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Monday, May 23, 2022

NJ Whistleblower Attorney, Whistleblower Employee Disclosing Illegal Acts to Supervisor

Can an employer terminate an employee for "insubordination" for failing to follow the employer's designated chain-of-command structure for making workplace complaints about unethical or illegal activity? In some situations, the answer is, “Yes.”

The NJ Supreme Court in Fleming v. Corr. Healthcare Solutions, Inc., decided the issue of whether an employer could dictate to its employees the manner in which complaints of illegal workplace conduct could be made under the Conscientious Employee Protection Act, (CEPA) N.J. Stat. Ann. § 34:19-1-8. A chain-of-command defense might be raised as a valid legal nondiscriminatory reason for an employee's firing, that, like any other defense would have to be resolved by a factfinder.

As a backdrop to this issue, under NJ’s employee whistleblower statute, CEPA, Sections a) and c) of N.J.S.A. 34:19-3 states in part  the type of retaliatory action against employee whistleblowing that is prohibited:

“An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law,.....; or

(2) is fraudulent or criminal..."

Thus, CEPA grants to employees the right to submit complaints of illegal or unethical workplace conduct to any individual defined as a "supervisor" within the statute.

Under the definitions section of CEPA, “supervisor” broadly defined in N.J.S.A. 34:19-2(d).

§ 34:19-2 (d). Definitions,  "supervisor" is defined as:

Supervisor” means any individual with an employer’s organization who has the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer so per person to bring such complaints on the notice required under section 7 [C.34:19-7] of this act.

[Note: § 34:19-7 states the requirements for employer’s posting of notices for distribution to all employees, written or electronic notices of its employees’ protections, obligations, rights and procedures under this act, and .... and The notice shall include the name of the person or persons the employer has designated to receive written notifications.]

In a case involving CEPA, Fleming v. Corr. Healthcare Solutions, Inc., the primary question before the NJ Supreme Court, was whether an employer can terminate an employee for "insubordination" for failing to follow the employer's chain-of-command structure for making workplace complaints about perceived unethical or illegal activity.

In Fleming, after the defendant healthcare company took over medical services at a prison, the nurse Fleming, plaintiff, observed that medical services and medications were being provided to inmates in a manner not in compliance with the law. Plaintiff complained to her defendant boss and then reported the problem under the Conscientious Employee Protection Act (CEPA), N.J. Stat. Ann. § 34:19-1-8. The nurse was subsequently terminated from her employment. The nurse filed suit, and the trial court found that her whistle-blowing was not protected activity. The Appellate Division agreed with the trial court and held that Fleming did not produce sufficient evidence to establish that her firing was due to her complaints about CHS's violations, and was not due to her refusal to follow instructions from Miers regarding the submission of her complaints according to the employer’s the chain-of-command and because of a refusal to follow orders in the dispensing of medication. The Supreme Court granted Fleming's petition for certification, primarily to consider the chain-of-command issue. The NJ Supreme court reversed and remanded, holding that a jury could have inferred that the employer’s negative evaluation of her was a pretext designed to cover up illegal retaliation against her for complaining and reporting on the employer’s illegal practices.

The facts were as follows: The employee, Fleming,  worked as a nurse at a prison for women. At the time of the nurse’s termination, the Department of Corrections had "privatized" medical services at the prison and hired an outside corporation, Correctional Healthcare Solutions, Inc. (CHS), to deliver those services. CHS thus became the nurse’s employer. The nurse’s immediate supervisor was Ms. Simpson. Above Simpson in the nursing chain-of-command was Ms. Miers.

In the spring of 1996, the nurse began complaining to Simpson that she had noticed that medical services and medications were being provided to prisoners who had not completed the required co-payment form and thus were not charged the required co-payment. Simpson and Miers acknowledged that Fleming made these complaints and they acknowledged that the co-payment forms often were not completed. In addition, the nurse complained to Simpson that CHS employees were providing medications to prisoners.

The nurse sent a letter on July 2, 1996 to Mr. Moore, the Director of the Medical Department at the prison for CHS, complaining about the violations she had observed. The next day Miers returned the letter to the nurse with a handwritten note attached telling her that the letter first should go to Simpson, who then should take it to Miers, who in turn would take it to Moore.

