Joel S. Lippman, M.D. v. Ethicon, Inc. (073324)
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Opinion
SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
Joel S. Lippman, M.D. v. Ethicon, Inc. and Johnson & Johnson, Inc. (A-65/66-13) (073324)
Argued January 20, 2015 -- Decided July 15, 2015
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers whether an employee, whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the Conscientious Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.
Plaintiff Joel S. Lippman, M.D., was employed by defendant Ethicon, Inc., a subsidiary of defendant Johnson & Johnson, Inc., a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination in May 2006. For the majority of his employment, plaintiff served as worldwide vice president of medical affairs and chief medical officer of Ethicon. He was responsible for safety, medical reviews, and medical writing. Plaintiff served on multiple internal review boards, including a quality board that was created to assess the health risks posed by Ethicon’s products and provide medical input regarding any necessary corrective measures with respect to their products in the field.
On numerous occasions, plaintiff objected to the proposed or continued sale and distribution of certain Ethicon medical products on the basis that they were medically unsafe and that their sale violated various federal and state laws and regulations. In some instances, plaintiff opined that a particular product should not go to market, should be recalled, or that further research was necessary. Although he received “push back” from executives and other members of the boards whose interest and expertise aligned with Ethicon’s business priorities, Ethicon ultimately followed many of his recommendations. In April 2006, plaintiff advocated the recall of a particular product that he believed was dangerous, and it was eventually recalled in late April or early May 2006. On May 15, 2006, Ethicon terminated plaintiff’s employment.
Plaintiff filed a complaint alleging, in part, that his employment was terminated due to his whistleblowing activities, which he identified as his actions in reporting a number of products as dangerous and in violation of the federal Food, Drug and Cosmetic Act, and advising that defendants either recall the products or perform further research. Ethicon asserted that plaintiff was terminated as a result of an inappropriate relationship with someone who worked in a department under his authority. The trial court granted defendants’ summary judgment motion, dismissing plaintiff’s CEPA action. Relying on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), the court concluded that, because plaintiff admitted it was his job to bring forth issues regarding drug and product safety, he failed to show that he performed a whistleblowing activity protected by CEPA.
Plaintiff appealed, and the Appellate Division reversed in a published decision. Lippman v. Ethicon, Inc., 432 N.J. Super. 378 (App. Div. 2013). The panel rejected the trial court’s interpretation of protected whistleblowing conduct under N.J.S.A. 34:19-3(c), finding that it was inconsistent with the broad remedial purposes of CEPA. The panel noted that watchdog employees like plaintiff are the most vulnerable to retaliation because they routinely speak out when corporate profits are put ahead of consumer safety, and CEPA’s definition of an eligible employee does not limit protection based on job title or function. However, when addressing the standard for establishing a prima facie CEPA claim, the panel articulated an additional requirement for watchdog employees. Specifically, unless a watchdog employee refused to participate in the objectionable employer conduct, the employee must demonstrate that he or she pursued and exhausted all internal means of securing compliance. This Court granted defendants’ petition for certification and plaintiff’s cross-petition. 217 N.J. 292 (2014).
HELD: CEPA’s protections extend to the performance of regular job duties by watchdog employees. Unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection.
1. In order to determine whether plaintiff is entitled to bring a CEPA cause of action, the Court must construe CEPA’s language. In addressing this question of the Act’s meaning, the Court’s review is de novo. CEPA is remedial legislation entitled to liberal construction, with the purposes of protecting whistleblowers from retaliation by employers and discouraging employers from engaging in illegal or unethical workplace activities. N.J.S.A. 34:19-3 establishes the types of whistleblowing activity for which “an employer shall not take any retaliatory action against an employee.” An “employee,” as defined by N.J.S.A. 34:19-2(b), is “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” (pp. 21-25)
2. Turning to the question of whether watchdog employees like plaintiff are entitled to CEPA protection, the Court notes that CEPA’s plain language does not define employees protected by the Act as inclusive of only those with certain job functions. Moreover, New Jersey case law has extended the reach of N.J.S.A. 34:19-2(b), not restricted it. There is no support in CEPA’s definition of an “employee” to preclude its protection of watchdog employees. Restricting CEPA’s protection to a discrete class of employees would contravene two principles of statutory construction, namely that courts may not engraft language that the Legislature has not chosen to include in a statute and that remedial legislation should be liberally construed. (pp. 26-27)
3. The Court rejects defendants’ argument that watchdog employees must be acting outside the scope of their job duties in order to engage in CEPA-protected conduct under N.J.S.A. 34:19-3(c), which requires that a plaintiff “[o]bject[] to or refuse[] to participate in any activity, policy or practice. . . .” The plain meaning of the word “object” does not support defendants’ interpretation. Given that remedial legislation should be liberally construed, it would be wholly incongruent to strain the normal definition of “object” into some implicit requirement that limits a class of employee to whistleblower protection only for actions taken outside of normal job duties. This conclusion is further supported by subsection (c)’s corollary phrase “refuse[] to participate,” which implies that CEPA- protected conduct can occur within the course of an employee’s normal job duties. Furthermore, since neither subsection (a) nor (b) of N.J.S.A. 34:19-3 states or suggests that an employee must be acting outside of his or her usual duties to merit protection, it is inexplicable to assume that the Legislature would intend an implicit “job duties” exception excluding watchdog employees under subsection (c). (pp. 27-32)
4. To the extent that defendants and the trial court relied on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), for the proposition that watchdog employees are only entitled to CEPA protection if acting outside of the scope of their jobs, the Court finds that this argument lacks solid foundation.
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SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
Joel S. Lippman, M.D. v. Ethicon, Inc. and Johnson & Johnson, Inc. (A-65/66-13) (073324)
Argued January 20, 2015 -- Decided July 15, 2015
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers whether an employee, whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the Conscientious Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.
Plaintiff Joel S. Lippman, M.D., was employed by defendant Ethicon, Inc., a subsidiary of defendant Johnson & Johnson, Inc., a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination in May 2006. For the majority of his employment, plaintiff served as worldwide vice president of medical affairs and chief medical officer of Ethicon. He was responsible for safety, medical reviews, and medical writing. Plaintiff served on multiple internal review boards, including a quality board that was created to assess the health risks posed by Ethicon’s products and provide medical input regarding any necessary corrective measures with respect to their products in the field.
On numerous occasions, plaintiff objected to the proposed or continued sale and distribution of certain Ethicon medical products on the basis that they were medically unsafe and that their sale violated various federal and state laws and regulations. In some instances, plaintiff opined that a particular product should not go to market, should be recalled, or that further research was necessary. Although he received “push back” from executives and other members of the boards whose interest and expertise aligned with Ethicon’s business priorities, Ethicon ultimately followed many of his recommendations. In April 2006, plaintiff advocated the recall of a particular product that he believed was dangerous, and it was eventually recalled in late April or early May 2006. On May 15, 2006, Ethicon terminated plaintiff’s employment.
