Nardello v. Township of Voorhees
873 A.2d 577, 377 N.J. Super. 428 (2005)
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Rule of Law:
A series of separate but relatively minor instances of retaliatory behavior directed against an employee, which may not be actionable individually, can collectively constitute an adverse employment action under New Jersey's Conscientious Employee Protection Act (CEPA).
Facts:
- In 1999, Lieutenant Jeffrey Nardello was instructed to perform an internal investigation where Deputy Chief John Prettyman indicated that Chief Keith Hummel wanted Nardello to find incriminating evidence against the subject officer.
- Nardello insisted on conducting a fair investigation, after which he claims he was denied permission for firearms instructor training and was coerced into resigning as leader of the SWAT team in September 2000.
- In September 2000, Nardello investigated an officer for attending an adult sex party. Believing the subsequent discipline violated the officer's civil rights, Nardello reported the matter to the prosecutor's office.
- After Nardello informed his superiors that he had contacted the prosecutor, some of his job responsibilities were transferred to another officer.
- In October 2000, after Nardello filed a written complaint about violations of department personnel procedures, Chief Hummel threatened him with an insubordination charge and suggested he was mentally unstable.
- In January 2001, Nardello reported a potential cover-up involving a K-9 dog bite incident to the Camden County Prosecutor's Office.
- Following his report of the K-9 incident, Nardello was removed from the detective bureau, stripped of all supervisory authority, and assigned demeaning tasks for his rank, such as performing toilet maintenance and installing an alarm.
Procedural Posture:
- Jeffrey Nardello filed a lawsuit against the Township of Voorhees and several of its police chiefs in the New Jersey Superior Court, Law Division, alleging violations of the Conscientious Employee Protection Act (CEPA).
- The defendants filed a motion for summary judgment, arguing that Nardello had not suffered a cognizable adverse employment action.
- The Law Division (trial court) granted the defendants' motion for summary judgment, dismissing Nardello's complaint.
- Nardello, as plaintiff-appellant, appealed the trial court's grant of summary judgment to the Superior Court of New Jersey, Appellate Division.
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Issue:
Does a series of relatively minor, non-economic employer actions, that do not include discharge, suspension, or demotion, collectively constitute a 'retaliatory action' under New Jersey's Conscientious Employee Protection Act (CEPA)?
Opinions:
Majority - Winkelstein, J.A.D.
Yes. A series of separate but relatively minor instances of behavior that may not be actionable individually can combine to make up a pattern of retaliatory conduct that constitutes an adverse employment action under CEPA. Citing dicta from the New Jersey Supreme Court in Green v. Jersey City Bd. of Educ., the court emphasized that CEPA is remedial legislation that should be construed liberally to effectuate its goal of protecting whistleblowers. While Nardello was not discharged, suspended, or demoted, and suffered no reduction in pay, a rational jury could conclude that the combination of actions taken against him—such as being removed from the detective bureau, stripped of supervisory duties, and assigned demeaning tasks—demonstrates a pattern of retaliatory conduct prohibited by the statute. Therefore, genuine issues of material fact exist as to whether he suffered a retaliatory action, making summary judgment for the employer inappropriate.
Analysis:
This decision significantly clarifies the scope of 'retaliatory action' under New Jersey's CEPA, establishing that a 'death by a thousand cuts' theory can be legally viable. By endorsing the view that a pattern of minor negative actions can collectively constitute an adverse employment action, the court lowered the threshold for plaintiffs to survive summary judgment. This precedent makes it easier for employees who suffer from a hostile work environment or a series of lesser punishments—short of termination or demotion—to bring a claim. Consequently, employers face greater risk if they engage in subtle, cumulative forms of retaliation against whistleblowers.
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