Imagine a district manager for a retail food service enterprise whose job duties require her to “regularly and customarily exercise discretion in managing the overall operation of the stores within [her] assigned district.” At various times, she visits her stores and finds situations that require supervisory attention.
In one store she notes there is missing inventory. In two others she learns that the food storage and display cases don’t have thermometers. On another visit, she sees mold and cobwebs in the food prep area. On yet another store visit, she sees tables and chairs arranged improperly, so that a wheelchair couldn’t navigate into or through the seating area; she tells the store manager to move the chairs and tables and later follows up. On other occasions she learns that some employees have been drinking in the workplace, and apparently others had consensual sex in a store after closing hours. For each observed condition, she initiated corrective managerial action. On an ongoing basis, she kept her boss apprised of what she found and her responses.
This seems like pretty normal managerial activity. Does our district manager sound like a whistleblower who was “opposing unlawful activity” when she went about her supervisory duties and managed the stores assigned to her? Was she “reporting unlawful activity” when she gave her boss periodic updates on her activities — in the nature of an “FYI,” as she characterized it? One would like to think that common sense would prevail and lead to the conclusion: “That’s not whistleblowing! That’s doing your job!”
But some creative attorney might think there is a whistleblower lawsuit hiding somewhere in those innocuous facts, after the district manager is told she doesn’t have a future with the company and is given a choice between resigning or being terminated. After all, as we are often reminded, the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, has been described as the most far-reaching whistleblower protective statute in the nation. And sure enough, the district manager, who was named White, sued her former employer, Starbucks, after she elected to resign. Her suit claimed that the seemingly normal managerial actions described above were really “whistleblowing.”
After discovery, Starbucks moved for summary judgment, which the trial court granted. The court relied on the holding in Massarano v. N.J. Transit, 400 N.J. Super. 474 (App. Div. 2008), in which the plaintiff security supervisor noted that blueprints and schematics had been inappropriately left sitting in a recycling bin on a loading dock and told the executive secretary of N.J. Transit about it. At some point thereafter, the plaintiff was terminated, supposedly for poor performance. Because the trial court and the Appellate Division held that Massarano had reported her findings as part of her job, and not in an effort to “blow the whistle,” her CEPA claim was dismissed.
The Appellate Division affirmed dismissal of White’s CEPA claim, for similar reasons. White v. Starbucks Corp., A-3153-09T2, 2011 N.J. Super. LEXIS 2982 (App. Div. Dec. 9, 2011). It agreed with the trial court’s finding that the “issues on which [White] bases her claim fall within the sphere of her job-related duties.” The evidence in the record left no doubt with both the trial and appellate courts that White had not “blown the whistle” — that is, submitted a report about a possible violation of law or policy or refused to engage in conduct she reasonably believed to be unlawful. Instead, she had merely related to her supervisors what she had done while managing stores and subordinates, all as part of her regular job responsibilities. If White “opposed” anything, it was inadequate or improper performance by her subordinates — not being directed to commit unlawful acts by a superior or having to comply with an illegal policy promulgated by her employer.
The losing plaintiff petitioned the New Jersey Supreme Court for certification, and the National Employment Lawyers Association (NELA) filed an amicus brief supporting certification. White’s petition claimed that the Appellate Division’s opinion constituted a “monumental change in the law that could severely restrict the scope of CEPA and thwart its public policy purposes.” The Supreme Court doesn’t issue opinions when it acts on petitions for certification, but its denial of certification on April 9 certainly had the effect of responding to White’s petition: “Not so.”
The Supreme Court’s decision should not have come as a huge surprise because it had twice taken the same action last year in cases that presented similar facts. First, in Richardson v. Deborah Heart & Lung Center, A-4611-08T2, 2010 N.J. Super. LEXIS 1795 (App. Div. July 28, 2010), the Appellate Division had upheld dismissal of a CEPA claim because the plaintiff was “merely performing the job duties assigned to her by her employer for the very purpose of avoiding a policy or practice that may have been contrary to law or public policy.” On Feb. 3, 2011, the Supreme Court denied certification. 205 N.J. 100 (2011). Then, in Aviles v. Big M, A-4980-09T4211, 2011 N.J. Super. LEXIS 564 (App. Div. March 8, 2011), the Appellate Division had affirmed summary judgment dismissing a CEPA claim by a retail store clerk who asserted that confronting a suspected shoplifter to “prevent theft” was CEPA-protected conduct. The Appellate Division disagreed, relying upon its ruling in Massarano to hold that “a plaintiff’s job duties cannot be considered whistleblowing conduct.” On Sept. 9, 2011, the Supreme Court denied certification.
