The New Jersey Conscientious Employee Protection Act (“CEPA”) is arguably the broadest employee protection law in the country. CEPA protects an employee from workplace retaliation related to the employee’s “whistle-blowing” activities. Thanks, in part, to documentation of performance issues, in late November 2018, the New Jersey Appellate Division upheld a trial court’s decision dismissing an employee’s CEPA claim against her employer and supervisor. The decision marks an important victory for employers, since CEPA claims are rarely decided in favor of the employer. This case also teaches the valuable lesson that diligent documentation can be an employer’s best defense to whistle-blowing and harassment claims.
In May 2012, Tammy Russell was hired by Rutgers Associate Chancellor to serve as the Director of the Rutgers Camden Educational Opportunity Fund Program (“EOF”). The EOF is funded by the State, and provides scholarships, academic year and summer program access to higher education for economically or educationally disadvantaged students.
Russell was responsible for oversight of the program budget, which is submitted annually to the state. Early in her employment, Russell discovered that EOF funds may have been used to pay salaries for non-EOF Rutgers staff. Russell also complained about issues the state raised regarding the EOF reports, and that the employees who replaced her EOF duties lacked experience and therefore did not complete the reports correctly. Once notified of the issues by Russell, Rutgers performed an internal investigation of its EOF program. The report concluded that there was no need for further investigation.
Russell alleged after she notified Rutgers of the issues in the EOF program, she was treated differently in the workplace. Russell alleged that budgeting responsibilities were taken away from her, she was told that she would no longer have access to the budget, and that she was no longer responsible for completing state mandated EOF reports. However, Russell was still responsible for reviewing and approving items in the budget, and signing off on Camden’s ultimate EOF budget. Although Russell also claimed that she was retaliated against, she admitted that her supervisor never forced her to approve the budget or otherwise threatened her about it in any way.
Russell also had performance issues throughout her employment at Rutgers. Although she received “meets expectations” on her performance reviews, Russell had communication issues with both her supervisors and co-workers. Employees complained she was “abrasive, harsh, and combative.” Additionally, Rutgers documented complaints from employees regarding Russell’s job performance, and shared a memo with Russell regarding her “poor communication and program management” and failure to follow instructions regarding the completion of certain tasks. As a result of her documented poor work performance, Rutgers sent Russell a pre-termination letter and scheduled a conference for the following day. The next day, Russell was terminated. Russell sent a letter to Rutgers advising she was “fully prepared to have legal counsel represent [her] and [was] very prepared to go outside of Rutgers University regarding this case.” Rutgers investigated and found that no violation of their policies had occurred, and that there was no nexus between Russell’s alleged whistle-blowing complaints and her impending termination.
To prevail under her CEPA claim, Russell was required to prove four elements: (1) that she reasonably believed that the employer’s conduct was violating a law, rule, regulation, or a clear mandate of public policy; (2) that she engaged in “whistle-blowing” activity; (3) an adverse employment action was taken against her; and (4) her whistleblowing activity caused the adverse employment action.
If an employee establishes these elements, the employer must set forth a legitimate, non-retaliatory reason for the adverse conduct against the employee. The employee must then provide factual reasons why the employer’s proffered reason is pretextual.
In this case, the trial court found that Russell’s apparent “issues on the job” were the real reason for her termination. The court was persuaded by the various complaints against her, the timing of those complaints – both before and after her alleged whistle-blowing complaint – and the fact that Russell’s job performance did not improve even after she was informed of her performance deficiencies. Thus, Rutgers was entitled to summary judgment.
The Appellate Division affirmed the decision of the trial court and noted that although stripping an employee of her job responsibilities could constitute retaliation, in this case, Russell’s duties shifted, but she bore the same responsibility to ultimately approve the program budget as she did prior to her complaint. Although she testified that she “perceived” that her boss would make her job more difficult if she did not approve the budget, she could not identify anything that her boss did or said to that effect. According to the Appellate Division, this lack of specifics did not support Russell’s claim of retaliatory reduction in job responsibilities.
Not every action which makes an employee unhappy constitutes retaliation under CEPA. However, employers are reminded to document all workplace performance issues. Your documentation of performance issues will be critical in allowing a court to determine whether a termination was due to retaliation, or the employee’s poor performance. A termination that is warranted can still be misconstrued by an employee, and perceived as retaliatory by the courts, if the employer lacks sufficient documentation. Here, Rutgers persuaded the court through written complaints in the employee’s personnel file, despite performance reviews that the employee “met expectations.” In the end, Rutgers’ diligent documentation when the employment issues arose helped them to achieve a pre-trial win, and to avoid the cost of a protracted litigation.