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).