The Appellate Division Affirms Value of Disciplinary Records

The Appellate Division Affirms Value of Disciplinary Records

In a recent unpublished opinion, McCaw v. Vernon Township Board of Education, the New Jersey Appellate Division affirmed the trial judge’s dismissal of a school custodian’s whistleblower retaliation claim.  Importantly, the Appellate Division’s opinion reaffirmed the importance of documenting employee performance issues as they arise, rather than after a lawsuit is filed.

In McCaw, the employee alleged that he was terminated in retaliation for filing a complaint with the New Jersey Department of Labor.  In 2007, the employee filed a complaint with the Department of Labor over concerns about a contractor whose work was releasing silica dust in a school.  Over five years later, on March 12, 2012, the Board of Education terminated his employment for “repeated failure to follow administrative directives and your repeated failures to perform the requirements of your job.”  In particular, the Board of Education ostensibly terminated the employee based on two incidents in March 2012 where he failed to lock the school doors at the conclusion of his shift.

The employee challenged the Board’s decision to terminate his employment, alleging a violation of the New Jersey Conscientious Employee Protection Act (“CEPA”).  Among other things, the employee alleged that he was terminated in retaliation for filing a complaint with the Department of Labor.  The trial judge dismissed the employee’s claim, and the Appellate Division affirmed.  The Appellate Division found that there was no causal connection between the employee’s Department of Labor complaint and his termination because the employee received annual salary increases, was reappointed annually, and suffered from only occasional criticisms of his job performance and conduct.  Moreover, the Appellate Division found that the real reason for the employee’s termination was not retaliation, but rather his failure to lock the school doors on two separate occasions.  Accordingly, the employee’s CEPA claim was dismissed.

It was extremely helpful that the Board of Education could base its employment decision on documented instances of the employee’s failure to meet his job standards.  If you require assistance with an employee disciplinary matter, termination decision, or any other labor and employment issue, please do not hesitate to contact one of our Employment and Labor Law attorneys: Tom Ryan, Esq. (tryan@lcrlaw.com); Ursula Leo, Esq. (uleo@lcrlaw.com); Jessica Jansyn, Esq. (jjansyn@lcrlaw.com); or Michael Darbee, Esq. (mdarbee@lcrlaw.com).  Our attorneys can also be reached by phone at (973) 729-1880.