Earlier this month, the New Jersey Appellate Division upheld the dismissal of hostile work environment claims brought by a job applicant for a school security positon, who was also a current district employee, under New Jersey’s Conscientious Employee Protection Act. The claims were dismissed because the applicant-employee failed to adequately raise his concerns about corruption in regard to hiring for the applied-for position.

In Daniels v. High Point Board of Education, the plaintiff, a security officer in the district, applied for a newly created position, director of safety and security. Ultimately, plaintiff was not interviewed for the position and another candidate was selected. Plaintiff did not raise any concerns about the circumstances leading to the creation of the position at any time during the hiring process.

However, in his later claims, the plaintiff alleged that the listed requirements for the position were so particular that only the successful candidate could have possibly fulfilled them.  The successful candidate was a neighbor to a then-board member. The plaintiff claimed that this relationship ultimately led to corrupt practices behind the scenes and allegedly the creation of a position specifically for the successful candidate.

The plaintiff further alleged that after the new director was hired, plaintiff was then demoted to a part-time position and his salary was reduced. Plaintiff later resigned from his job in the district.

The plaintiff brought hostile work environment claims that the hiring was allegedly in violation of the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1-8. CEPA prohibits covered employers, including school districts, from retaliating against an employee for what is commonly called “whistle-blowing activity.”

Under CEPA, “whistle-blowing activity” includes, among other things:

  • disclosing, or threatening to disclose, an employer’s activity, policy or practice that an employee reasonably believes is in violation of law, fraudulent, or criminal, or
  • objecting to, or refusing to participate in, an employer’s activity, policy, or practice that an employee reasonably believes is fraudulent, criminal, or in violation of law or public policy.

Generally, the employee must provide prior notice to the employer of the employee’s concerns in order to invoke CEPA’s protections. However, the court determined that the plaintiff essentially filed an application for a position which he did not obtain, then sought to transform that application into a “whistle-blowing” activity. The court concluded that this activity fell short of the plaintiff’s obligation to inform his employer of fraudulent or criminal activity.

The Appellate Division affirmed the trial court’s dismissal of the plaintiff’s claims, finding that merely submitting an application for a posted position does not constitute “whistle-blowing” activity.  Though the plaintiff asserted that his job application was his objection to what he reasonably believed was corrupt hiring practices, the court found that the plaintiff did not actually inform the school or district of his concerns. Therefore, there was no notice to the district that would allow the plaintiff’s actions to be considered “whistle-blowing activity” in this case.

School districts are encouraged to discuss this matter as well as CEPA’s requirements with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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