Whistleblowers Can’t Just Play the Blame Game

A recent New Jersey Appellate Division decision has clarified that a whistleblower needs to do more than make general reference to a law, policy or regulation to allege a violation of the Conscientious Employee Protection Act (“CEPA”).  Jareer Abu-Ali v. Pinnacle Food Group, LLC et al. was heard on appeal, following the Trial Court’s dismissal of the CEPA claim on summary judgment. Plaintiff was hired as the Director of Product Development for Pinnacle Food Group, LLC (“Pinnacle”).  Pinnacle is the owner of several food product brands.

Plaintiff began his employment with Pinnacle in May of 2011. Plaintiff’s various job responsibilities included new product development, maintaining current products, and managing a group of employees. Plaintiff was often tasked with informing his supervisors of various issues potentially impacting the quality and consistency of Pinnacle’s food products.  Following a dispute with one of the employees he managed, Plaintiff’s job was reclassified as an independent contractor position. Plaintiff refused the re-classified position, and was given the choice to resign or face termination.  He resigned and subsequently filed a lawsuit alleging he was wrongfully terminated, in violation of CEPA, as retaliation for the various reportings he made during the course of his employment.

More specifically, Plaintiff’s CEPA claim was based on his reasonable belief Pinnacle was violating the Federal Food Drug and Cosmetic Act (“FDCA”), which authorizes the Food and Drug Administration to protect the public health by ensuring “foods are safe, wholesome, sanitary, and properly labeled.” The FDCA also bans foods which have been “adulterated” from interstate commerce. Plaintiff also asserted his CEPA claim was based on a reasonable belief that Pinnacle had violated the Nutritional Labeling and Education Act (“NLEA”), which altered, expanded and clarified the [FDCA’s] labeling requirements.

The Trial Judge granted summary judgment in favor of Pinnacle. The decision was based, in part, on the fact that Plaintiff had not identified any specific rule, regulation or standard that Pinnacle actually violated. On appeal, Plaintiff challenged that determination, based on the holding in Dzwonar v. McDevitt, 177 N.J. 451 (2003) in which the New Jersey Supreme Court noted that a party asserting a CEPA claim need not show that his employer actually violated a law, regulation, or clear mandate of public policy, so long as the plaintiff held a reasonable belief in same. Id. at 462.

The Appellate Division ultimately held that a general reference to a law, rule, regulation or policy is insufficient for a successful CEPA claim.  Instead, it held that because CEPA requires the showing of a “close relationship” between a plaintiff’s concerns and the violation, the Plaintiff was required to present more. Agreeing with the lower court, the Appellate division held that Plaintiff had failed to present sufficient evidence to support the “close relationship” between his claims and the violation.  While Plaintiff presented evidence that he had reported various issues with Pinnacles food products throughout the course of his employment as Director of Product Development, he never actually alleged a violation of the FDCA or NLEA over the products he had reported about. As a result, the Appellate Division held that even if the claims were proven, Plaintiff would be unable to show that he had a reasonable belief that Pinnacle had violated a specific law, rule, regulation or clear mandate of public policy.

This holding makes clear that general reference of a law, policy or regulation may not be enough to support a claim under CEPA.  To maintain a viable CEPA claim, a plaintiff must present specific evidence about the rule, regulation or standard they cited at the time of his whistleblowing activity and how it relates to the conduct or action that was complained of.  

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