Plaintiff filed a complaint alleging, in part, that his employment was terminated due to his whistleblowing activities, which he identified as his actions in reporting a number of products as dangerous and in violation of the federal Food, Drug and Cosmetic Act, and advising that defendants either recall the products or perform further research. Ethicon asserted that plaintiff was terminated as a result of an inappropriate relationship with someone who worked in a department under his authority. The trial court granted defendants’ summary judgment motion, dismissing plaintiff’s CEPA action. Relying on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), the court concluded that, because plaintiff admitted it was his job to bring forth issues regarding drug and product safety, he failed to show that he performed a whistleblowing activity protected by CEPA.
Plaintiff appealed, and the Appellate Division reversed in a published decision. Lippman v. Ethicon, Inc., 432 N.J. Super. 378 (App. Div. 2013). The panel rejected the trial court’s interpretation of protected whistleblowing conduct under N.J.S.A. 34:19-3(c), finding that it was inconsistent with the broad remedial purposes of CEPA. The panel noted that watchdog employees like plaintiff are the most vulnerable to retaliation because they routinely speak out when corporate profits are put ahead of consumer safety, and CEPA’s definition of an eligible employee does not limit protection based on job title or function. However, when addressing the standard for establishing a prima facie CEPA claim, the panel articulated an additional requirement for watchdog employees. Specifically, unless a watchdog employee refused to participate in the objectionable employer conduct, the employee must demonstrate that he or she pursued and exhausted all internal means of securing compliance. This Court granted defendants’ petition for certification and plaintiff’s cross-petition. 217 N.J. 292 (2014).
HELD: CEPA’s protections extend to the performance of regular job duties by watchdog employees. Unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection.
1. In order to determine whether plaintiff is entitled to bring a CEPA cause of action, the Court must construe CEPA’s language. In addressing this question of the Act’s meaning, the Court’s review is de novo. CEPA is remedial legislation entitled to liberal construction, with the purposes of protecting whistleblowers from retaliation by employers and discouraging employers from engaging in illegal or unethical workplace activities. N.J.S.A. 34:19-3 establishes the types of whistleblowing activity for which “an employer shall not take any retaliatory action against an employee.” An “employee,” as defined by N.J.S.A. 34:19-2(b), is “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” (pp. 21-25)
2. Turning to the question of whether watchdog employees like plaintiff are entitled to CEPA protection, the Court notes that CEPA’s plain language does not define employees protected by the Act as inclusive of only those with certain job functions. Moreover, New Jersey case law has extended the reach of N.J.S.A. 34:19-2(b), not restricted it. There is no support in CEPA’s definition of an “employee” to preclude its protection of watchdog employees. Restricting CEPA’s protection to a discrete class of employees would contravene two principles of statutory construction, namely that courts may not engraft language that the Legislature has not chosen to include in a statute and that remedial legislation should be liberally construed. (pp. 26-27)
3. The Court rejects defendants’ argument that watchdog employees must be acting outside the scope of their job duties in order to engage in CEPA-protected conduct under N.J.S.A. 34:19-3(c), which requires that a plaintiff “[o]bject[] to or refuse[] to participate in any activity, policy or practice. . . .” The plain meaning of the word “object” does not support defendants’ interpretation. Given that remedial legislation should be liberally construed, it would be wholly incongruent to strain the normal definition of “object” into some implicit requirement that limits a class of employee to whistleblower protection only for actions taken outside of normal job duties. This conclusion is further supported by subsection (c)’s corollary phrase “refuse[] to participate,” which implies that CEPA- protected conduct can occur within the course of an employee’s normal job duties. Furthermore, since neither subsection (a) nor (b) of N.J.S.A. 34:19-3 states or suggests that an employee must be acting outside of his or her usual duties to merit protection, it is inexplicable to assume that the Legislature would intend an implicit “job duties” exception excluding watchdog employees under subsection (c). (pp. 27-32)
4. To the extent that defendants and the trial court relied on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), for the proposition that watchdog employees are only entitled to CEPA protection if acting outside of the scope of their jobs, the Court finds that this argument lacks solid foundation. Although Massarano contains language suggesting that a plaintiff who reports conduct as part of his or her job is not entitled to CEPA protection, the analysis in that case is premised on the conclusion that the defendants did not retaliate against the plaintiff for reporting the disposal of documents. Thus, reliance on Massarano for recognition of a job-duties exception to CEPA’s broad protection to employees misperceives the case’s essential finding of no retaliation and overextends its significance. The Court specifically disapproves of any such extrapolation from the Massarano judgment. Significantly, decisions of this Court have indicated only a contrary approach to CEPA coverage for individuals in positions of responsibility for corporate compliance with law and public policy. In sum, there is no support in CEPA’s language, construction, or its application in this Court’s case law for the conclusion that watchdog employees are stripped of whistleblower protection due to their position or because they are performing their regular job duties. (pp. 32-35)
5. Although the Court agrees with the Appellate Division’s finding that watchdog employees are entitled to CEPA protection when performing their ordinary job duties, it disagrees with the panel’s reformulation of the elements required to establish a prima facie CEPA claim, as set forth in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The panel’s requirement that watchdog employees demonstrate pursuit and exhaustion of all internal means of securing compliance is incompatible with prior precedent and imposes an obligation nowhere found in the statutory language. Where the Legislature intended to impose an exhaustion requirement, it has said so clearly. Consequently, the Court modifies the Appellate Division judgment to the extent that it imposed an exhaustion requirement not supported by the statute’s terms. CEPA imposes no additional requirements on watchdog employees bringing a CEPA claim unless and until the Legislature expresses its intent that such employees meet a special or heightened burden. (pp. 35-38)
The judgment of the Appellate Division is AFFIRMED, as MODIFIED, and the matter is REMANDED for further proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON and JUDGE CUFF (temporarily assigned) did not participate.
2 SUPREME COURT OF NEW JERSEY A-65/66 September Term 2013 073324
JOEL S. LIPPMAN, M.D.,
Plaintiff-Respondent and Cross-Appellant,
v.
ETHICON, INC. and JOHNSON & JOHNSON, INC.,
Defendants-Appellants and Cross-Respondents.
Argued January 20, 2015 – Decided July 15, 2015
On certification to the Superior Court, Appellate Division, whose opinion is reported at 432 N.J. Super. 378 (App. Div. 2013).
Francis X. Dee argued the cause for appellants and cross-plaintiffs (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Dee and Stephen F. Payerle, on the briefs).
Bruce P. McMoran argued the cause for plaintiff and cross-appellant (McMoran, O’Connor & Bramley, attorneys; Mr. McMoran and Michael F. O’Connor, on the briefs).
Adam N. Saravay argued the cause for amici curiae New Jersey Business & Industry Association, New Jersey Civil Justice Institute, Employers Association of New Jersey, New Jersey Defense Association and New Jersey Management Attorneys, Inc. (McCarter & English, Proskauer Rose, Gibbons, and Drinker Biddle & Reath, attorneys; Mr. Saravay, David R. Kott, Christopher S. Mayer, Mark A. Saloman,
1 Daniel L. Saperstein, Allana M. Grinshteyn, Nicholas M. Tamburri, Joseph J. Sarno, Natalie H. Mantell, Michelle M. Bufano, Michelle G. Haas, John A. Ridley, and Lawrence J. Del Rossi, of counsel and on the briefs).
