A crucial element in proving a claim brought under the New Jersey’s Conscientious Employee Protection Act (CEPA) is establishing a causal connection between the whistleblowing activity and the alleged resulting an adverse employment action (e.g., termination, suspension, demotion, denial of promotion, transfer, cut in pay, hostile work environment, etc.). In the recent New Jersey Appellate Division case, Ugarte v. Barnabas Health Med. Grp. PC, 2024 N.J. Super. Unpub. LEXIS 240 (App. Div. Feb. 16, 2024), the significance of this causal nexus was underscored.
In Ugarte, the plaintiff complained to her supervisor that several employees brought HIPAA protected patient charts home. Plaintiff alleged in her Complaint that her employment was eventually terminated in retaliation for her reporting HIPAA violations to her supervisor earlier in the year. However, discovery revealed that plaintiff got into a serious altercation with a subordinate. Numerous witnesses testified during discovery that the plaintiff was antagonistic towards the subordinate and did nothing as a supervisor to deescalate the conflict. The plaintiff’s supervisor witnessed the altercation and tried to intercede, before instructing another employee to call the police. Plaintiff was placed on paid leave and the plaintiff’s supervisor recommended the plaintiff be transferred. The defendant/employer alleged this altercation led to the termination of plaintiff’s employment. Notably, the individuals who made the decision to terminate the plaintiff testified to not having knowledge of her HIPAA violation complaints until after the plaintiff was terminated. Moreover, the supervisor who was the subject of plaintiff’s HIPPA violations apparently did not make the decision to terminate her, nor did the supervisor recommend for her to be terminated. Following the close of discovery the court granted a motion for summary judgment brought by the employer/defendant finding as a matter of law insufficient evidence of a causal connection between the alleged whistleblowing and the plaintiff’s employment being terminated.
CEPA aims to protect whistleblowers from retaliation by their employers. To establish a prima facie case under CEPA, an employee must demonstrate: (1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy, (2) he or she performed a “whistle-blowing” activity described in N.J.S.A 34:19-3(c), (3) an adverse employment action as taken against him or her, and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. .” Dzwonar v. McDevitt, 177 N.J. 451, 461, 828 A.2d 893 (2003), 177 N.J. at 462 (quoting Kolb v. Burns, 320 N.J. Super. 467, 478, 727 A.2d 525 (App. Div. 1999). The fourth element, the causal connection, is critical. It requires plaintiffs to establish that their whistleblowing activity was a motivating factor behind the adverse employment action.
In Ugarte, the plaintiff argued to the Appellate Division that she was terminated in retaliation for making complaints regarding HIPAA violations. To prove the causal connection between plaintiff’s HIPAA violation complaints and her termination, the plaintiff argued that the alleged non-retaliatory reason for the plaintiff’s termination, i.e., her altercation with the subordinate employee, was merely pretext and not the true reason for the termination. In doing so, the plaintiff alleged the “cat’s paw” theory, where a plaintiff can be successful in proving a casual nexus of retaliation under CEPA if they can show the decision maker was influenced by another individual with retaliatory motives. However, the Appellate Division held that the plaintiff failed to provide sufficient evidence to support this claim. According to the Appellate Division the defendant supervisor’s recommendation for plaintiff to be transferred was not based on the plaintiff’s whistleblowing activity. Rather, it stemmed from the altercation between plaintiff and the subordinate, where plaintiff, as a supervisor, failed to deescalate the situation. The Appellate Division concluded the plaintiff’s failure to handle the altercation appropriately was the primary reason for the adverse employment action. Moreover, there was no evidence indicating that the defendant supervisor’s recommendation was influenced by plaintiff’s whistleblowing activity. Indeed, the plaintiff did not argue that she was terminated because of the decision makers’ retaliatory animus.
Ugarte highlights the importance of establishing a clear causal nexus in CEPA claims. Mere allegations of retaliation are insufficient when the employer has a compelling non-retaliatory reason for the adverse employment action. Therefore, plaintiffs should be prepared to provide compelling evidence linking their whistleblowing activity to the alleged adverse employment action. Without a strong causal connection, plaintiffs risk their cases being dismissed at the close of discovery.
Do not hesitate to call the attorneys at Mashel Law at (732) 536-6161 or fill out the contact form on this page for immediate help if your employer retaliates against you for disclosing or objecting to activities you reasonably believe violate the law, are fraudulent and/or are contrary to public health and safety. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.