Retaliation

Teacher’s Objection to Inadequate Discipline of Student for Threatening Violence Can be Protected by CEPA

November 12, 2024 | by Jonathan I. Nirenberg

In a recent unpublished opinion, New Jersey’s Appellate Division found a teacher’s objection that his school did not sufficiently discipline a student for threatening to shoot another student could be protected from retaliation by the Conscientious Employee Protection Act (“CEPA”).

CEPA is a broad New Jersey whistleblower law that prohibits employers from retaliating against an employee for, among other things, objecting to an activity or practice of the employer that the employee reasonably believes violates a law, a rule promulgated pursuant to law, or is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.

Phillip Eisenstein is a physical education teacher for the New York Avenue School in Atlantic City. He witnessed a student, K.D., bullying other students. After Mr. Eisenstein intervened, K.D. threatened to get his uncle’s gun and come back the next day to shoot one of the other students. Mr. Eisenstein reported this to the school’s principal, who said he would handle it.

Court Recognizes New Jersey Law Against Discrimination’s Broad Definition of Disability

August 1, 2024 | by Jonathan I. Nirenberg

In a recent unpublished decision, New Jersey’s Appellate Division make it clear that an employee does not have to have a severe or permanent impairment to have a viable disability discrimination to be protected by the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Bart Algozzini, who worked for DGMB Casino, LLC doing business as Resorts Casino Hotel (“Resorts”) as its Director of Slot Operations. Mr. Algozzini took a medical leave after he suffered second and third-degree burns over seventy percent of his body after his boat exploded. He was hospitalized for a month, during which he was placed in a medically-induced coma for more than two weeks. After leaving the hospital, he was in a rehab facility for a week-and-a-half, followed by over three months of outpatient physical therapy sessions.

While Mr. Algozzini was on his medical leave, Resorts eliminated his position as the Director of Slot Operations and instead created two new positions: Slot Service Manager and Slot Technical Manager. Resorts gave Mr. Algozzini the position of Slot Service Manager, a job with fewer responsibilities and that paid $23,000 less per year than his former position as its Director of Slot Operations. Resorts did not eliminate any other positions at that time.

Timing Between Protected Activity and Adverse Employment Action Supports Whistleblower Claim

June 4, 2024 | by Jonathan I. Nirenberg

A recent unpublished opinion from New Jersey’s Appellate Division overturned a trial court decision dismissing his whistleblower claim under the Conscientious Employee Protection Act (“CEPA”). The case serves as a reminder that close timing between a legally-protected activity and an adverse employment action can be powerful evidence to support a retaliation claim.

Joseph Silvestri was the Director of Information Technology (“IT”) for the Borough of Ridgefield. When he discovered that someone had tampered with the Lightning Alert System at Willis Park, he reported it to the Ridgefield Police Department. Paul Schaeffer, who is friends with a Ridgefield Councilman, Javier Acosta, was charged with tampering with the Lightning Alert System. Mr. Silvestri subsequently was subpoenaed to testify in Mr. Schaeffer’s municipal court case, and was present in court for the trial, but did not actually end up testifying.

Shortly thereafter, the Ridgefield Council President, Russell Castelli, told Mr. Silvestri that he is not entitled to receive overtime compensation because he is the head of the IT Department. Until then, Mr. Silvestri had been eligible to receive overtime compensation for approximately 20 years. According to Mr. Silvesti, Councilman Acosta caused Ridgefield to stop compensating him for his overtime.

Gerber Must Bring Witness to New Jersey to Testify in Discrimination Lawsuit

January 8, 2024 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division affirms a trial court’s order requiring Gerber Products Company to bring a witness from Switzerland to New Jersey, at Gerber’s expense, to testify at a deposition in a discrimination lawsuit. A deposition is a formal interview under oath used to obtain testimony from witnesses in lawsuits.

Denise Willson is a former Vice President of Medical Sales North America for Nestlé Infant Nutrition. Ms. Willson sued Gerber Products Company, Nestlé Healthcare Nutrition, Inc., Nestlé Holdings, Inc., and Gerber’s President and CEO, William Partyka, alleging they discriminated against her because of her age and gender. More specifically, she claims they fostered a “boys club” culture, paid her less than her younger male peers, denied her a promotion to the position of general manager, and ultimately fired her in retaliation for her complaints about the discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

As part of her lawsuit, Ms. Willson alleges she spoke to Mr. Partyka’s supervisor, Alexandre Costa, about the retaliatory termination, gender discrimination and Gerber’s failure to promote her. When Ms. Willson’s lawyers sought to take Mr. Costa’s deposition, the defendants objected. They argued that Mr. Costa lives in Switzerland, claims his meeting with Ms. Wilsson was about sales rather than her allegations of discrimination and retaliation, denies he was involved in the decision to terminate her employment or has any other information pertinent to her case, and that requiring him to come to New Jersey for his deposition supposedly would “create a tremendous burden on [his] business.” The defendants also argued that neither Mr. Costa nor his employer, Nestlé Enterprises S.A., is a party to the lawsuit.

Court Reinstates Employee’s Retaliation Lawsuit, Finding Employer Could Have Identified Her as Anonymous Whistleblower

October 23, 2023 | by Jonathan I. Nirenberg

A new decision from New Jersey’s Appellate Division recognizes that an employer can be liable for retaliating against an employee who filed an anonymous whistleblower complaint if the evidence supports the inference that it could have realized she was the one who filed the complaint.