Andrew W. Dwyer argued the cause for amici curiae The New Jersey Work Environment Council, The New Jersey State Industrial Union Council, and 25 other environmental, labor, consumer and community organizations, and The New Jersey Association for Justice (The Dwyer Law Firm, Law Office of Bennett D. Zurofsky, and Schiffman, Abraham, Kaufman & Ritter, attorneys; Evan L. Goldman, of counsel; Mr. Dwyer, Mr. Zurofsky, Mr. Goldman, and Kristen Welsh Ragon on the briefs).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Cross-petitions for certification were granted in this
matter to address issues related to the application of the
Conscientious Employee Protection Act (CEPA or Act), N.J.S.A.
34:19-1 to -14, to so-called “watchdog” employees. More
specifically, both petitions concern whether an employee, whose
job duties entail knowing or securing compliance with a relevant
standard of care and knowing when an employer’s actions or
proposed actions deviate from that standard of care, may invoke
the whistleblower protections afforded under N.J.S.A. 34:19-3 of
CEPA.
Plaintiff’s normal job duties included providing his
medical opinion about the safety of defendant pharmaceutical
company’s products. After he was terminated from his high-level
2 position with the corporation, he filed this CEPA action
claiming that his employer retaliated against him. The trial
court granted defendants’ motion for summary judgment on the
ground that plaintiff’s performance of his regular job duties
could not constitute CEPA-protected conduct. The Appellate
Division reversed, concluding that watchdog employees are among
those most in need of CEPA’s protection, and that the plain
language of the statute does not exempt from protection conduct
that constitutes a job duty. Lippman v. Ethicon, Inc., 432 N.J.
Super. 378, 406-08 (App. Div. 2013). In so holding, the panel
also articulated a tailored standard for evaluating CEPA claims
asserted by watchdog employees. Id. at 410.
According to plaintiff, the Appellate Division’s standard,
in effect, raised the bar for the proof that such employees must
present in order to establish a prima facie CEPA claim because
it requires demonstration that the employee either refused to
participate in the objectionable conduct or pursued and
exhausted all internal means of securing compliance.
Plaintiff’s petition focuses on whether the Appellate Division
improperly added an element to his CEPA-authorized cause of
action, thereby subjecting watchdog employees to a different and
heightened burden compared to other CEPA plaintiffs.
Defendants’ petition allows this Court to review the Appellate
Division’s published decision holding that performance of job
3 duties by a watchdog employee may constitute CEPA-protected
activity.
For the reasons that follow, we affirm the Appellate
Division’s judgment that CEPA’s protections extend to the
performance of regular job duties1 by watchdog employees. In so
holding, we disapprove of the standard that the panel
articulated for assessing claims by such employees. The panel’s
attempt to add clarity to the assessment of claims by such
plaintiffs impermissibly results in adding to the burden for
this subset of CEPA plaintiffs. By its very terms, the
statutory cause of action created by CEPA applies equally to all
employees. There is no evidence of legislative intent to have
the Act operate any other way. Accordingly, we hold that there
can be no additional burden imposed on watchdog employees
seeking CEPA protection, unless and until the Legislature
expresses its intent to differentiate among the classes of
employees who are entitled to CEPA protection.
I.
A.
This matter arose upon the filing of plaintiff’s complaint
in the Law Division against Ethicon, Inc. (Ethicon) and Johnson
1 We refer to this concept in various ways -- including regular, normal, and usual job duties; prescribed duties; and core job functions -- as defendants have in this matter. 4 & Johnson, Inc. (J&J) (collectively defendants), alleging CEPA
violations under N.J.S.A. 34:19-3(a) and (c). Plaintiff Joel S.
Lippman, M.D.,2 alleged in his complaint, among other claims,
that his employment was terminated due to his whistleblowing
activities, which plaintiff identified as his actions in
reporting a number of products as dangerous and in violation of
the federal Food, Drug and Cosmetic Act, 21 U.S.C.A. §§ 301-
399f, and advising that defendants either recall the products or
perform further research.3 This appeal comes to us on a summary
judgment record; accordingly, we review the facts in the light
most favorable to plaintiff, the non-moving party in this
matter. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523, 540 (1995). The facts are set forth below as presented by
the parties and as described by the Appellate Division, Lippman,
supra, 432 N.J. Super. at 382-405.
Plaintiff was employed at Ethicon, a manufacturer of
medical devices used for surgical procedures, from July 2000
2 Plaintiff has a bachelor’s degree in biology from New York University, a medical degree from New York Medical College, and a master’s degree in public health from Harvard University School of Public Health.
3 Plaintiff also alleged that he was terminated because of his age, in violation of the Law Against Discrimination, N.J.S.A. 10:5-12(a); however, he voluntarily dismissed that claim after the trial court granted defendants’ motion for summary judgment on plaintiff’s CEPA claim.
5 until his termination. Prior to his work at Ethicon, he worked
from 1990 to 2000 at Ortho-McNeil Pharmaceutical (OMP), as
director of medical services and then vice president of clinical
trials. Both Ethicon and OMP are subsidiaries of J&J.
Initially plaintiff served at Ethicon as vice president of
medical affairs. In 2002, he was promoted to worldwide vice
president of medical affairs and chief medical officer of
Ethicon. His direct superior and the person to whom he reported
at Ethicon was Dennis Longstreet, the company group chairperson.
Longstreet reported to Michael J. Dormer, J&J’s chairperson for
the medical devices and diagnostic group. In 2005, Sherilyn S.
McCoy replaced Longstreet as Ethicon’s company group
chairperson.
As vice president of medical affairs, “plaintiff was
‘responsible for safety, ensuring that safe medical practices
occurred in clinical trials of [Ethicon’s] products; . . .
medical reviews, information from a medical standpoint; [and]
medical writing.’” Lippman, supra, 432 N.J. Super. at 388
(alterations in original). Consistent with those
responsibilities, plaintiff served on multiple internal review
boards for Ethicon. Generally stated, those boards addressed
strategic product activities and evaluated the health and safety
risks of products. As a member of those boards, plaintiff’s
function was to provide medical and clinical expertise and
6 opinions. Id. at 388-90. In short, Lippman was part of
Ethicon’s high-level policy decision making.
Of particular relevance in this matter, plaintiff was a
member of a quality board that “was created to assess the health
risks posed by Ethicon’s products and to provide ‘medical input’
in determining whether the company needed to take corrective
measures with respect to their products in the field.” Id. at
389. At times, recall of a product would become “necessary to
conform to the requirements of the particular regulatory agency
with jurisdiction, internal policy directives, and/or to protect
the health and safety of the patient[s].” Ibid. The quality
board could also take other types of actions, such as
“correcting a product in the field.” As structured within
Ethicon’s organization, the quality board was to be accorded
“‘the final say’” in deciding whether to take corrective action
regarding a product, “even in the absence of a directive from a
governmental agency.” Ibid. The quality board’s membership
included the head of research and development, the chief
financial officer, the head of operations, and the vice
president of quality and regulatory affairs. Members of the
quality board were “expected to express their view points from
their” area of knowledge or expertise. Ibid.
