Alan Schorr’s Case of The Week ending November 9, 2012

Tayoun v. Mooney, 2012 WL 5273855, Atlantic County, (App. Div. October 26, 2012)

The case of Tayoun v. Mooney was released on the same day as last week’s Case of the Week, A.D.P. v. Exxonmobil Research and Engineering Co., and was decided by the same Appellate judges. Ironically, while the A.D.P. case was strongly in favor of protection of rights under the New Jersey Law Against Discrimination, the same panel, on the same day, released this opinion which continues the recent evisceration of the New Jersey Conscientious Employee Protection Act. The continuing assault by the Appellate Division upon the CEPA follows the general principle that if reporting unlawful or fraudulent activity is a part of one’s job duties, then an employee is not protected for making the complaint.

I discussed the recent history regarding this line of cases in my Case of the Week blog for August 3, 2012, a New York case, Griffin v. City of New York, where the Eastern District of New York protected the rights of employees making such complaints.

David Tayoun was the Director of Atlantic City’s Neighborhood Services Department, which was in charge of various Divisions, such as Code Enforcement, Construction and Landlord/Tenant. Tayoun had made complaints of unlawful behavior including requesting the termination of a field inspector for soliciting bribes, another field inspector for unethical conduct, and the chief inspector for “covering up” the “alleged derelictions” of those he supervised. He also complained about certain management personnel drinking and being intoxicated on the job and made numerous complaints about the poor performance of his subordinates. He was thereafter terminated without notice or warning and filed a CEPA claim against the City. He also filed a Civil Rights Act claim, which will be discussed below. Both claims were dismissed on summary judgment by the Atlantic County Court, and Plaintiff appealed.

The Appellate Division never addressed in its opinion whether the termination was connected in any way to the complaints, and never addressed the balance of the prima facie case, pretext, because the panel held that the Plaintiff had not engaged in protected activity because the complaints that he made were within the ambit of his job duties. In that aspect, this case is quite similar to White v. Starbucks, 2011 WL 6111882 (App .Div. 2011), cert. denied, 210 N.J. 108 (2012) (unpublished). (See Case of the Week, August 3, 2012). In this case, however, the Court went further, basically creating a blanket rule that an employee is not protected for complaining the unlawful actions of his subordinates, since reporting unlawful activities of subordinates would ordinary come under the ambit of a manager’s job duties.

This holding is inconsistent with the large body of CEPA cases which have expanded the protection of CEPA since its enactment in 1986. Furthermore, the blanket rule defies common sense and public policy. The whole purpose of having a law that protects “conscientious employees” is that no employee should be retaliated against for reporting unlawful activities because we want to encourage employees to be conscientious about reporting such activities. If we strip protection from managers who report the criminal activities of their subordinates, then we are encouraging those managers to cover up such activities because they could be fired with impunity for making such a report.

The New Jersey Supreme Court has carefully explained why such whistleblowers must be protected by CEPA:

Misconduct of employees, like that of employers, can threaten the public health, safety, and welfare. . . .Sometimes, moreover, only an employee can bring a coemployee’s wrongdoing to the attention of the employer or a public agency. If left unprotected, employees who otherwise would complain about a co-employee might hesitate to come forward out of fear of retribution. A vindictive employer could resent disruption in the workplace or the disclosure of improper practices within the organization. In this context, “reporting a fellow employee’s violation . . . is not so different from traditional notions of whistle-blowing.” Higgins v. Pascack Valley Hospital, 158 N.J. 404, 421 (1999).

The Tayoun case is now the third Appellate Division case in the past year to disregard the clear intent of CEPA. The dangers of leaving whistleblowers unprotected are clear. Our society is not going to benefit from a law that rewards managers who cover up unlawful activities in order to protect their jobs and protects employers who retaliate against those managers who are conscientious. It is my understanding that Mr. Tayoun’s attorney will be petitioning for Certification to the New Jersey Supreme Court, and hopefully the Supreme Court will finally step in to clarify the important public policies underpinning New Jersey’s whistleblower protection statute.

The Court also affirmed the dismissal of the plaintiff’s Civil Rights Claim. I have repeatedly stressed that Courts have been consistently throwing out NJCRA claims that alleged violation of substantive due process for the property right of employment lost. In this case, the Court also found that the Civil Rights Act claim was more appropriately a claim of procedural due process violation, which is not protected by the NJCRA. The better strategy is to claim retaliation for exercising First Amendment Rights. See, e.g. Stomel v. City of Camden, 192 N.J. 137 (2007).

Finally, the Plaintiff appealed the denial of a motion for recusal of the trial judge, Nelson C. Johnson, because of an allegedly biased writing that Judge Johnson had made in another case in which he stated, “[i]n Atlantic City, employment lawsuits are the continuation of politics by other means” and characterized such suits as a “plague on the body politic….” The Court rejected that appeal as not having sufficient merit to warrant a written opinion.

It seems that CEPA is not a favored tort these days with the Appellate Division. Judging by this one panel’s disparate treatment of an LAD claim and a CEPA claim on the same day, the Supreme Court will need to step in soon or else our whistleblower protection law will become ineffective.

Plaintiff’s counsel: Clifford L. Van Syoc, Sebastian Ionno and D. Rebecca Higbee, Van Syoc Chartered

Defendant’s counsel: Tracy L. Riley, Riley & Riley

Trial Court Judge: Nelson C. Johnson, J.S.C.

Appellate Judges: Yannotti, Espinosa, and Kennedy.