N.J. 527, 541 (2019).  A plaintiff-claimant bringing an action under CEPA need not show that his or her employer actually conducted fraudulent or illegal activity, rather they are only required to produce sufficient evidence to support an objectively reasonable belief that a violation has occurred. Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003).

In rejecting Brown’s arguments on appeal as to the dismissal of her CEPA claim, the Appellate Division agreed with the motion court that Brown failed to show a factual nexus between her protected activity − the complaints Brown raised about the automated cabinet safety issues − and her termination. In doing so, the appellate court reasoned that Brown’s claims were a series of disjointed claims spanning over five years and without any sufficient connection, direct or indirect, to any retaliatory action taken by her employer. Specifically, the court found Brown’s complaints regarding the cabinets never resulted in an adverse employment action. Like the motion court below, the appellate court also concluded that Bayshore’s firing of Brown for failing to notify hospital officials of the diversion of fentanyl, and failure to “exercise or demonstrate leadership”, were legitimate and that any complaints or warnings Brown made regarding the cabinet’s functionality and impact on patient safety were not related to the fentanyl diversion.

The Appellate Division also rejected Brown’s contention that Bayshore was required to provide her with a pre-termination hearing as it promised it would in its employee handbook to be without merit because as an at-will employee she was not contractually guaranteed the disciplinary procedures outlined in the employee handbook. At-will employment is a common law doctrine that allows employers and employees to freely terminate an employment relationship with or without cause when no employment contract between the parties exists. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 65-66 (1980).  An employee handbook may give rise to an employment contract if its provisions “contain an express or implied promise concerning the terms and conditions of employment.” Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 393 (1994).  However, a prominently displayed disclaimer in a handbook, as was the case here, destroys any reasonable employee expectation that such promises create an enforceable express or implied employment contract, or contractual obligation on the part of the employer. Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 16 (App. Div. 1996).

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

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