Plaintiff claims numerous instances in which he, in his
role on the internal review boards generally, and specifically
7 the quality board, objected to the proposed or continued sale
and distribution of certain Ethicon medical products. The
Appellate Division opinion recounts many in detail. See id. at
390-403. Those instances, as summarized, reflect that
plaintiff’s objections were based on his opinion that the
products were medically unsafe and that their sale violated
various federal and state laws and regulations. Thus, plaintiff
voiced concerns about the safety of various products and his
opinion, in some instances, that the particular product under
discussion should not go to market, that it should be recalled,
or that further research was necessary. Plaintiff claims, and
the record contains support, that plaintiff received “push back”
from other members of these boards and executives whose interest
and expertise aligned with the business priorities of Ethicon.
Needless to say, the committees were comprised of professionals
with their own judgments and opinions on the subjects under
discussion. Certainly, in this record, factual disputes exist
as to precisely what plaintiff, other board members, and
executives at Ethicon said and did during these disagreements.
Moreover, the record also indicates that Ethicon ultimately
followed many of plaintiff’s recommendations.
In April 2006, plaintiff was advocating the recall of DFK-
24, a product he believed was dangerous. Other Ethicon
executives were resistant to recalling the product, but Ethicon
8 eventually did so in late April or early May 2006. On May 15,
2006, Ethicon terminated plaintiff’s employment. According to
McCoy’s deposition testimony, “‘Dr. Lippman was terminated
because he had a relationship, an inappropriate relationship,
with someone who worked directly for him.’” Id. at 404. Based
on the record before us, “the alleged relationship came to
McCoy’s attention when an employee, who was unsatisfied with the
performance rating he believed plaintiff had given him,
mentioned [the relationship] to McCoy as a possible explanation
or motive for plaintiff’s alleged unfair assessment of his work
performance.” Ibid. McCoy acknowledged that plaintiff’s
purported romantic partner “was an employee in a department
under plaintiff’s authority during part of the alleged
relationship, but “she did not directly report to plaintiff at
any time.” Ibid. Further, McCoy admitted that she did not know
of “any prior case in which an Ethicon or J&J employee was
terminated (or even disciplined) for having a consensual
romantic relationship with an alleged subordinate,” and she was
unaware of any written J&J policy “prohibiting the type of
consensual romantic relationship that allegedly occurred between
plaintiff and the employee.” Id. at 404-05.
B.
Defendants filed a motion for summary judgment, seeking to
dismiss plaintiff’s CEPA action. The trial court granted the
9 motion. The court relied, in part, on the prior Appellate
Division decision in Massarano v. New Jersey Transit, 400 N.J.
Super. 474 (App. Div. 2008), in concluding that, because
plaintiff admitted “it was his job to bring forth issues
regarding the safety of drugs and products,” he “failed to show
that he performed a whistle-blowing activity” protected by CEPA.
The court denied plaintiff’s motion for reconsideration.
Plaintiff appealed, and the Appellate Division reversed in
a published decision. Lippman, supra, 432 N.J. Super. 378. The
panel rejected the trial court’s interpretation of protected
whistleblowing conduct under N.J.S.A. 34:19-3(c), which the
trial court held precluded a plaintiff who “[o]bjects to[] or
refuses to participate in” employer behavior as part of his or
her job duties from entitlement to protection under CEPA. See
id. at 381, 406-07, 409-10. The panel found the trial court’s
construction of the statute to be inconsistent with the broad
remedial purposes of CEPA. See id. at 381, 406-07. To the
extent that such a reading was implicitly espoused or endorsed
in Massarano, the Lippman panel expressly declined to follow it.
Id. at 381-82, 406.
In emphasizing the incongruity of a construction that cuts
out watchdog employees from CEPA’s remedial protective purpose,
the panel noted especially that watchdog employees are the most
vulnerable to retaliation because they are “uniquely positioned
10 to know where the problem areas are and to speak out when
corporate profits are put ahead of consumer safety.” Id. at
406-07. As further support that job duties are not outcome
determinative in a CEPA claim, the panel noted that CEPA’s
definition of an “employee” eligible for the Act’s protection is
broad and does not limit protection based on job title or
function. Id. at 407 (citing N.J.S.A. 34:19-2(b)).
Under the panel’s interpretation of protected
whistleblowing conduct, “[i]f an individual’s job is to protect
the public from exposure to dangerous defective medical
products, CEPA does not permit the employer to retaliate against
that individual because of his or her performance of duties in
good faith, and consistent with the job description.” Id. at
410. Applying that approach to the case at hand, the panel
found that genuine issues of material fact existed and held that
plaintiff had pled facts sufficient for a rational jury to find
that defendants violated CEPA when they terminated his
employment. See id. at 382, 408-09.
Importantly, the Appellate Division proceeded to articulate
a “paradigm” for a prima facie CEPA cause of action for
employees who perform watchdog activities. The panel built from
a model set forth by this Court in Dzwonar v. McDevitt, 177 N.J.
451, 462 (2003), and defined a watchdog employee as an “employee
who, by virtue of his or her duties and responsibilities, is in
11 the best position to: (1) know the relevant standard of care;
and (2) know when an employer’s proposed plan or course of
action would violate or materially deviate from that standard of
care.” Lippman, supra, 432 N.J. Super. at 410. The panel then
instructed that in order for a watchdog employee to present a
prima facie CEPA claim, the employee must demonstrate the
following elements:
First, the employee must establish that he or she reasonably believed that the employer’s conduct was violating either a law, government regulation, or a clear mandate of public policy. Second, the employee must establish that he or she refused to participate or objected to this unlawful conduct, and advocated compliance with the relevant legal standards to the employer or to those designated by the employer with the authority and responsibility to comply. To be clear, this second element requires a plaintiff to show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct. Third, the employee must establish that he or she suffered an adverse employment action. And fourth, the employee must establish a causal connection between these activities and the adverse employment action.
[Ibid. (second emphasis added).]
Although this four-prong test largely tracks the standard
for a prima facie CEPA claim that this Court articulated in
Dzwonar, supra, 177 N.J. at 462, the language emphasized above
is not part of the Dzwonar test. As the panel’s holding
recognized, under this additional requirement, unless a watchdog
12 employee refused to participate in the conduct, such an employee
must demonstrate that he or she “pursued and exhausted all
internal means of securing compliance.” Lippman, supra, 432
N.J. Super. at 410.
As noted, this Court granted the petition and cross-
petition filed in this matter. Lippman v. Ethicon, Inc., 217
N.J. 292 (2014).
II.
1.
In support of their petition, defendants assert that the
Appellate Division erred in holding that protected activity
under CEPA extends to watchdog employees’ regular job
responsibilities. They advance a three-prong argument: (1) the
statutory language of CEPA does not support the Appellate
Division’s broad holding; (2) the Appellate Division’s holding
contravenes previous appellate decisions; and (3) the holding
adversely impacts the “balance between the scope of protected
activity and the ability of employers to properly run their
business.”
