Adverse Action as Defined by CEPA

There have been a plethora of recent cases that define adverse actions in contradictory fashions.  Like the analysis under the LAD, “adverse action” will often be decided on a case by case basis.

CEPA defines adverse action as discharge, suspension, demotion, or other adverse employment action taken against an employee in the terms and conditions of employment.  It is this third category that lends to contradictory interpretation by the courts.

The definition of adverse action was narrowly construed by Judge Axelrad in the New Jersey Appellate Division in the case of Hancock v. Borough of Oaklyn, 347 N.J.Super. 350, 360, 790 A.2d 186, 193 (App.Div.2002).  In Hancock, the Court found that an adverse action was an action that either impacted the employee’s “compensation or rank” or an action that is “virtually equivalent to discharge” in order to give rise to the level of a retaliatory action required for a CEPA claim.  The court found that having to perform certain duties and go through disciplinary hearings, although “mildly unpleasant,” did not rise to the level of an adverse action.  This analysis was followed in Borawski v. Henderson, 265 F. Supp. 2d 475 where the New Jersey District Court found that the denial of phone use and a possible lengthy suspension did not constitute an adverse action.

Subsequent cases expanded CEPA’s scope to allow that an adverse action could occur by looking at more than one discrete action.  However, this still allowed for ambiguity and inconsistent results as to what actions rise to the level of an adverse action.

In a 2003 New Jersey Supreme Court case, the court ruled that adverse action may include many separate, but relatively minor, instances of behavior directed against an employee that may not be actionable individually, but that combine to make up a pattern of retaliatory conduct. Green v. Jersey City Bd. of Educ. ,177 N.J. 434, 448 (2003).

Similarly, in Guslavage v. City of Elizabeth, 2004 WL 3089743, the court defined adverse action broadly.  In this case, a sergeant, in the Police Department, was transferred internally to a lesser unit, after engaging in CEPA protected activity.  The court found that the transfer was an adverse action.

In Nardello v. Township of Voorhees, 277 N.J. Super. 428, the court found that a series of minor instances could constitute adverse action by considering the aggregate impact of each minor instance.  See also Beasley v. Passaic County, 377 N.J. Super. 585 (App. Div. 2005) (“A pattern of conduct by an employer that adversely affects an employee’s terms and conditions of employment can qualify as retaliation under CEPA.”).  See, Isetts v. Borough of Roseland, 2005 WL 2334363 (Law Div. 2005), (comprehensive analysis of adverse action in LAD and CEPA cases).

Thus, just when it appeared that the Courts were providing a broad interpretation of what constitutes an adverse employment action, the Appellate Division handed down a ruling that provided a narrow interpretation to what constituted an adverse employment action.  Klein v. University of Medicine and Dentistry of New Jersey, 377 N.J.Super. 28 (App. Div. 2005).  In this case, Dr. Klein lost clinical privileges and had to be supervised by another physician after engaging in CEPA protected activity.  The court found that UMDNJ’s responses were not severe enough to constitute an adverse employment action.  See also Yurick v. State of N.J. (inadequate funding did not constitute an adverse action).

Thus, the issue of what constitutes an adverse action is still one that must be examined closely to survive summary judgment.

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