Lippman v. Ethicon, Inc. – Appellate Division Panel Departs from Massarano Dictum, Holds That Whistleblowing Activity Falling Within Employee’s Job Duties Protected by CEPA

In an opinion approved for publication, an Appellate Division panel has departed from the dictum, set forth in Massarano v. New Jersey Transit, 400 N.J. Super.474 (App. Div. 2008), that an employee’s whistleblowing activity is not protected under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et. seq.(“CEPA”), if such activity falls within the job duties or responsibilities of that employee.
In Lippman v. Ethicon, Inc., Docket No. A-4318-10 (App. Div. September 4, 2013), Defendant Ethicon terminated the plaintiff, a medical doctor with a master’s degree in public health, from his position as vice president of medical affairs and chief medical officer on May 16, 2006. Plaintiff claimed that his employment was terminated in retaliation for whistleblowing activities in which he had engaged between 1998 and April 25, 2006, activities that the panel reviewed at length in its opinion. Relying on the dictum set forth in Massarano, Defendants moved for summary judgment on the ground that that these activities were not protected under CEPA because they fell within plaintiff’s job duties and responsibilities. The motion judge, who, the panel noted, was bound by the dictum set forth in Massarano, agreed with Defendants and granted the motion. Reversing the motion judge and remanding the matter for trial, the panel

respectfully disagree[d] that this outcome is consistent with CEPA’s broad remedial purposes and, most importantly, correctly applies our Supreme Court’s construction of the protections afforded under CEPA. We thus decline to endorse it. Indeed, the facts of this case illustrate the gaping holes this line of reasoning creates in the wall erected by the Legislature to protect whistleblowers from retaliation. “Watchdog” employees, like plaintiff, are the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety.
. . .
When using the term “watchdog” employee, we are referring to the employee who, by virtue of his or her duties and responsibilities, is in the best position
to: (1) know the relevant standard of care; and (2) know when an employer’s proposed plan or course of action would violate or materially deviate from that standard of care. In our view, it would be a sad irony indeed if such a “watchdog” employee, like plaintiff, would be deemed by a court to fall outside the wall of protection created by the Legislature to whistleblowers. If an individual’s job is to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against that individual because of his or her performance of duties in good faith, and consistent with the job description.. . . To establish a prima facie cause of action under CEPA, employees who perform “watchdog” activities as their employment function must demonstrate the following. First, the employee must establish that he or she reasonably believed that the employer’s conduct was violating either a law, government regulation, or a clear mandate of public policy. Second, the employee must establish that he or she refused to participate or objected to this unlawful conduct, and advocated compliance with the relevant legal standards to the employer or to those designated by the employer with the authority and responsibility to comply. To be clear, this second element requires a plaintiff to show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct. Third, the employee must establish that he or she suffered an adverse employment action. And fourth, the employee must establish a causal connection between these activities and the adverse employment action.

I’ve practiced employment litigation my entire career and represented numerous employees in matter arising under CEPA. If you are an employee that believes yourself to be the victim of workplace retaliation, please contact me at Posternock Apell, PC. We will fight to protect your interests.