First, defendants argue that CEPA’s language limits
protected activity to an employee’s conduct that is in
opposition to the employer. Specifically, defendants contend
that the “objects to” clause, which provides that employees must
13 “object[] to, or refuse[] to participate in any activity, policy
or practice” of the employer to receive CEPA protection,
N.J.S.A. 34:19-3(c), indicates that the statute protects only
employee activity that goes beyond the scope of the employee’s
job responsibilities. According to defendants, “[t]he employee
logically cannot . . . object[] or refuse[] to participate in
the very activity, policy or practice that he or she is helping
to formulate on behalf of the organization.” Applying their
construction to the matter at hand, defendants argue that all of
plaintiff’s alleged whistleblowing activities were in accordance
with his job responsibilities and, therefore, cannot be in
opposition to the employer as they argue the “objects to”
language requires. Defendants add that Ethicon heeded some of
plaintiff’s recommendations while he was on the quality board,
and that plaintiff never reported any of defendants’ putative
violations to outside authorities. Defendants maintain that
Ethicon terminated plaintiff’s employment because of his
relationship with a subordinate, not as a retaliatory measure.
Second, in respect of the assertion that the Appellate
Division’s holding is inconsistent with prior precedent,
defendants point to Massarano, supra, where, according to
defendants, an Appellate Division panel maintained that an
employee who reports conduct as part of his or her job duties is
not protected under CEPA. 400 N.J. Super. at 491. Defendants
14 assert that six unpublished Appellate Division decisions and
several federal district court cases follow the Massarano
decision. Accordingly, defendants argue that Massarano and its
progeny should have prevented the appellate panel in this matter
from broadly reading CEPA to include job responsibilities as
protected activity under the Act.
Finally, defendants advance a policy argument. They
contend that the Appellate Division’s decision upsets the
employee-employer balance between the scope of protected
employee activity and the ability of employers to effectively
run their businesses. Defendants rely on Pierce v. Ortho
Pharmaceutical Corp., 84 N.J. 58, 71 (1980), for the proposition
that protected activity should not interfere with a business’s
internal operations. Defendants argue that the appellate
holding in this case is at odds with that principle because it
will interfere with employers’ ability to make lawful and
justifiable personnel decisions about watchdog employees who
make erroneous or overly conservative judgments. According to
defendants, the Appellate Division’s decision in this matter
creates a class of employees against whom an employer cannot
take an adverse employment action without risking CEPA
liability, and it incentivizes employers to no longer entrust
employees with critical matters of legal compliance or public
safety.
15 2.
In response to plaintiff’s cross-petition for
certification, defendants continue to maintain that the
Appellate Division erred in expanding the scope of protection
under CEPA and further argue that plaintiff seeks to amplify
that error by removing an essential element of whistleblowing,
namely, showing that plaintiff objected by exhausting all
internal means. Defendants urge this Court to adopt a
construction of the “objects to” clause that will require
watchdog employees to exhaustively escalate an issue when
seeking to compel compliance with law or clear public policy in
order for an employee’s conduct to be deemed protected activity
under CEPA. Consistent with that position, defendants contend
that the Appellate Division simply was tailoring the statute to
the particular case, not imposing a higher burden on watchdog
employees. They also contend that any reliance on Fleming v.
Correctional Healthcare Solutions, Inc., 164 N.J. 90 (2000), is
misplaced because that case did not analyze the language or
scope of CEPA.
Plaintiff argues in support of the Appellate Division
holding that CEPA-protected conduct can include the ordinary job
duties of watchdog employees. Countering defendants’ three-
16 prong argument, plaintiff first relies on the plain language of
CEPA, which plaintiff asserts unambiguously extends protection
to all employees and is silent on any job-duty exception when
defining protected whistleblowing conduct. Plaintiff contends
that the plain language best indicates the Legislature’s intent.
Second, plaintiff argues that the Appellate Division’s
holding does not conflict with Massarano or its progeny.
According to plaintiff, Massarano held that the plaintiff’s CEPA
claim failed because she did not establish that she reasonably
believed that her employer violated a clear mandate of public
policy or that her employer acted with a retaliatory motive in
terminating her employment. Plaintiff maintains that
defendants’ misreading of Massarano stems from a single line of
dictum that is taken out of context. Moreover, plaintiff is
dismissive of Massarano’s “progeny” because those cases are
unpublished and have no precedential value, are factually
distinct, or fail to engage in a statutory analysis. Plaintiff
also asserts that this Court already has declined to add a “job
duties” exception to CEPA-protected conduct when it did not
acknowledge such an exception in Donelson v. DuPont Chambers
Works, 206 N.J. 243, 256-57 (2011).
Finally, in respect of defendants’ policy argument,
plaintiff contends that the Appellate Division’s holding strikes
the proper balance between employee protection and an employer’s
17 effective running of its business. As plaintiff argues,
watchdog employees protect employers from themselves by
deterring employer wrongdoing. Moreover, plaintiff maintains
that watchdog employees are often the only safeguard between
profit-driven corporations and an unknowing public. Adopting a
“job duties” exception, plaintiff argues, would weaken CEPA
because watchdog employees would have no legal protections, thus
eliminating the curb against “the corporate evils CEPA was
intended to prevent.” According to plaintiff, a job-duties
exception would unduly complicate CEPA claims by requiring
factfinders to determine whether a plaintiff’s alleged protected
conduct fell within his or her normal job duties.
2.
On the issue raised in his cross-petition, plaintiff argues
that although the Appellate Division correctly interpreted the
scope of CEPA to include watchdog employees, it erred in
imposing a requirement that those employees must exhaust all
internal means of compliance. Plaintiff asserts that such a
requirement is inconsistent with the plain language of CEPA for
the simple but forceful reason that the statute does not
distinguish among types of employees.
Rather, plaintiff contends that the Legislature intended
for CEPA to have a broad scope and to allow any whistleblower
employee to bring a retaliation claim. He points to decisions
18 of our Court to support that intention. Specifically, plaintiff
argues that the panel’s new requirement violates this Court’s
holding in Dzwonar, supra, 177 N.J. at 462, which established
the elements for a prima facie case of retaliatory action under
CEPA. Further, plaintiff maintains that the appellate panel’s
added requirement for a watchdog employee to establish a prima
facie CEPA claim is at odds with Fleming, supra, 164 N.J. at 97,
wherein the Court rejected the argument that an employer could
require an employee to exhaust the employer’s internal complaint
procedure prior to qualifying for CEPA protection.
C.
Amici Employers Association of New Jersey (EANJ), Academy
of New Jersey Management Attorneys (ANJMA), New Jersey Business
& Industry Association and New Jersey Civil Justice Institute
(collectively NJBIA), and the New Jersey Defense Association
(NJDA) reinforce defendants’ argument that CEPA does not protect
employees acting within the scope of their employment. We do
not repeat their arguments except to note a few points.
EANJ emphasizes that employees should be required to
respect the demands of the employer, unless those demands are
unlawful. ANJMA argues in favor of a higher standard for
watchdog employees to qualify for CEPA protection if they are to
be eligible for such protection at all. NJBIA views the instant
matter as presenting the question of whether CEPA protection
19 should be expanded, which it argues should be an issue for the
legislative branch, not the Judiciary. Finally, NJDA highlights
federal and state laws regulating product liability and argues
that compliance with those provisions requires exclusion of
watchdog employees performing job duties from CEPA protection.