For 14 years, Carol Smith worked for Konica Minolta Business Solutions (“KMBS”), primarily as a sales representative. In 2018, Ms. Smith reported to her supervisors that over a million dollars of equipment had been shipped to a warehouse, and KMBS had recorded it as installed and paid employees a commission for selling that equipment, but the equipment actually remained in the warehouse and KMBS was improperly using it as collateral for bank loans.

Ms. Smith’s supervisors failed to address her complaint, and instead began harassing her. Accordingly, she eventually reported the fraudulent activity anonymously, through KMBS’ employee whistleblower hotline.

Resigning to Avoid Participating in Illegal Activity Can Be Protected Under CEPA

August 1, 2023 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division decision recognizes that, under the right circumstances an employee can be protected by the Conscientious Employee Protection Act (“CEPA”) when she resigns because she is not willing to participate in her employer’s illegal conduct. CEPA is New Jersey’s whistleblower law, which many courts have described to be the broadest such law in the nation.

Hope Moser worked for the Streamwood Company as the assistant property manager at the Madison Court apartments. Her immediate supervisor, Scott Leonard, was Streamwood’s regional manager and the son of Streamwood’s owner.

In January 2021, Mr. Leonard told Ms. Moser that she should check “no” on all housing screening forms in response to the question whether the form was being completed as a Section 8 housing application. Ms. Moster objected because she believed doing so would violate the New Jersey Law Against Discrimination (“LAD”), which prohibits housing discrimination against prospective Section 8 tenants.

Court Reinstates Lawsuit Alleging Employer Searched Cellphone to Seek Justification to Fire Employee

January 10, 2023 | by Jonathan I. Nirenberg

A recent decision by the Third Circuit Court of Appeals allows an employee to proceed with his retaliation claim based on evidence suggesting his employer’s decision to search his cellphone was an excuse to try to find support to fire him in retaliation for asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the Family & Medical Leave Act (“FMLA”).

Joseph Canada is Black and suffers from serious back problems including herniated discs and arthritis. He worked for Samuel Grossi and Sons, Inc. for 10 years. Mr. Canada claims Grossi’s management prevented him from accessing FMLA leave forms, and harassed him when he tried to take time off for his back issues. He eventually obtained the forms on his own, and took FMLA leave.

In March 2019, Grossi had a temporary layoff during which it laid off Mr. Canada for a day. In response, Mr. Canada filed a claim of race and disability discrimination with the United States Equal Opportunity Commission (“EEOC”). In June 2019, Mr. Canada filed a discrimination and retaliation lawsuit against Grossi under Title VII, the ADA and the FMLA.

Rutgers Women’s Basketball Players Win Appeal in Discrimination Lawsuit

June 23, 2022 | by Jonathan I. Nirenberg

A recent ruling from New Jersey’s Appellate Division allows members of the Rutger’s women’s basketball team to continue with their lawsuit under the New Jersey Law Against Discrimination (“LAD”).

Sharee Gordon, Adayshia McKinnon, Jade Howard, Arianna Williams and Sarah Schwartz were students at Rutgers-Newark University and members of the women’s basketball team. Gordon, Howard and Williams each identify themselves as African-American lesbians; McKinnon identifies as Black and bisexual; and Schwartz identifies as Hispanic and heterosexual.

During the 2014-15 school year, the team’s head coach, Kevin Morris, was on a medical leave. When Gordon learned Rutgers was considering naming William Zasowski as the interim head coach, she raised concerns that he had used discriminatory language to refer to members of the men’s basketball team when he was its assistant coach. Specifically, she alleged he referred to members of the men’s team as “p*ssies,” “b*tches,” and “retard[s]” and asked if they were on their “period.” Rutgers nonetheless selected Zasowski as the interim head coach.

Non-Disparagement Clauses Do Not Violate New Jersey Law Against Discrimination

June 6, 2022 | by Jonathan I. Nirenberg

Last week, in Savage v. Township of Neptune, the Appellate Division ruled that a 2019 amendment to the New Jersey Law Against Discrimination (“LAD”) does not prohibit parties from entering into non-disparagement clauses.

The Appellate Division’s opinion involved Christine Savage, a Sergeant for the Township of Neptune Police Department. Sgt. Savage brought an employment discrimination case against Neptune, Police Director Michael J. Bascom, Police Chief James M. Hunt, in which she alleged they engaged in sexual discrimination, harassment, and retaliation in violation of the LAD, the New Jersey Civil Rights Act (“NJCRA”), and the free speech provision of the New Jersey Constitution.

Sgt. Savage eventually settled her case. The settlement agreement included a mutual non-disparagement provision which prevented the parties from making any statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”

Employer Can Fire Employee it Honestly Believes Abused FMLA Leave

May 4, 2022 | by Jonathan I. Nirenberg

A recent unpublished decision from the Third Circuit concludes that an employer can fire an employee because it honestly believes she abused her Family & Medical Leave Act (“FMLA”) leave.

Marsha VanHook worked as a patient representative for Cooper Health System for approximately nine years. One of her sons has attention deficit hyperactivity disorder (“ADHD”), severe oppositional defiance disorder, chronic depression, and anxiety.

For many years, Cooper allowed Ms. VanHook to take an intermittent FMLA leave to care for her son when he was not in school or supervised by someone else. However, Ms. VanHook’s supervisor eventually heard from another employee that Ms. VanHook might be using her FMLA leave inappropriately. In addition, Cooper’s Human Resources Department heard that Ms. VanHook was often using her FMLA Leave immediately before a weekend or another day off, which raised suspicion.