April 12, 2023

John E. Ursin and Franklin Barbosa, Jr. Win Whistleblower Case With Summary Judgment Decision

On April 10, 2023, Schenck Price attorneys John E. Ursin and Franklin Barbosa, Jr. obtained summary judgment in favor of a municipal client and several public officials resulting in the dismissal of a whistleblower complaint filed by the municipality’s employee. The Plaintiff, a municipal tax assessor, had filed suit based upon the New Jersey Conscientious Employee Protection Act (“CEPA”). Schenck Price’s victory helped its client avoid significant costs and the risk of liability associated with a CEPA jury trial.

The municipal employee’s complaint alleged that in 2008 she raised concerns about certain tax assessments and the involvement of elected officials. She alleged that thereafter, over the next 12 years, suffered retaliation in the form of a reduction in pay, diminishment of job responsibilities, and general ostracization by other municipal officials, culminating in an effort by officials to remove her from her position.

On a motion for summary judgment, Schenck Price argued that an employee shielded from retaliation through statutory protections – such as a tax assessor’s tenure – is not entitled to the whistleblower protections afforded under CEPA.  To buttress that argument, Schenck Price relied upon the State’s statutory scheme shielding tax assessors from retaliatory conduct, such as termination or reductions in pay.  Schenck Price also pointed to the record developed in discovery, which demonstrated, that the municipal employee was tenured and although she frequently raised a litany of complaints regarding a host of issues, there was no evidence of retaliation. 

Ultimately, the Court sided with Schenck Price and entered an order dismissing the municipal employee’s complaint in its entirety.  In the opinion, the Court wholly adopted Schenck Price’s argument that the municipal tax assessor is not the type of vulnerable employee that CEPA was intended to protect. This is an unusual, but legally sound basis for dismissing a CEPA complaint.  This novel and important ruling may be very useful to other government entities defending employee CEPA complaints.