An elected official's Conscientious Employee Protection Act (CEPA) claim was recently dismissed after the court determined that he was not an employee, and therefore, could not receive protection under New Jersey's primary whistleblower statute. State Assemblyman Elect Carmelo Garcia believes that Hoboken Mayor Dawn Zimmer has developed a discriminatory political strategy.
Specifically, Garcia thinks that Zimmer is trying to remove minority members of Hoboken's Housing Authority Board from office and is creating a hostile work environment. As part of his fight against this alleged discriminatory practice, Garcia filed a lawsuit against Zimmer and the City of Hoboken in New Jersey Superior Court. His suit, however, was recent ly dismissed because he is not an employee of Zimmer or Hoboken.
In a late 2013 ruling, a judge stated that because Garcia does not work for Zimmer or Hoboken, he could not file a lawsuit against them under CEPA. Under CEPA an employee is protected from retaliation for unveiling his employer's illegal actions, so long as he has a good faith belief that his employer is violating the law. One prerequisite to making a CEPA claim, however, is that the plaintiff is an actual employee of the defendant. In this case, Garcia was determined to not be an employee, and therefore, lacked standing to bring a claim under CEPA. Unfortunately for Garcia, this was not the only problem in his lawsuit.
Although it is important to passionately fight for your rights in court there are limitations to how extreme this fight may get. For instance, a plaintiff's argument should not contain lies, gross exaggerations, inflammatory statements, or misrepresentations of the truth.
In his suit, Garcia described the city's actions as "ethnic cleansing." The court ruled that this term was inappropriately used, since "ethnic cleansing" usually refers to acts of mass genocide, not simple discrimination. Instead, Garcia's terminology was deemed excessive hyperbole and inflammatory, having no place in this type of lawsuit.
Since his claim was dismissed without prejudice, Garcia can modify his complaint and file his lawsuit again. He has stated that this is exactly what he plans to do. In his amended lawsuit, Garcia will likely not be able to evoke CEPA himself, but a member of the Hoboken Housing Authority Board who is actually an employee of Zimmer and the City of Hoboken likely could.