Alan Schorr’s Case of The Week ending August 3, 2012

Griffin v. City of New York, 1:10-cv-02592, 2012 WL 3090295 (E.D.N.Y., July 31, 2012)

This week’s Case of the Week is a Federal case out of the Eastern District Court of New York, Griffin v. City of New York. The case is important because it distinguishes itself from the line of Federal cases following Garcetti v. Ceballos, 547 U.S. 410 (2006). These cases hold that a public employee cannot be protected for whistleblowing if the matters complained of were part of the plaintiff’s job duties, and therefore not technically “blowing the whistle”. While Garcetti only applied to public employees and should have been limited to its facts (Garcetti was a calendar deputy who alleged retaliation after he wrote a “disposition memo” which was part of his regular duties), our New Jersey Courts have begun to follow that reasoning, and have even applied it to private employees.

The New Jersey cases that have addressed this legal issue have relied primarily on the facts of each case. In Massarano v. New Jersey Transit, 400 N.J.Super. 474 (App. Div. 2008), a CEPA case, Barbara Massarano, Security Manager, and public employee, made a report in which she noted that a set of blueprints had been discarded on a loading dock. She alleged she was terminated directly in retaliation for the report. The Appellate Division held that the discarding of the blueprints did not violate a law, regulation, or public policy, and therefore denied CEPA. But then the Appellate Division took a giant leap, without citing any authority whatsoever other than the trial court’s dismissal, and held that there was no whistleblowing because Ms. Massarano was just doing her job when she made the report. Because there was no authority cited, and because the case was decided on other grounds, I have always considered this part of the opinion to be dicta. But defense counsel have cleverly latched upon this decision and have been successfully getting cases dismissed where an employee’s complaints have been a part of his or her job duties.

In White v. Starbucks Corp., 2011 WL 6111882 (App .Div. 2011), cert. denied, 210 N.J. 108 (2012) (unpublished), the Court took a giant leap from Massarano, and held that private employees could also be denied CEPA protection if a complaint of unlawful activity arose as part of an employee’s job duties. Relying solely upon the dicta in Massarano, the Court held that Kari White, a District Manager for Starbucks, was not a whistleblower because reporting violations of laws and regulations was part of her job duties as a District manager. Since the White decision, defense counsel have been arguing at the trial level, with moderate success, that if an employer adopts a policy requiring all employees to report anything unlawful, then no employee can be a whistleblower, since reporting illegal activities is a part of their job duties. Of course, such a broad edict would eviscerate CEPA. The Griffin case is our Case of the Week, because it addresses that precise issue.

While Griffin is a Federal Civil Rights case and not a NJ CEPA case, its holding is applicable to whistleblowing cases under both CEPA and NJCRA. Directly addressing the defendants’ argument that a provision in a manual requiring officers to report corruption and therefore is part of the job duties, Judge Dearie wrote, at *10:

If the Court were to accept defendants’ expansive theory of the “official duties” of police officers based upon the mere existence of Section 207–21, irrespective of its compulsory language, it “would effectively curtail all [NYPD officers’] right[ ] to speak out about corruption, thereby discouraging whistleblower activity that is of great benefit to civil society.” Tucker [v. City of New York], 2011 WL 2893077 at *6, n. 4 (rejecting argument that applicable citywide policy, which “affirmatively obligates all city employees to report corruption, criminal activity, or conflicts of interest … establishes [the employee’s] official duty … and thus deprives … First Amendment protection for whistleblowing.”).

This opinion cites several other very cogent reasons that will support New Jersey plaintiffs’ arguments as to why the unpublished decision in White v. Starbucks should be strictly limited to its facts.

There are many New Jersey opinions that hold the opposite of White v. Starbucks, which should, at this point, be considered an anomaly. The amicus brief filed by NELA-NJ, which was brilliantly authored by Bennet D. Zurofsky and Andrew Dwyer provides a road map of how to oppose future motions based upon Garcetti, Massarano, and/or White, and I have posted the brief here for my readers. This new case from the Eastern District of New York, however, is very persuasively written, and will assist plaintiffs in defending such motions, especially in NJCRA cases. Be aware, however, that this case also follows the current trend of holding that the termination of public employment cannot constitute a violation of substantive due process. (See last week’s blog post).

Plaintiff’s counsel: Guy William Germano, Michael J. Borrelli, Alexander T. Coleman, Borrelli & Associates, P.C., Carle Place, NY.

Defendants’ counsel: Andrea Mary O’Connor, New York City Law Department, Daniel Chiu, Michael A. Cardozo Corporation Counsel of the City of New York

Judge: Hon. Raymond J. Dearie