Conscientious Employee Protection Act (CEPA)
Categories: Conscience Employee Protection Act
Plaintiff, a former police officer in the City of Vineland, filed a Complaint, alleging among other things, a violation of the Conscience Employee Protection Act, due to his complaining that the First Assistant Prosecutor in his County stalled an investigation by over editing search warrant affidavits and delaying responding to applications for warrants during the time he (Plaintiff) claimed a criminal defendant was “out there about to commit other crimes against the community” that could have been prevented had the FA not delayed the investigation. Plaintiff claimed the delay was concerning and should be reported to the Attorney General. Plaintiff also claimed that the FA instructed him to remove potentially exculpatory evidence from reports he had prepared. The Trial court denied Defendant’s motion for summary judgment. The Appellate Division reversed, finding that the Plaintiff failed to identify any “law, rule, regulation, statute or clear mandate of public policy that would have been violated by the First Assistant Prosecutor’s actions.
Zielinski v. City of Wildwood, et al
Categories: Fair Labor Standards Act
Plaintiff, a former police officer in the City of Wildwood filed suit after being terminated. Plaintiff claims he was termination was retaliatory because he threated to file suit for alleged workplace violations (not being paid for “muster time”). The City argued Plaintiff was fired for violating its work rules by failing to report to work on time despite numerous warning and prior disciplinary actions. United States Magistrate Judge Joel Schneider dismissed plaintiff’s complaint finding that plaintiff’s argument that he was engaged in protected activity when he reported late for work was flawed. Rather the Court found that while asserting that the obligation to report 15 minutes early was protected activity, flaunting the requirement to report 15 minutes early was not protective activity but was insubordination.
Integrity Staffing Solutions, Inc. v. Busk, et al
Categories: Fair Labor Standards Act, Portal-to-Portal Act
Supreme Court of the United States held that the time employees had to stand in line for post work security screening was not compensable under the FLSA, as they were not principal activities. Rather, the Court held that waiting in line for the security check was postliminary to the performance of their duties (filling boxes for Amazon orders) and as such, were exempted by the Portal-to-Portal amendment from FLSA liability.
Fiedor v. Township of Egg Harbor (Opinion)
Category: New Jersey Law Against Discrimination (NJLAD)
Conscientious Employee Protection Act (CEPA)
Terms: Hostile Work Environment; Adverse Employment Action; Disability; Interactive Process; Reasonable Accommodations
Summary: The Plaintiff filed suit against the Township of Egg Harbor asserting claims of violations of NJLAD and CEPA. The Plaintiff was the holder of a handicapped parking placard. The Business Administrator (BA) of the Township of Egg Harbor attempted to enforce a policy requiring employees at the municipal building to park in parking spots further away from the building, and the BA then moved a cluster of handicapped parking spots away from the building. The BA further advised the Plaintiff that, if she desired to park in the handicapped parking spots nearest the building, she would be required to submit a doctor’s note. The Plaintiff’s employment ceased shortly thereafter. The Superior Court of New Jersey, Atlantic County (Hon. Noah Bronkesh, J.S.C.), granted summary judgment in favor of the Township of Egg Harbor, finding that the BA’s action of requiring a doctor’s note prior to permitting an exception to the parking policy constituted an engagement in the interactive process of providing an accommodation to the Plaintiff. The Court further found that the Plaintiff failed to demonstrate a causal connection between any alleged adverse employment action and any alleged whistleblowing activity.
Austino v. City of Vineland, et. al.
Category: Civil Rights Act, Conscientious Employee Protection Act
Terms: First Amendment; Retaliation; Adverse Employment Action; Internal Affairs Investigation; Statute of Limitations
Summary: The Plaintiff, a Captain in the Vineland Police Department, filed a complaint on 2/4/20 in the US District Court against the City of Vineland as well as other city officials claiming a violation of his First Amendment rights under section 1983 and state violations of CEPA. The Plaintiff’s complaint contained numerous allegations, some dating back to 2012, relating to the exercise of plaintiff’s right to speak and to the subsequent retaliation by defendants. The Defendants filed a motion to dismiss for failure to state a claim arguing the Plaintiff’s claims were time barred by the statute of limitations. The Court determined that all of the specific allegations dating prior to 2/4/2018 were time barred by the statute of limitation. The remaining allegations were that he was retaliated against by not being promoted to chief of police and by an outside attorney being hired to conduct an internal affairs investigation against him. The Court dismissed these allegations as well because (1) the federal court is not the forum to adjudicate the merits of labor grievances, and (2) an internal investigation, in and or itself, does not qualify as adverse employment action for First Amendment purposes. The Court then declined to exercise supplemental jurisdiction over the Plaintiff’s remaining state law claims.
DiBuonaventura v. Washington Township, et. al. (Opinion)
Category: Conscientious Employee Protection Act (CEPA)
Terms: “Class of One”; Retaliation; Estoppel; Disciplinary Action; Equal Protection
Summary: The Plaintiff filed suit against Washington Township, the Police Chief, and the Township Administrator, asserting a violation of his right to equal protection, CEPA violations, and allegations of libel and slander and defamation. After filing his lawsuit in the Superior Court, the Plaintiff was subject to disciplinary proceedings, and the hearing officer found instances of misconduct and recommended termination. The Plaintiff appealed the decision to the Superior Court, and the decision was upheld. Defendants filed a Motion for Summary Judgement. Plaintiff’s equal protection claim was a “class of one” claim, and the Judge dismissed same in accordance with Enquist v. Oregon Dept. of Agriculture, holding the under the US Constitution public employees cannot being “class of one” equal protection claims. Plaintiff’s CEPA claims were also dismissed on summary judgment in accordance with Winters v. North Hudson Regional Fire & Rescue, wherein our Supreme Court held that collateral estoppel precluded a plaintiff who has unsuccessfully argued retaliation in a disciplinary proceeding from relitigating retaliation claims under CEPA.
Gary S. Demarzo, et. al. v. The City of Wildwood, et. al. (Opinion)
Category:
Conscientious Employee Protection Act (CEPA)
Terms:
Whistleblower; Employer retaliatory action; Administrative disciplinary hearing
Summary:
The Plaintiff filed a Complaint alleging violations of CEPA by his former employer, the City of Wildwood, and several individuals employed by the Wildwood Police Department. The Appellate Division affirmed the grant of Summary Judgment in favor of the Defendants by the Trial Judge in holding that a final disposition of Plaintiff’s claims of retaliation in defense of administrative disciplinary action against him precluded the Plaintiff from later litigating the same issue of retaliation in the Superior Court.