Worker's Whistleblowing Claim May Proceed

New Jersey Supreme Court Finds Transfer Followed Complaints

The New Jersey Supreme Court has held that an employee who was transferred after complaining about his employer’s decision not to enforce certain laws may sue under the Conscientious Employee Protection Act (CEPA). According to the court, the worker’s claim did not rest simply on a “personal disagreement” with the employer’s policy decision, but rather was based on an objectively reasonable belief that the employer’s conduct was incompatible with a clear mandate of public policy. Maimone v. The City of Atlantic City, No. A-59-05, Supreme Court of New Jersey (2006).

Factual Background

Angelo Maimone was employed by the Atlantic City Police Department. In 1991, he was transferred from patrolman to detective in the Special Investigations Unit. In this role, he was assigned to investigate prostitution and other sex-related offenses.

In May 2000, Arthur Snellbaker was appointed Chief of the Atlantic City Police Department. Eight months later, Captain William Glass told Maimone that he could not initiate any new prostitution investigations unless they “directly impacted the citizens of Atlantic City.” Maimone’s immediate supervisor, Sergeant Glenn Abrams, then directed him to stop all prostitution investigations and to conduct only narcotics investigations.

Around the same time, Maimone’s files on prostitution were removed from his filing cabinet. When he complained to Abrams about losing access to those files, Abrams allegedly told him that he was “never going to see the files again.”

Maimone also allegedly complained about the City’s failure to enforce a law which makes it an offense for a sexually-oriented business to operate within 1,000 feet of a church or school. Maimone sent a letter to Abrams requesting that the mercantile license of a business be revoked under the statute. Glass then allegedly said to Maimone, “You’re out of here, you’re going to patrol.” On June 10, 2001, Maimone was transferred to a patrolman position after a newspaper story disclosed that he had attended the wedding of a daughter of a suspected organized crime figure.

Maimone filed a lawsuit against Atlantic City and Snellbaker under CEPA. The lower court dismissed the suit, finding that Maimone failed to present evidence that he “reasonably believed” the City’s decision violated a clear mandate of public policy. The Appellate Division reversed and this appeal ensued.

Legal Analysis

To prevail on his CEPA claim, Maimone must show that: 1) he reasonably believed that the City’s conduct violated a clear mandate of public policy; 2) he engaged in “whistleblowing” activity; 3) he suffered an adverse employment action; and 4) a causal connection exists between the protected activity and the adverse action.

The New Jersey Supreme Court found that Maimone satisfied the first requirement. That is, he had an objectively reasonable belief that the City made a policy decision to stop all investigation and enforcement of laws prohibiting the promotion of prostitution and restricting the location of a sexually-oriented business. Whether Maimone’s objections to the City’s decision constituted whistleblowing activity was not disputed, so the court did not address the second requirement. The court did find that Maimone’s transfer from detective to patrol duty resulted in a reduction in compensation and a loss of other benefits. Thus, the court ruled that the evidence could support a finding that he suffered an “adverse employment action.”

With regard to the fourth requirement, the court noted that the temporal proximity of Maimone’s complaints to his transfer to patrol duty could support an inference that his complaints were the reason for his transfer. The court also reasoned that the City’s decision to transfer Maimone was implausible since the Internal Affairs Bureau had issued a report concluding that Maimone’s supervisors had authorized his attendance at the wedding. Thus, the court ruled that Maimone had a right to pursue his CEPA claim.

Practical Impact

According to Lynelle Slivinski, an attorney in the firm’s Morristown office: “This opinion, when taken to its logical end, could result in employers having to satisfactorily explain every discretionary decision to each and every employee to avoid CEPA claims. In this case, for example, the court did not allow the plaintiff to proceed with his CEPA claim because the City engaged in wrongful municipal action, but rather because the employee was not told and had no reason to believe the basis for the City’s policy decision to stop all investigations.”

Note: This article was published in the Dec/Jan 2007 issue of the New Jersey eAuthority.