Amici New Jersey Association for Justice (NJAJ), as well as
New Jersey Work Environment Council, New Jersey State Industrial
Union Council, and twenty-five other environmental, labor,
consumer, and community organizations (collectively NJWEC),
support plaintiff’s contention that CEPA protects employees’ job
responsibilities. We do not repeat all of their arguments
either except to note the following.
NJWEC maintains that CEPA’s language of “objects to[] or
refuses to participate in,” in the opening clause of N.J.S.A.
34:19-3(c), reinforces plaintiff’s position because an employee
would never be expected to participate in an activity unless it
fell within his or her job duties in the first place. It
provides multiple textual and statutory construction bases for
rejecting any exception for watchdog employees from CEPA
protection under N.J.S.A. 34:19-3(c). NJWEC also cites to
whistleblower statutes in other states that extend protections
to watchdog employees. Further, NJWEC notes that the additional
exhaustion requirement imposed on watchdog employees under the
Appellate Division’s opinion exceeds the notice requirement to
20 employees that the Legislature expressly imposed for other
subsections of N.J.S.A. 34:19-3. NJAJ addresses defendants’
policy arguments -- about the negative consequences of reading
CEPA to protect the job duties of watchdog employees -- by
noting that those employees remain obligated to bear the burden
of establishing a prima facie case of retaliatory action.
III.
In determining whether plaintiff is entitled to bring his
CEPA cause of action or, conversely, whether defendants should
be entitled to summary judgment based on their assertion that
plaintiff is not entitled to whistleblower protection for
performing his normal watchdog job duties, we must construe
CEPA’s language. In addressing this question of the Act’s
meaning, the appellate review is de novo. See Hodges v. Sasil
Corp., 189 N.J. 210, 220-21 (2007) (citing Balsamides v.
Protameen Chems., Inc., 160 N.J. 352, 372 (1999)).
The Legislature enacted CEPA in 1986. L. 1986, c. 105.
The Act is considered remedial legislation entitled to liberal
construction, its public policy purpose to protect
whistleblowers from retaliation by employers having been long
recognized by the courts of this State. Abbamont v. Piscataway
Twp. Bd. of Educ., 138 N.J. 405, 431 (1994);4 see, e.g.,
4 As explained in Abbamont, supra, CEPA is entitled to liberal construction, in part stemming from subsequent legislative 21 Donelson, supra, 206 N.J. at 257-58 (noting CEPA’s liberal
construction in light of its “broad remedial purpose”); Dzwonar,
supra, 177 N.J. at 463 (quoting Abbamont, supra, 138 N.J. at
431) (same); Estate of Roach v. TRW, Inc., 164 N.J. 598, 610
(2000) (quoting Barratt v. Cushman & Wakefield of N.J., Inc.,
144 N.J. 120, 127 (1996)) (same). After nearly two decades of
implementation, it is beyond dispute that the legislative
purpose animating CEPA is, as expressed initially in Abbamont,
supra, to “protect and encourage employees to report illegal or
unethical workplace activities and to discourage public and
private sector employers from engaging in such conduct.” 138
N.J. at 431. We thus turn to the specific language of CEPA at
issue in this matter.
N.J.S.A. 34:19-3 establishes that whistleblowing activity
is protected from employer retaliation. In relevant part, it
provides:
An employer shall not take any retaliatory action against an employee because the employee does any of the following [protected activities]:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business
commentary indicating that CEPA’s remedies were meant to be so construed. 138 N.J. at 431 (citing Judiciary, Law & Public Safety Committee, Statement on Assembly Bills No. 2872, 2118, 2228 (1990)).
22 relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, . . . or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or
(2) is fraudulent or criminal . . . ;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation . . . ; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, . . . or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal . . . ; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
[N.J.S.A. 34:19-3.]
An “employee” is defined in a separate section. An
“employee” is “any individual who performs services for and
under the control and direction of an employer for wages or
other remuneration.” N.J.S.A. 34:19-2(b). There are no
23 exceptions to that generic definition contained in the Act.
Moreover, our case law has taken an inclusive approach in
determining who constitutes an employee for purposes of invoking
the protection provided through this remedial legislation. See
D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 126-27
(2007) (extending CEPA protection, in furtherance of its
remedial goals, to independent contractors through application
of multi-factor test); see also Stomel v. City of Camden, 192
N.J. 137, 154-55 (2007) (applying D’Annunzio test in extending
CEPA protection to legal professional serving as public
defender); Feldman v. Hunterdon Radiological Assocs., 187 N.J.
228, 241 (2006) (urging courts to examine nature of plaintiff’s
relationship with party against whom CEPA claims are advanced
rather than relying on labels); cf. Lowe v. Zarghami, 158 N.J.
606, 617-18 (1999) (noting appropriateness of use of relative-
nature-of-the-work test to broaden employee status when public
policy underlying social legislation “dictate[s] a more liberal
standard” (citations omitted)).
To that statutory prescription of protected whistleblower
activity for individuals who merit the designation of
“employees” under CEPA, we add only the following general
background law.
Prior to the Appellate Division’s consideration of the
instant matter, our Court had identified, and reduced to a
24 simple list, the necessary elements for a plaintiff to establish
a prima facie claim under CEPA. See Dzwonar, supra, 177 N.J. at
462. Those four elements, which have not been altered to date,
bear repeating. To establish a prima facie CEPA action, a
plaintiff must demonstrate that:
(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;
(2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19- 3(c);
(3) an adverse employment action was taken against him or her; and
(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.
[Ibid. (citations omitted); see also Winters v. N. Hudson Reg’l Fire & Rescue, 212 N.J. 67, 89 (2012) (quoting same).]
Against that backdrop, we turn to consider whether the
Appellate Division correctly determined that plaintiff’s ability
to proceed with his CEPA claim was improperly cut short by the
trial court’s grant of summary judgment to defendants and
dismissal of the action.
IV.
25 As the matter before us requires construction of a
legislatively created cause of action, our job is to implement
legislative intent. N.J. Dep’t of Children & Families v. A.L.,
213 N.J. 1, 20 (2013) (citing Allen v. V & A Bros., Inc., 208
N.J. 114, 127 (2011)). In this instance, any fair analysis of
CEPA’s scope must “begin . . . by looking at the statute’s plain
language, which is generally the best indicator of the
Legislature’s intent.” Donelson, supra, 206 N.J. at 256 (citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
Starting with that plain language, by its very terms, CEPA
does not define employees protected by the Act as inclusive of
only those with certain job functions. An “employee” is “any
individual who performs services for and under the control and
direction of an employer for wages or other remuneration.”
N.J.S.A. 34:19-2(b) (emphasis added). As noted, our case law
has extended the reach of that definition, not restricted it.
See D’Annunzio, supra, 192 N.J. at 126-27.
Certainly, no opinion from this Court has read into CEPA’s
definition of an “employee” entitled to protection from
retaliatory action under N.J.S.A. 34:19-2(b), any restriction to
discrete classes of employees. To do so would seemingly
contravene two principles of statutory construction. One is not
to engraft language that the Legislature has not chosen to
include in a statute. See Murray v. Plainfield Rescue Squad,
26 210 N.J. 581, 596 (2012) (“We are charged with interpreting a
statute; we have been given no commission to rewrite one.”).