On July 5, 1996, the nurse sent Miers a letter setting forth the identical complaints made in her July 2 letter to Moore. The nurse stated that although she was instructed to send the letter to Simpson first, she did not do so because she believed she should bring the problems to the attention of the highest person in command because her prior oral complaints to Simpson had not produced results.

One week later, Miers fired Fleming, telling her that the July 5 letter was the "most important thing" and that she had failed to follow the chain-of-command. Miers said the nurse’s conduct constituted willful disobedience and that she was terminated. Miers also told the nurse for the first time, that the nurse had received a negative performance review from Simpson.

In the litigation, the nurse asserted that her termination violated CEPA because it was in retaliation for her submission of complaints of illegal workplace conduct. CHS contended that it fired her for insubordination in reporting misconduct to a higher-up and her refusal to follow direct orders. The nurse argued that CEPA permits employees to submit complaints to any person who falls within CEPA's definition of "supervisor."

On a motion for summary judgment, the trial court found that the nurse had presented evidence from which a jury could find that her belief that illegal conduct was occurring was objectively reasonable, but found that her whistle-blowing was not protected activity. The Appellate Division agreed with the lower court, the trial court, and held that Fleming did not produce sufficient evidence to establish that her firing was due to her complaints about CHS's violations, and was not due to her refusal to follow instructions from Miers regarding the submission of her complaints according to the employer’s the chain-of-command and because of a refusal to follow orders in the dispensing of medication. The Supreme Court granted the nurse’s petition for certification, primarily to consider the chain-of-command issue.

The NJ Supreme Court stated that a chain-of-command defense may be used by an employer as a valid nondiscriminatory reason for an employee's firing. However, the court also stated that  permitting violation of a chain-of-command in reporting illegal or unethical workplace activity to justify discipline of an employee undermines the intent of the Legislature in passing CEPA, and that in this particular matter, it cannot be automatically relied on to justify the nurse’s termination.

The NJ Supreme Court found sufficient evidence in this matter that a jury in the lower trial Court could possibly infer that Simpson's negative evaluation of the nurse was a pretext designed to cover up CHS's retaliation against her for reporting the illegal practices. However, in order to prevail ultimately, the nurse must prove that CHS was motivated by a retaliatory intent when it terminated  her. Therefore, the NJ Supreme Court reversed the judgment of the Appellate Division and remanded the case back to the trial court.

CAUTION: This does not mean that an employer may not legally terminate an employee, even a whistleblower, who is unreasonable in expressing his or her complaints.

The NJ Supreme Court stated in its opinion that the term “supervisor’ is broadly defined in the CEPA statute and stated:

“It includes, among others, Miers, to whom Fleming submitted her complaint in early July 1996.

CHS has no right to limit CEPA's definition of "supervisor" by mandating that its employees submit CEPA complaints to their immediate supervisor. Certainly, it could not punish Fleming for submitting her protected complaints to Miers, an individual who fell within CEPA's definition of "supervisor."

This does not mean that an employer may not fire an employee, even a whistleblower, who is unreasonable in expressing his or her complaints. For example, a state employee who repeatedly called the Governor at the Governor's residence late at night to report violations of law at a state agency could justly be said to be insubordinate if requested not to do so. But to discipline an employee for going over the head of a supervisor allegedly involved in illegal or unethical workplace activity undermines exactly what the Legislature had in mind when it passed the Whistleblower Act. The most that can be made of a chain-of-command defense is that it might be raised as a valid nondiscriminatory reason for an employee's firing, that, like any other defense would have to be resolved by a factfinder. ......” [Emphasis added.]

Do Not Sit on Your Rights, or You May Lose the Right to File Your Claim. If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit.

In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately to discuss your options in the safest way for you.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were whistleblower employees and was successful in recovering multiple six figure settlement moneys for them. If you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in whistleblower law.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am an experienced and compassionate employment attorney who will be aggressive about enforcing your rights. I am successful in bringing whistleblower lawsuits against governmental entities and private employers and recovering money for whistleblower workers.

If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.


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