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Dear Potential Whistleblowers – You’d Better Prove That You Were Fired As Retaliation

by | Dec 12, 2016 | Uncategorized


In a November 28 ruling, a New Jersey Appeals Court said that merely claiming that you were fired for participating in legally protected “whistle-blowing” activity doesn’t work. Under the law, a person has to give proof that any reasons the employer shows for firing are just excuses, and the real reason was for the protected activity.

Ms. Miller who was a social worker at Shore Memorial Center and said that the hospital fired her as a reprisal, because she engaged in whistle-blowing activity protected under New Jersey’s Conscientious Employee Protection Act (CEPA). Neither side disagreed that she did that. But there was a 4 month gap between that happening and her termination. The hospital presented proof “of legitimate non-retaliatory reasons for firing plaintiff.” Miller disagreed and appealed, saying that those reasons were just an excuse or “pretext” for the claimed retaliatory termination.

It was undisputed that Miller had serious attendance issues at her job going back years. Four months before her termination, she was given two warnings, and a “third-level final disciplinary warning for ‘poor job performance’ that could lead to her ultimately being fired.

All of the warnings and attendance issues were well documented. On January 26, 2011, her superiors sent her a memo telling her that she needed to be at work on time and must be attentive to her emails. The very next day, she made her “whistle-blowing” claims. A month later, she got a rejection to her appeals of the attendance warning and was reminded her that future failure to follow the hospital guidelines could result in termination.

On April 20, 2011 she was fired because a patient “complained… that [she] disclosed confidential medial information to [the] patient’s family without the patient’s consent.” This would be a violation of federal medical privacy laws (HIPAA). On May 5th of that year, another patient complained that Miller was “…rude, unsympathetic and, in the woman’s view, treated her family like ‘trash”” The next day, the plaintiff was fired. Her superior noted the two instances of complaints, poor job performance, and serious attendance issues.

The Court felt that the plaintiff didn’t give any evidence at all showing that the hospital’s stated reasons for firing her weren’t true or were just an excuse to fire her for the whistle-blowing activity. It said that “no rational jury could conclude that the employer’s reasons for firing plaintiff were not only untrue but were motivated by retaliatory intent.” Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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