Appellate Division Allows Detective’s Whistleblower Lawsuit to Proceed

The New Jersey Appellate Division has overturned a trial court’s decision dismissing a Somerset County detective’s whistleblower lawsuit that stems from complaints he made regarding improper evidence collection and casework by the forensic unit and his supervisor.  The case was previously dismissed by the trial court who found that the Somerset County Prosecutor’s Office’s actions in transferring the detective from the forensic unit to the fugitive squad did not amount to an adverse employment action required under the New Jersey Conscientious Employee Protection Act (“CEPA”) “whistleblower” law.

The Appellate Division disagreed with the trial court and has ordered the case to move forward to the discovery phase.  The plaintiff in the case, Jeffrey Scozzafava, began working in the Somerset County Prosecutor’s Office forensic unit in 2007.  Prior to his employment with the Somerset County Prosecutor’s office, Mr. Scozzafava was employed as a forensic detective with the New Jersey State Police Crime Scene Investigation unit.  In the lawsuit, Mr. Scozzafava alleges that he made several complaints regarding poor evidence collection and inadequate casework completed by the Unit (which included his supervisor) and that he was retaliated against by his employer in response to those complaints.

Specifically, Mr.  Scozzafava contends that his supervisor’s decision to move him out of the forensic unit to the fugitive squad amounts to an adverse employment action. Mr. Scozzafava alleges that his supervisor told Mr. Scozzafava that “Everybody does time in the penalty box” when they discussed the job transfer.  In the new role, Mr. Scozzafava was no longer able to earn overtime compensation and his office car was downgraded. Mr. Scozzafava also claims that as a result of the transfer, he was no longer able to utilize the skills and knowledge he had gained in his experience and study of forensic detective work.  This was particularly demeaning to him because he had developed extensive expertise in the field in addition to having earned a proven reputation as an expert.

Contrary to the trial court ruling, the Appellate Division found Mr. Scozzafava’s transfer to the fugitive squad was objectively demeaning and could constitute an adverse employment action under CEPA. In reaching the decision, the court recognized that CEPA’s purpose “is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Consistent with that purpose, CEPA must be considered ‘remedial’ legislation and therefore should be construed liberally to effectuate its important social goal.”

The case confirms that a job transfer can amount to an adverse employment action under CEPA.  In order show that an employment action is adverse under the whistleblower law, the employee must show that a reasonable employee would find the challenged action would dissuade a reasonable worker from making or supporting the protected complaint.  While the New Jersey whistleblower law does not provide an exhaustive list of what constitutes an adverse employment action, courts have found actionable retaliation to include a loss of pay, demotion, failure to hire, failure to promote, discipline and other material changes of the terms and conditions of employment. The Appellate Division’s decision reaffirms that an employee can maintain a whistleblower lawsuit under New Jersey law in situations where the retaliation may not involve an actual termination.

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