New Jersey Employment Lawyer Blog
A recent unpublished opinion from New Jersey’s Appellate Division overturned a trial court decision dismissing his whistleblower claim under the Conscientious Employee Protection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.
Around the same time, Mr. Silvestri refused to make a large number of changes to Ridgefield’s time and attendance records for numerous employees. As he explained to the Borough Manager, he was unwilling to do so because nobody provided him an explanation or justification for the changes. Mr. Silvestri testified that he believed those changes, which were being made after the payroll had been certified, constituted a fraud on the Borough’s taxpayers.
After Mr. Silvestri refused to change the time and attendance records, Councilman Acosta indicated he wanted to have the IT department audited. Ridgefield then had an outside company conduct an audit, supposedly due to concerns about rising costs, budget shortfalls, and Mr. Silvestri’s refusal to implement new technologies. The audit recommended Ridgefield outsource its IT service to save money. Ridgefield then outsourced its entire IT department, which resulted in it terminating Mr. Silvestri’s employment.
Mr. Silvestri then filed a lawsuit in which he alleges Ridgefield’s decision to stop compensating him for his overtime hours and to outsource its IT department were retaliation in violation of CEPA.
However, the trial court granted the Ridgefield’s motion for summary judgment and dismissed Mr. Silvestri’s case, finding he did not have evidence of a “causal connection” between reporting the crime of tampering with the Lightning Alert System and Ridgefield’s decision to eliminate his job. Instead, it found the decision to eliminate the IT department was for budgetary and efficiency reasons. The trial court also ruled that Mr Silvestri’s refusal to make adjustments to the Borrough’s time and attendance records was not protected by CEPA on the basis that those changes were intended to ensure the timesheets were accurate, and Mr. Silvestri refused to change them merely as a result of his “growing discontent” with the way the Borough was treating him. Mr. Silvestri appealed.
On May 22, 2024, in Silvestri v. Borough of Ridgefield, the Appellate Division reversed the decision dismissing his case, finding there are facts sufficient to support the conclusion that Ridgefield retaliated against him in violation of CEPA. Specifically, it found the timing between him reporting the tampering with the Lightning Alert System and attending court relating to that matter, and Councilman Acosta requesting an audit of the IT Department that led to the Borrough eliminating his job shortly thereafter, is enough for a jury to find that decision was retaliatory, especially since Mr. Silvestri has an unblemished performance record.
The Appellate Division also reversed the trial court’s decision regarding Mr. Silvestri’s refusal to change Ridgefield’s time and attendance records, finding the evidence allows a jury to reach the conclusion that he engaged in a legally-protected activity when he refused to do so.