That principle has been invoked in the past when we have
declined to add restrictive language to CEPA. See Donelson,
supra, 206 N.J. at 261 (citing Mazzacano v. Estate of Kinnerman,
197 N.J. 307, 323 (2009)). Another principle requires that, as
remedial legislation, CEPA should be liberally construed. See
Dzwonar, supra, 177 N.J. at 463 (citing Abbamont, supra, 138
N.J. at 431, for proposition that, as remedial legislation, CEPA
should receive liberal construction to achieve “its important
social goal[s]”); see generally D’Annunzio, supra, 192 N.J. at
120 (citing cases in support of that longstanding guiding
principle instructing interpretation of CEPA).
There is simply no support in CEPA’s definition of
“employee” to restrict the Act’s application and preclude its
protection of watchdog employees. Defendants concede that
point, but nevertheless press their argument that plaintiff’s
claim should be dismissed because he is not entitled to
protection under N.J.S.A. 34:19-3, which defines protected
activity under CEPA. Their argument focuses on the Act’s
description of protected activity in N.J.S.A. 34:19-3(c) -- the
“objects to” clause. Upon review, that argument is unpersuasive
and the Appellate Division properly rejected it.
27 CEPA’s section that defines protected whistleblowing
activity, N.J.S.A. 34:19-3, does not, on its face, expressly
limit protection only to watchdog employees who object to
conduct outside the scope of their job duties, as defendants
argue. Instead, N.J.S.A. 34:19-3 begins broadly: “An employer
shall not take any retaliatory action against an employee
because the employee does any of the following . . . .” It
proceeds to set forth grounds for a CEPA claim in three
circumstances. They are when the employee:
(1) “[d]iscloses, or threatens to disclose to a supervisor
or to a public body an activity, policy or practice of the
employer . . . ,” N.J.S.A. 34:19-3(a);
(2) “[p]rovides information to, or testifies before, any
public body conducting an investigation, hearing or inquiry into
any violation of law, or a rule or regulation promulgated
pursuant to law by the employer . . . ,” N.J.S.A. 34:19-3(b); or
(3) “[o]bjects to, or refuses to participate in any
activity, policy or practice . . . ,” N.J.S.A. 34:19-3(c).
Defendants focus on subsection (c)’s use of the verbs of
“object[]” or “refuse[] to participate” in an activity.
According to defendants, those verbs are ambiguous and
implicitly indicate, in this context, that an employee must act
outside of his or her prescribed duties to engage in protected
whistleblowing activity. They reason that when an employee
28 expresses disagreement with an employer’s action or proposed
action within the context of his or her normal job duties, the
employee is acting on behalf and in service of the employer;
therefore, according to defendants, such an employee is not
“[o]bject[ing] to, or refus[ing] to participate in an[]
activity, policy or practice” of the employer as N.J.S.A. 34:19-
3(c) requires. Defendants’ argument, in effect, would have this
Court place an indirect limitation on the otherwise broad
definition of an employee found in N.J.S.A. 34:19-2(b). It
certainly is not directly stated as a limitation in N.J.S.A.
34:19-3(c).
However, the plain meaning of the word “object” does not
support defendant’s argument in favor of an implicit requirement
that employees must be acting outside the scope of their job
duties in order to engage in CEPA-protected conduct under
N.J.S.A. 34:19-3(c). See Donelson, supra, 206 N.J. at 256
(explaining that Court “must ascribe to the words used in CEPA
their ‘ordinary meaning and significance’”). Webster’s II New
Riverside University Dictionary defines “object” as: (1) “To
hold or present an opposing view”; and (2) “To feel adverse to
or express disapproval of something.” Webster’s II New
Riverside University Dictionary 810 (1994). That meaning is
neither ambiguous, nor indicative of a requirement that
employees go beyond or contradict their job duties in order to
29 “object[] to” an employer’s activity under subsection (c). In
construing this remedial legislation, we have repeatedly
instructed courts to give it a liberal reading. See D’Annunzio,
supra, 192 N.J. at 120. It would be wholly incongruent to
strain the normal definition of “object” into some implicit
requirement that limits a class of employee to whistleblower
protection only for actions taken outside of normal job duties.
Yet that is precisely what defendants seek through their
argument.
Although under subsection (c) the plaintiff must object or
refuse to participate in an activity, whether the objection or
refusal is part of his or her job responsibilities is not
mentioned. There is no language in subsection (c) that hints
that an employee’s job duties affect whether he or she may bring
a CEPA claim. If anything, the corollary verbiage of “refuse[]
to participate” in subsection (c) implies that CEPA-protected
conduct can occur within the course of an employee’s normal job
duties because it would be likely that the employee would be
asked to participate in employer activity within the course of,
or closely related to, his or her core job functions. Moreover,
the fact that subsection (c)(1) expressly provides protection
when “a licensed or certified health care professional” objects
to or refuses to participate in employer activity that
“constitutes improper quality of patient care” provides further
30 indication that CEPA-protected conduct may occur in the course
of one’s job duties: it would undoubtedly arise most frequently
within a core job function of a medical doctor to object to or
refuse to participate in employer conduct that he or she
reasonably believes “constitutes improper quality of patient
care.” N.J.S.A. 34:19-3(c)(1).
Attention to the overall structure of N.J.S.A. 34:19-3
further supports the conclusion that the “objects to” clause is
not meant to exclude an employee’s normal job responsibilities.
Neither subsection (a) nor subsection (b) state expressly, or
suggest implicitly, that an employee must be acting outside of
his or her usual duties to merit protection from retaliatory
employer conduct. Defendants’ argument about the “objects to”
language ignores subsections (a) and (b), and focuses instead on
the “object” verb used exclusively in subsection (c). Read as a
whole, it is inexplicable that the Legislature intended for
subsection (c) to carry an implicit “job duties” exception that
excludes watchdog employees, while the other subsections do not.
See State v. Sutton, 132 N.J. 471, 479 (1993) (finding that
court’s task is to harmonize individual sections and read
statute in way that is most consistent with overall legislative
intent).
In sum, examination of the Act’s text, structure, and
remedial nature provides compelling evidence against finding a
31 legislative intent to exclude watchdog employees from CEPA
protection under N.J.S.A. 34:19-3(c).
To the extent that defendants rely on Massarano, and the
trial court found support in that decision for its grant of
summary judgment in this matter, the argument is without solid
foundation. In Massarano, supra, the motion court had granted
summary judgment to the defendants, finding that no law, rule,
regulation, or clear mandate of public policy had been violated.
400 N.J. Super. at 486-87. The motion court in that matter
further held that there was no whistleblowing activity,
determining that the “plaintiff was merely doing her job as the
security operations manager by reporting her findings and her
opinion to [a supervisor].” Id. at 491. Although the Massarano
Appellate Division decision contains language that suggests that
a plaintiff who reports conduct as part of his or her job is not
entitled to protection under CEPA, the panel’s analysis is
premised on the conclusion that the defendants did not retaliate
against the plaintiff for reporting the disposal of the
documents. Ibid. Defendants’ further argument that Massarano
has been relied upon5 as support for recognition of a job-duties
5 Defendants cite to unpublished decisions that ostensibly have relied on Massarano for such a position. Unpublished opinions have no precedential value and are not to be cited in argument 32 exception to CEPA’s broad protection to employees is similarly
unavailing. Any such reliance misperceives the case’s essential
finding of no retaliation and results in an overextension of
Massarano’s significance. Moreover, we specifically disapprove
of any such extrapolation from the Massarano judgment.
