On May 14, 2018, the Superior Court of New Jersey, Appellate Division held that laterally transferring an employee to a different job can constitute retaliation under the New Jersey whistleblower law, the Conscientious Employee Protection Act (CEPA).
The plaintiff, Jeffrey Scozzafava, was a retired police officer employed by the Somerset County Prosecutor’s Office in its forensic unit. Scozzafava alleged that he was transferred from the forensics unit to the fugitive unit, reduced his ability to earn overtime pay, and changed his work vehicle, in retaliation for making whistleblowing complaints regarding improper and deficient evidence collection and casework by the forensic unit and his supervisor.
The trial court held that Scozzafava’s transfer to the fugitive unit and change of vehicle were not sufficient to support a CEPA claim, because the court found that Scozzafava maintained his position and rank, with full pay and benefits, arguably improved his working hours, and his physical arrangements were unchanged. The court further ruled that he did not substantiate a claim of damage to his professional reputation, and finally, rejected his claim that the transfer deprived him of overtime wages because the overtime pay was “unreliable and speculative.”
The Appellate Division reversed, holding that Scozzafava’s transfer was sufficient to show a “retaliatory action” under CEPA. The court reasoned that under CEPA, a “retaliatory action” includes not only a whistle-blowing employee’s “discharge, suspension or demotion,” but also “other adverse employment action taken against an employee in the terms and conditions of employment,” and that retaliation can be composed of “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.”
The Appellate Division found two main adverse employment actions against Scozzafava. First, Scozzafava had great deal of training and a proven reputation in the forensics field, and the transfer out of the forensics unit was “demeaning,” and prevented him from utilizing and further developing his forensics expertise. Second, the loss of overtime compensation amounted to thousands of dollars, and this was a reduction in his compensation. These actions, taken together with the rest of Scozzafava’s allegations, were sufficient to state a claim for retaliation under CEPA. The Appellate Division reversed and remanded for further proceedings.
We will continue to monitor developments in this case.