In my last blog I discussed a public employment case involving a corrections officer employed at Fort Dix. He claimed employment retaliation because of a complaint he brought against his supervisors at the prison.
Now I conclude the blog with how the case was decided by the court. If you haven’t already, I invite you to read (or re-read) Blog 1, posted earlier.
Can a workplace manual support a CEPA claim?
In this case the DOC manual explicitly stated it was “adopted in accordance with the provisions of N.J.S.A. 30:1B-6,” which require the DOC commissioner to “[f]ormulate, adopt, issue and promulgate, in the name of the department such rules and regulations for the efficient conduct of the work and general administration of the department, the institutions or noninstitutional agencies within its jurisdiction, its officers and employees as may be authorized by law.” N.J.S.A. 30:1B-6(e).
Additionally, pursuant to N.J.S.A. 30:1B-6(f), the DOC commissioner shall [d]etermine all matters of policy and regulate the administration of the institutions or noninstitutional agencies within its jurisdiction.” As the DOC Commissioner promulgated the DOC manual pursuant to this authority, it constitutes “a rule or regulation promulgated pursuant to law” under CEPA’s plain language. See N.J.S.A. 34:19-3(a)(1) and (c)(1).
The DOC argued plaintiff could not ground his claims on violations of the manual because it is not a “statute[] enacted by the Legislature, Court Rule[] promulgated by the Supreme Court, or regulation[] with the New Jersey Administrative Code.” This position was rejected. (“[A] professional code of ethics governing an employer’s activities may constitute authority for purposes of N.J.S.A. 34:19-3(a)(1), (c)(1) and (c)(3) in an appropriate setting.”).
Here the correction officer reported the alleged violations of the manual, he performed a ‘whistle-blowing’ activity described in N.J.S.A. 34:19-3(c). “[W]histle-blowing” activity “refers to notification, or threatened notification, to an outside agency or supervisor…and also permits a claim to be supported by evidence that the employee objected to or refused to participate in the employer’s conduct.”
The third prong of a CEPA claim, plaintiff must demonstrate that he was subject to a “retaliatory action,” which “means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e). “Terms and conditions of employment ‘refer[] to those matters which are the essence of the employment relationship,’ and include further serious intrusions into the employment relationship beyond those solely about compensation and rank.”
The phrase encompasses “length of the workday, increase or decrease of salaries, hours, and fringe benefits, physical arrangements and facilities, and promotional procedures.” Additionally, retaliation under CEPA need not be a single discrete action, but rather, can include “many separate…relatively minor instances of behavior directed against an employee that may not be actionable individually but…combine to make up a pattern of retaliatory conduct.”
In this case the employee alleged a pattern of retaliatory behavior, which included publicly reprimanding him, subjecting him to reporting procedures inconsistent with regular institutional practices, and ultimately discontinuing all communications with him. Plaintiff also specifically claimed he was denied or limited in his promotional opportunities, precluded from overtime work, impacted his salary, and forced him to accept a position at a different facility. In this case the court was satisfied that plaintiff provided sufficient evidence to allow the case to go to trial. Of course, the outcome doesn’t mean the officer will be compensated, it only means he has the right for a jury to hear and decide his case.
To discuss your NJ public employment law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Public Employment Law Attorney