Indeed, we note that decisions of this Court have indicated
only a contrary approach to CEPA coverage for individuals in
positions of responsibility for corporate compliance with law
and public policy.
In Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998), our
Court’s decision upheld a cause of action under CEPA for a New
Jersey employee who alleged that his employer retaliated against
him for objecting to a violation of a clear mandate of public
policy that threatened to harm citizens of Japan. Id. at 195-
96. The plaintiff, Dr. Myron Mehlman, was a toxicologist who
was Mobil’s director of toxicology as well as manager of its
Environmental Health and Science Laboratory. Id. at 166, 168.
Mehlman’s primary job responsibilities included “represent[ing]
Mobil on toxicology matters, and provid[ing] toxicologic and
regulatory advice for prudent business decisions.” Id. at 168.
(alterations in original) (internal quotation marks omitted).
to the courts of this State pursuant to the Court Rules. See R. 1:36-3.
33 While representing Mobil at an international symposium in Japan,
Mehlman learned that the benzene content of the gasoline at
Mobil’s Japanese subsidiary was too high. Id. at 169. Mehlman
so informed the Japanese managers and proceeded to insist that
the levels were dangerous and had to be reduced. Ibid. Upon
returning from Japan, Mehlman was placed on indefinite special
assignment and subsequently fired, allegedly because of a
conflict of interest between his responsibilities to Mobil and
his activities on behalf of his wife’s company. Id. at 170-71.
We had no hesitancy in recognizing that a cause of action
existed under CEPA based on the fact that “the employee objected
to a practice that he reasonably believed was incompatible with
a clear mandate of public policy designed to protect the public
health and safety of citizens of another country.” Id. at 165.
Our decision specifically noted that Mehlman’s responsibilities
were “broad and of international scope,” and included “approval
of protocols for and monitoring quality of toxicity testing” and
“informing Mobil of pending developments in toxicology
regulations that could affect Mobil’s worldwide business.” Id.
at 168. None of those factors were ever regarded as
disqualifying the plaintiff from advancing a CEPA claim.
Similarly, in Estate of Roach, supra, we addressed a
scenario involving a plaintiff who was the manager of the
defendant’s Business Ethics and Conduct Program and who was
34 substantially involved in implementing the company’s code of
conduct, which required employees to report possible code-of-
conduct violations. 164 N.J. at 602-03. After attempting to
report possible violations, the plaintiff was discharged from
employment. Id. at 604-06. Our judgment upheld the jury’s CEPA
verdict in favor of the plaintiff, and in our decision we
pointed to “the numerous improprieties alleged” by the plaintiff
against co-workers, the defendant company’s “sensitive position
as a federal defense contractor,” and the existence of a code of
conduct that required “strict compliance” for employees of the
company. Id. at 613.
In conclusion, we find no support in CEPA’s language,
construction, or application in this Court’s case law that
supports that watchdog employees are stripped of whistleblower
protection as a result of their position or because they are
performing their regular job duties. We therefore affirm the
Appellate Division’s judgment in this matter that reversed the
grant of summary judgment to defendants.
Having agreed with the Appellate Division that watchdog
employees are entitled to CEPA protection when performing their
ordinary job duties, we turn to the panel’s reformulation of the
elements for such a cause of action when brought by such
employees. The panel followed the Dzwonar paradigm for
35 establishing a CEPA cause of action, but added a caveat, as
follows:
[T]he employee must establish that he or she refused to participate or objected to this unlawful conduct, and advocated compliance with the relevant legal standards to the employer or to those designated by the employer with the authority and responsibility to comply. To be clear, this second element requires a plaintiff to show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.
[Lippman, supra, 432 N.J. Super. at 410.]
Although we do not doubt its intent to be helpful by adding
clarity to the proofs required for a watchdog employee’s CEPA
cause of action under N.J.S.A. 34:19-3(c), whose verbiage the
panel tracked, we are compelled to disapprove of the panel’s
formulation. Simply put, the panel has added to the burden
required for watchdog employees to secure CEPA protection under
subsection (c) by including an obligation nowhere found in the
statutory language.
For the same reasons cited earlier, courts should not
rewrite plainly worded statutes. It is not our job to engraft
requirements to a CEPA cause of action under subsection (c) that
the Legislature did not include. It is our role to enforce the
legislative intent as expressed through the words used by the
Legislature. In subsection (c), there is no exhaustion
requirement.
36 By way of contrast, where the Legislature intended to
impose an exhaustion requirement, it has said so clearly.
Through N.J.S.A. 34:19-4, the Legislature has required prior
notice to the employer and opportunity to correct the activity,
policy, or practice, in order for a putative whistleblower
plaintiff to obtain protection against retaliatory action for
disclosure made to a public body. Thus, a whistleblower
plaintiff pursuing a cause of action based on disclosure to a
public body under subsection (a) or (b) must demonstrate
compliance with N.J.S.A. 34:19-4’s particular exhaustion
requirement. The legislative silence on any such requirement
applicable to actions brought under subsection (c) is deafening.
Besides lacking support from CEPA’s text, the requirement
imposed by the panel is incompatible with Fleming, supra. 164
N.J. at 97 (rejecting argument that employer may insist on
exhaustion of internal complaint procedures for employee to be
eligible for CEPA protection). And, as one amicus rightfully
pointed out, the exhaustion requirement imposed by the Appellate
Division exceeds the obligation expressly imposed by the
Legislature under N.J.S.A. 34:19-4, which requires only notice
and opportunity to correct.
For all the above reasons, we modify the Appellate Division
judgment to the extent that it imposed an exhaustion requirement
not supported by the statute’s terms. We hold that CEPA imposes
37 no additional requirements on watchdog employees bringing a CEPA
claim unless and until the Legislature expresses its intent that
such employees meet a special or heightened burden.
The judgment of the Appellate Division is affirmed, as
modified. The matter is remanded for further proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON and JUDGE CUFF (temporarily assigned) did not participate.
38 SUPREME COURT OF NEW JERSEY
NO. A-65/66 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
DECIDED July 15, 2015 Chief Justice Rabner PRESIDING OPINION BY Justice LaVecchia CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY
AFFIRMED AS CHECKLIST MODIFIED/ REMANDED CHIEF JUSTICE RABNER X JUSTICE LaVECCHIA X JUSTICE ALBIN X JUSTICE PATTERSON -------------------- -------------------- JUSTICE FERNANDEZ-VINA X JUSTICE SOLOMON X JUDGE CUFF (t/a) -------------------- -------------------- TOTALS 5
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Cite This Page — Counsel Stack
Joel S. Lippman, M.D. v. Ethicon, Inc. (073324), Counsel Stack Legal Research, https://law.counselstack.com/opinion/joel-s-lippman-md-v-ethicon-inc-073324-nj-2015.