District Court recognizes reporting of employer’s alleged illegal actions to co-worker are insufficient to establish the third element of a CEPA claim.

This matter arises from a Conscientious Employee Protection Act (CEPA) claim where the plaintiff contended her employer “asked her to participate in illegal conduct, engaged in discriminatory and retaliatory behavior against her, and failed to pay her overtime wages.” The defendant argued in its motion for summary judgment that the plaintiff failed to establish any proof that she engaged in whistle blowing activity or that she suffered an adverse employment action.

The court denied the defendant’s motion for summary judgment. As to the first CEPA element—a reasonable belief that the employer’s conduct constituted a violation of the law—the court found sufficient evidence that the plaintiff reasonably believed her employer violated a law, regulation or clear mandate of public policy under CEPA.

As to prong two—engaging in whistleblowing activity—the court found there was a genuine issue of material fact regarding whether the plaintiff engaged in whistleblowing activity, based upon her alleged reports to her supervisor. Notably, however, the court rejected the plaintiff’s contention that she reported the alleged illegal activity to a co-worker, insufficient to establish the second element of a CEPA claim. The court reasoned that “informing a co-employee that an employee was allegedly violating the law does not constitute whistleblowing activity under CEPA.”

The court also found genuine issues of material fact as to whether the plaintiff satisfied the third CEPA element—an adverse employment action—based upon her claims, including that she was given more burdensome and problematic work assignments, her work was scrutinized more closely, she was placed on a Performance Improvement Plan without justification and she was intentionally sabotaged.

The court similarly found a genuine issue of material fact as to the fourth CEPA element—a causal connection between the whistleblowing activity and adverse employment action—noting there is a genuine issue of material fact as to whether the plaintiff engaged in whistleblowing activity and whether the plaintiff was subjected to an adverse employment action.

^{Case Law Alerts, 2nd Quarter, April 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}