Print Friendly, PDF & Email

By Punam Alam, Esq., June 3, 2021

In a split opinion, the New Jersey Supreme Court ruled on May 21, 2021 that the trial court must re-evaluate an employee’s whistleblower claim because the plaintiff-employee did not articulate which statutory provision of CEPA she was relying on in summary judgment proceedings before the trial court. The case serves as a reminder to employers litigating CEPA claims to ensure that the plaintiff-employee identifies the statutory provision of CEPA relied upon during the course of litigation and summary proceedings before the trial court.

In Allen v. Cape May, the plaintiff alleged that the County of Cape May refused to renew her contract as a County Purchasing Agent in retaliation for her engaging in a CEPA-protected activity.  Plaintiff alleged that she complained about two activities protected under CEPA: (1) that the County failed to comply with competitive bidding protocols to engage an outside law firm for workers’ compensation claims; and (2) the County again failed to follow bidding protocols when retaining another law firm to review an unrelated complaint.  Plaintiff alleges that the County then provided her a notice that it was not renewing her contract after her complaints.

Plaintiff filed suit alleging that the County’s failure to renew her contract was in retaliation for her complaints under CEPA.  The trial court granted summary judgment in the County’s favor finding that while plaintiff articulated a prima facie claim for retaliation under CEPA, defendants met their burden to establish a legitimate, non-retaliatory reason related to the decision to not renew plaintiff’s contract. Plaintiff appealed and the Appellate Division reversed and remanded the matter, with the majority of the panel concluding that there was a factual dispute with respect to defendants’ proffered reasons to not renew plaintiff’s contract.

On appeal to the New Jersey Supreme Court, the County urged the Court to reinstate the trial court’s grant of summary judgment by claiming that plaintiff failed to present evidence that the County retaliated against for her alleged protected activity.  In remanding the case on summary judgment to the trial court as to the first incident, the Court noted that the trial court did not analytically separate the different statutory CEPA provisions and it was unclear whether the decision was made based on the provision on which plaintiff relied. Notably, plaintiff did not identify which statutory provision of CEPA she was proceeding under until the matter was before the Supreme Court and it was unclear which statutory provision the trial court relied on to decide the motion for summary judgment.

With respect to the second incident, the Court determined that plaintiff’s correspondence regarding the improper retention of the law firm that conducted the independent investigation came after the County decided not to renew her contract and that the decision-maker was unaware of any prior objections made by plaintiff related to the issue.  As a result, the Court affirmed the grant of summary judgment as to the second incident concluding that plaintiff presented “no prima facie evidence of a causal nexus between her comments on the retention” of the law firm and the decision to not renew her contract.

The case is Allen v. Cape May County, A-083295, 2021 WL 1897625 (N.J. May 12, 2021).


SIGN UP NOW to receive time sensitive employment law alerts and invitations to complimentary informational webinars and seminars.

"*" indicates required fields

By clicking this button and submitting information to us, you will be submitting certain personally identifiable information, or information which used together with other information, can be used to identify you and/or identify information about you, to Nukk-Freeman & Cerra, PC (“NFC”). Such information may be used by NFC to contact or identify you. Personally identifiable information may include, but is not limited to, your [name, phone number, address and/or] email address. We collect this information for the purpose of providing services, identifying and communicating with you, responding to your requests/inquiries, and improving our services. We may use your personally identifiable Information to contact you with time sensitive employment law e-alerts, marketing or promotional offers, invitations to complimentary and informational webinars and seminars, and other information that may be of interest to you. However, by providing any of the foregoing information to you, we are not creating an attorney-client relationship between you and NFC: nor are we providing legal advice to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link in any email we send. However, this will not unsubscribe you from receiving future communications from us which are based upon an independent request, relationship or act by you.