New Jersey Appellate Court Finds that the Timing of an Employee’s Alleged
Whistleblowing Activity Plays a Significant Role in a CEPA Claim
By Reema L. Chandnani, Esq.
On January 25, 2024, the New Jersey Appellate Court (“Court”) affirmed the motion judge’s decision to dismiss plaintiff’s complaint involving a claim under the Conscientious Employee Protection Act (“CEPA”) (as well as other claims) in Fenyak v. St. Peter’s University Hospital et al. The Court’s decision highlights that the timing of an alleged whistleblowing activity is crucial, and ultimately, a whistleblowing activity that only occurs after being confronted with major work violations, may not be protected under the law.
In relevant part, plaintiff, a registered nurse, was employed by St. Peter’s University Hospital, defendant. To control and dispense medications to patients, defendant utilized AcuDose machines. These machines enabled authorized hospital employees to add and remove medication from the machines and kept a log of medications released including the process to which they were released. Before medication could be dispensed, a physician’s order was necessary. Without such an order, medications could only be dispensed if an employee overrode the AcuDose system.
Starting in the summer of 2017, the pharmacy department that managed the machines, was made aware of discrepancies with medication being dispensed, including high usage of Benadryl and Nubain and medications being dispensed for personal reasons. In addition, the ongoing internal investigation revealed that plaintiff, on about fifty different occasions, removed medication in which plaintiff either did not have a doctor’s authorization for the medication or there was no documentation demonstrating the medication was administered to patients. Based on these major discrepancies, defendant’s Human Resources spoke with plaintiff, in which she was advised that the discrepancies illustrated plaintiff was acting outside the scope of a registered nurse. After being notified of the major discrepancies and being advised that the defendant’s operations may be closed down if an external investigation took place, plaintiff indicated that an outside investigation was needed as there was a systematic problem with the hospital. Four days later, plaintiff was terminated. The termination notice explained that the close to fifty discrepancies under her name were an egregious violation and a serious infraction. This resulted in plaintiff filing her complaint.
In filing her complaint, plaintiff argued that she was a whistleblower when she stated that an external investigation was needed and that she was ultimately terminated for that activity. After defendant filed for summary judgment, the motion judge dismissed plaintiff’s CEPA claim as well as one remaining claim, finding that plaintiff’s statement was not made to protect the public, but instead, was made as a last-ditch effort to protect her own job. As such, the motion judge held that plaintiff did not identify “any such law, rule, regulation, or clear mandate of public policy” that was violated, there was no causal connection between plaintiff’s alleged whistleblowing activity and her termination, and defendant’s act of terminating plaintiff for her misuse of the AcuDose machines was not pretextual. On appeal, the Court agreed with the motion judge and found it unnecessary to further discuss the issue.
The Court’s affirming decision puts some ease on New Jersey employers to know that an after-the-fact whistleblowing activity will be reviewed with scrutiny when an employee is already being questioned and/or disciplined for wrongdoing on the job.
Please contact an NFC team member if you have any questions or seek further assistance.