In Fred Brown v. New Brunswick Board of Education, Docket No. A-2501-07T2, the Superior Court of New Jersey, Appellate Division, ruled against the plaintiff because he failed to state a case under New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1, et al.
The plaintiff, a principal of a school, argued that the filing of a grievance under a collective bargaining agreement constituted a protected activity under New Jersey's CEPA law. The plaintiff was suspended after filing a series of grievances opposing reprimands imposed by the school board for comments at a PTA meeting and other conduct the board deemed unacceptable. The plaintiff claimed that the suspension was in retaliation for his filing the grievances. The issue before the court was whether the filing of a grievance constituted a protected activity under New Jersey whistle blower statute, CEPA. The New Jersey Appellate Division rejected plaintiff's arguments and held that the filing of a grievance is not a protected activity under the CEPA statute.
Plaintiff was the principal of the Alternative High School in New Brunswick. At a PTA meeting on February 2, 2005, plaintiff made certain inappropriate statements regarding the treatment of female students by male students. Plaintiff told the audience that his greatest challenge was the treatment of his young female students. He stated that the young men did not treat them with dignity and respect and commonly referred to them as bitches and whores. Plaintiff reiterated that negative radio and television programs were demeaning to the females in general. Plaintiff was reprimanded.
On the same day he received the reprimand for his comments at the PTA meeting, plaintiff received a second reprimand for failing to submit his school budget timely and telling the superintendent "not to blow a gasket" when the superintendent called him about it. The second reprimand stated that plaintiff was in dereliction of his duties and "demonstrated a severe lack of administrative care and due diligence." Plaintiff claimed he submitted the budget by e-mail before the January 19, 2005 due date, but he could not document that claim.
Plaintiff claimed the two reprimands created a hostile work environment in that they were aimed at trying to make senior employees to retire. Plaintiff filed a grievance with his union when the superintendent refused to remove the two reprimands.
Plaintiff' grievance with the Board of Education claimed that the reprimand for his inappropriate language at the PTA meeting was without any basis in fact. He further claimed that the reprimand for failure to file the budget timely was unfounded because prior to the January 19, 2005 due date, he sent an e-mail to the business administrator in which he indicated what increases he would need in his 2005-2006 school budget. He did not, however, claim to have e-mailed the budget by the due date, as he had earlier. In the grievance, plaintiff sought to have the Board remove the two letters of reprimand from his file. Plaintiff withdrew the grievance on May 17, 2005.
On March 17, 2005, however, the superintendent had advised plaintiff that he was suspended with pay for just cause. Plaintiff's suspension was concluded and he returned to work on April 4, 2005.
Plaintiff filed his complaint in the Superior Court of New Jersey on March 30, 2005, alleging that (1) he was suspended on March 17 in retaliation for filing the grievance on March 16, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; (2) the retaliatory conduct was "designed to intimidate, harass and otherwise cause injury to the plaintiff and to severely adversely alter conditions of his employment;" and (3) defendants' conduct was "contrary to the clearly established public policy of the State of New Jersey."
The Trial Court granted summary judgment on behalf of the defendants because it found that the plaintiff did not establish a cause of action under CEPA.
On appeal, plaintiff argued that (1) he established a valid cause of action under CEPA.
CEPA is New Jersey's whistle blower statute. It was enacted in 1986 to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. CEPA protects from adverse employment action those employees who believing that the public interest overrides the interest of the organization they serve, publicly blow the whistle and disclose corrupt, illegal, fraudulent or harmful activity.
To establish a prima facie case under CEPA, a plaintiff must prove the following elements:
(1) that he or she reasonably believed that his or her employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law;
(2) that he or she performed whistle-blowing activity described in N.J.S.A. 34:19-3(a),(c)(1) or (c)(2);
(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.
Failure to satisfy any one of these four elements precludes a plaintiff's claim.
In this case, the trial court found that plaintiff failed to establish a prima facie CEPA claim because he did not meet the first two elements.
N.J.S.A. 34:19-3 describes employee conduct subject to protection under CEPA:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer ... that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, ... or
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may de-fraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, ... or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or ...
(2) is fraudulent or criminal, ... or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
The first element of a CEPA claim requires a plaintiff to at least reasonably believe that some law, rule or regulation was being violated by his or her employer's conduct. The plaintiff may be mistaken in this belief, and there may, in fact, be no violation of law, rule or regulation, but he or she may proceed if the belief was reasonable.
In this case, the plaintiff argued that the superintendent's (1) creation of a hostile work environment meant to pressure older employees into retirement, and (2) disregard of the grievance procedures satisfy the first element. He further argued that his filing the grievance satisfies the definition of a whistle-blowing activity as set forth in N.J.S.A. 34:19-3(a),(c)(1) or (c)(2), because it exposed the superintendent's age discrimination and non-compliance with the grievance process protected by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -13.
The Appellate Division noted that the filing of a grievance is the commencement of an administrative adjudicatory process that allows resolution of a grievant's claim, and therefore, arguing that the filing of a grievance satisfies the second element of a CEPA claim is akin to arguing that the filing of a complaint in Superior Court alleging age discrimination by an employer establishes that element.
The Appellate Division further stated that while "CEPA allows for a variety of means by which the whistle may be blown, initiating an adjudicatory process is not one of them. The very nature of the adjudicatory process - whether administrative by grievance or judicial by complaint - is to provide a neutral forum for airing the complaint, determining whether the complaint has a legitimate basis through adversarial proceedings, and adjudicating an out-come. CEPA aims to protect employees who do not have an adjudicatory process available to air a complaint or who are pressured or intimidated into forgoing their adjudicatory rights. If plaintiff genuinely believed that the superintendent and/or the Board was creating a hostile work environment for senior employees, his remedy was to file a complaint for age discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, or the Federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. ยงยง 621 to 634. Both of those statutes protect employees who file such claims. Plaintiff chose the administrative grievance process as he was permitted to do.
The Appellate Division found that the two reprimands were based upon his conduct, and neither had anything to do with age. The Appellate Division found that the plaintiff's attempt to contort the grievance process into a purported whistle-blowing trivializes CEPA, its intent and the employees it seeks to protect.
Accordingly, the Appellate Division held that the plaintiff did not establish a prima facie case for a CEPA claim.
