Why did Pinocchio Bludgeon Jiminy Cricket with a Hammer? A Victory for the Whistleblower.

July 30, 2019

By Francine Foner, Esq., Ty Hyderally, Esq.

Cape May County appointed Kim Allen (“Allen”) to the position of County purchasing agent in 2008, reappointed her three years later, but then did not reappoint her in 2014. Allen alleged that the County’s Freeholder Director, Gerald Thornton (“Thornton”), violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., by failing to reappoint her in retaliation for her having engaged in whistleblowing activities.

The Trial Court found that Allen had “failed to present evidence . . . other than her subjective belief, that the County’s proffered reasoning is pretextual” and did not show that there was a causal connection between her whistleblowing activities and her termination. Kim Allen v. Cape May County, 2019 N.J. Super. Unpub. LEXIS 1644, *3 (App. Div., July 17, 2019). The Trial Court therefor dismissed Allen’s claims on the defendants’ motion for summary judgment. Id.

In a 2-1 unpublished decision released on July 17, 2019, the Appellate Division reversed the Trial Court’s dismissal of Allen’s retaliation claims against Cape May County and Thornton.

During April, June and July of 2014, Allen voiced her concerns regarding the County’s failure to comply with laws governing the County’s bidding process for legal representation and pay-to-play laws, N.J.S.A. 19:44A-20.13 to -22. On July 14, 2014, the County sent Allen a Rice[1] notice regarding her non-renewal.  The County contended that Allen’s contract was not renewed for legitimate reasons, including that she was a “mediocre employee” who misinterpreted public contracts law and that several department heads had complained about her performance. Id. at *14-15. However, the Appellate Division held that such reasons “were belied by other evidence” provided by Allen. Such evidence, the Court found, created genuine issues of material fact regarding whether the County’s explanation for Allen’s non-renewal was pretextual, or retaliation was more likely than not the determinative factor in the decision.  

For example, Thornton admitted that he never disciplined Allen nor documented any problems or concerns regarding her performance, never documented nor memorialized any of the alleged complaints made by other County employees, and did not provide specifics about the nature of most of such complaints. There was also testimony by the former Human Resources Director that Allen’s performance was “excellent” and that she was very knowledgeable about pay-to-play and public contracts laws.  Id. at *15.  The Appellate Division further relied upon testimony showing that employee complaints about Allen in fact reflected annoyance with Allen’s “insistence on compliance with statutory obligations.” Id. at 18.

The Court further opined that the fact that the County followed the law after Allen objected to its non-compliance did not exonerate the County of retaliating against Allen. Rather, the Court held “[e]ven if they obeyed the law — action that could be attributed to plaintiff’s CEPA-protected activity — its intent could still be found to be retaliatory. Often those who act as the conscience of the community are disfavored: there was a reason Pinocchio bludgeoned Jiminy Cricket with a hammer.”[2] 

Thus, the Appellate Division’s opinion in Allen reinforces and strengthens the protections available to New Jersey whistleblowers under CEPA.

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[1] In Rice v. Union County Regional High School Board of Education, 155 N.J. Super. 64, 70 (App. Div. 1977), the Appellate Division recognized the right of public employees to have their personnel matters discussed in open forum and be given advance notice of same, now commonly known as a Rice notice.

[2] Id. at *18-19, Citing Carlo Collodi, The Adventures of Pinocchio, 24 (Carol Della Chiesa trans., The Floating Press 2009) (1883).