In fact, White, Massarano, Richardson and Aviles, are squarely within the mainstream of case law decided on similar facts under federal and other states’ whistleblower laws. One of the most frequently cited decisions under the federal Whistleblower Protection Act of 1989, codified in various sections of 5 U.S.C. (WPA), is Willis v. Dep’t of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998). There, the plaintiff’s job responsibilities included “[d]etermining whether or not farms were out of conservation compliance,” and he did his job by reporting that 16 farms in his area were not in compliance. The Federal Circuit held that such a “report” did not make the employee a whistleblower because he “did no more than carry out his required every day job responsibilities.”
The same court ruled in Anderson v. Dep’t of Energy, 89 Fed. Appx. 711 (Fed. Cir. 2004), that another plaintiff could not claim to be a whistleblower for making “reports of misconduct on the part of individuals he supervised” — the same situation White tried to claim made her a whistleblower under CEPA — because such reports “came within the scope of [the plaintiff's] normal job duties and were not protected under the WPA.” Yet another panel of the same Circuit wrote plainly, “an employee who makes disclosures as part of his normal duties cannot claim the protection of the [WPA].” Huffman v. Office of Personnel Mgmt., 263 F.3d 1341 (Fed. Cir. 2001). Similarly, the Sixth Circuit interpreted federal environmental whistleblowing protections in Sassé v. Dep’t of Labor, 409 F.3d 773 (6th Cir. 2005), to hold that a former Assistant U.S. Attorney could not be deemed a whistleblower where his alleged whistleblowing activity consisted of investigating environmental crimes, bringing them to the attention of his superiors, and prosecuting them — precisely his assigned responsibilities.
Courts in Ohio, Louisiana, Maine and Minnesota have reached the same conclusion under those states’ whistleblower laws. In Haddox v. Ohio State Atty. Gen., 2008 Ohio App. LEXIS 3683 (Ohio Ct. App. Aug. 26, 2008), a deputy assistant attorney general wrote several e-mails detailing her dissatisfaction with the performance of one of the attorneys who reported to her, including that the subordinate was abusing and even falsifying time reporting in order to improperly accrue compensatory time off. The court held that the plaintiff “was merely doing what she was expected to do as a supervisor and cannot be said to have risked her job to ‘blow the whistle’ for the benefit of the citizens of Ohio.” The court analyzed the context of the plaintiff’s communications and concluded that they “clearly evidence her frustrations as a supervisor with a subordinate’s performance” rather than “that of [an] employee whose concern is focused on the alleged violation or misuse.”
In a case decided under the Louisiana Environmental Whistleblower Statute, Stone v. Entergy Serv., 9 So.3d 193, 200 (La. Ct. App. 2009), the court affirmed a lower court’s dismissal of the case because reporting environmental violations was a part of the plaintiff’s job. Under the Maine Whistleblower Protection Act, a federal district court held in Capalbo v. Kris-Way Truck Leasing, 2011 U.S. Dist LEXIS 125113 (D. Me. Oct. 28, 2011), that an employee’s submission of reports of hours worked, which showed that he was in danger of violating a U.S. Department of Transportation rule specifying the maximum number of hours he could work, could not constitute either opposition to unlawful activity or a report of unlawful conduct, since the time reports were part of the employee’s normal job responsibilities. And a plurality of the Minnesota Supreme Court, addressing a suit brought by an in-house counsel in Kidwell v. Sybaritic, 784 N.W.2d 220 (Minn. 2010), wrote that “when it is the employee’s job to report illegality, there is no basis to infer from the mere fact of a report that the employee’s report was made to ‘blow the whistle.’” Similar rulings have been issued under the Sarbanes-Oxley Act of 2002. Grant v. Dominion East Ohio Gas, 2004-SOX-63, 2005 DOLSOX LEXIS 79 (ALJ March 10, 2005); Getman v. Southwest Securities, ARB No. 04-059 (July 29, 2005).
Thus, contrary to the protests from the plaintiff-side employment bar that White “eviscerates CEPA,” the casereally breaks no new ground. Because it followed, rather than departed from, established New Jersey precedent, the Supreme Court properly denied certification. Moreover, it is consistent with factually analogous cases decided under similar whistleblower protection laws in other jurisdictions. And, significantly, it makes common sense. All these decisions reflect an appropriate judicial recognition that the context of any “report” or “refusal to perform” must be considered, lest — in the words of the Ohio Court of Appeals in Haddox — “every disclosure made by [an] employee in a supervisory position [be transformed] into a protected whistleblower activity.” Performing a supervisory job and reporting to your boss what you’ve done in the normal course of supervising — without more — is simply not conduct that should convert management responsibility into whistleblowing activity.