Article by Capehart Scatchard

By: Ralph R. Smith, 3rd, Esq.

Thanks to a recent decision by the New Jersey Appellate Division, a school bus mechanic had his whistleblower claim under New Jersey’s CEPA law reinstated after it was originally dismissed by a Morris County trial judge.

In Dukin v. Mt. Olive Twp. Bd. of Ed, the plaintiff had reported to the State Motor Vehicle Commission that a district school bus needing brake repairs was wrongfully placed into service.  A short time thereafter, on January 19, 2010, plaintiff received two written reprimands, one for operating a vehicle in the district’s garage without proper ventilation of the exhaust, and a second for phoning his union representative while at work to report the first reprimand.  A few days later, plaintiff complained to the New Jersey Office of Public Employees Occupational Safety & Health that he had been ordered to elevate a bus using a bumper jack that was on uneven pavement, contrary to accepted safety procedures.  Thereafter, on January 25, the plaintiff was called into a meeting with his district superintendent and was asked why he told the state inspector about the bus with brake problems.  Plaintiff was then told that he was being fired, but after he said that his right to make such a report was protected under the whistleblower laws, the superintendent asked for a break, and thereafter reinstated the plaintiff and said he would not be punished for his actions.

An inspector from the Public Employee’s Occupational Safety and Health Department eventually visited the district in response to plaintiff’s Complaint and found 13 regulatory violations and imposed fines of $4,500.00 per day.  Four days later, plaintiff’s union representative told him he was being terminated and that the district would pay his salary through May, 2010 (and his health benefits through June, 2010) if he agreed to release the school district from liability.  The plaintiff said no to the deal and remained working at the district until June, 2010, when his contract was non renewed.

Plaintiff thereafter brought a lawsuit against the school district, and four of its administrators.  The defendants moved to dismiss the case, claiming that the non renewal of plaintiff’s contract was due to the elimination of his position for financial issues and not his whistle blowing activities.  While the court ultimately determined that plaintiff’s reports about the bus and other related work safety conditions in the garage were indeed whistleblower activities, it nonetheless granted summary judgment accepting the district’s argument that plaintiff’s position was eliminated for budgetary reasons.

On appeal, the Appellate Division found that the plaintiff had provided sufficient evidence to avoid having his case dismissed by raising a disputed factual issue concerning the articulated reason for his contract non renewal.  In its decision, the court reiterated the very liberal standard to be applied in assessing CEPA claims here in the State of New Jersey.  Specifically, once a plaintiff establishes a prima facie case of possible protected whistle blowing under CEPA, the burden shifts to the employer to rebut the presumption of unlawful retaliation by articulating a legitimate, non retaliation reason for the employment action.  To avoid summary judgment, a plaintiff need not have direct evidence that an employer retaliated against him, but must instead demonstrate such weaknesses, inconsistencies or contradictions in the defendant’s proffered reasons for the underlying action that a reasonable fact-finder could conclude that they are unworthy explanations for the disputed employment action.  The Appellate Division found that sufficient evidence meeting this burden was submitted by plaintiff in showing that while the district claimed that his position was eliminated for financial reasons, it nevertheless hired another mechanic subsequent to the non-renewal of plaintiff’s contract.  Accordingly, the court reinstated plaintiff’s CEPA claim and sent the matter back for handling at the trial court level.

This case highlights that, whenever an employer is seeking to discipline an employee, it is critical that the employer do so for non-retaliatory reasons, and in defending against any potential whistle blower claim, the employer must be able to articulate a legitimate reason for the disciplinary action that can withstand any claim that it is pretext for any type of retaliation.   Under the circumstances presented by the facts in this case, the plaintiff was able to offer enough evidence raising a question about the motives underlying the non-renewal of his contract to avoid a pretrial dismissal of his case.  Accordingly, more so than ever, in dealing with employees who may have engaged in protected CEPA type whistle blowing, any adverse actions taken against the employee must be supported by legitimate non-retaliatory reasons, and whenever encountering such potential disciplinary situations, it is wise to seek legal counsel to ensure that any such action will withstand later legal scrutiny.