Appellate Court Overturns Dismissal in County Whistleblower Suit

TRENTON – An Appellate Court decision July 17 revived a whistleblower lawsuit filed against Cape May County and Gerald Thornton, director of the Board of Chosen Freeholders.
A trial court dismissed the suit, filed by former Cape May County purchasing agent Kim Allen. She alleged she lost her job in retaliation for lawful action when her position was not renewed in August 2014. 
She alleges county officials did not offer her a third three-year term due to her pointing out potentially illegal actions within the county, which would be protected from retaliation under the Conscientious Employee Protection Act (CEPA), better known as whistleblower protection.
Superior Court Judge Christopher Gibson dismissed the complaint. He decided Allen failed to demonstrate the loss of her job was over her protected whistleblower activity, beyond her belief that it was so. Allen appealed the dismissal.
The recent appeals court decision sends the matter back for a jury, which will not take place until the county has a chance to appeal. The matter is likely to go to the state Supreme Court, with attorneys representing the county promising an aggressive appeal.
“We are confident that the Supreme Court will affirm because this is a pretty egregious case of retaliation,” said Sebastian Ionno, the Pitman-based attorney representing Allen.
If the Supreme Court sides with Allen’s position, he plans to get Allen her former job back, along with a judgment for damages and emotional distress. He declined to put a number on the damages, other than “substantial.”
The decision divided the three-judge panel, unusual for an appeals court decision, with Judge Jose Fuentes and Judge Scott Moynihan writing the majority opinion and Judge Allison Accurso dissenting. That means the Supreme Court will have an obligation to take up the matter. That process could take about 18 months, according to Ionno.
Thornton declined to comment on the matter.
“My only comment is that our attorney will comment,” he said.
Attorney Russell Lichtenstein, representing Cape May County in the suit, said two of the judges on the three-member appeals panel got the matter completely wrong. 
“On the other hand, in an extensive and well-reasoned dissent, the third judge of the panel, after going through a comprehensive analysis of the facts and law came to the same correct conclusion arrived at by Judge Gibson in Cape May County – that plaintiff’s complaint lacked legal and factual merit and should be dismissed,” Lichtenstein said in a prepared statement.
The Atlantic City-based attorney promised an aggressive appeal to the Supreme Court.
“We are overwhelmingly confident that this spurious claim will ultimately be dismissed and will no longer be a burden on the taxpayers of Cape May County,” Lichtenstein wrote.
Allen was appointed to her first three-year term as purchasing agent in 2008 and was reappointed in 2011. Her term expired in 2014. Before that, Thornton became director of the freeholder board.
Allen cites three instances of protected conduct which she alleges cost her job.
In one, Jeffrey Lindsay, who was county director of human resources, asked Allen if a contractor he preferred could submit an amended bid proposal after bids were opened, which would have better fit the county’s request for proposals (RFP). She said that would be illegal and the change was not made.
Another related to pharmaceutical supplies for the county nursing home, in which the administration wanted to take into account its negative experience with the current contractor.
In that instance, according to the court decision, Allen steadfastly argued that prior experience could not be taken into account. According to the court’s decision, Allen discussed her concerns with Lindsay’s actions with a law firm investigating county issues, including the pharmaceutical supply contract.
The third instance relates to how the county contracted with the law firm for an investigation. On April 16, 2014, she told the county’s assistant counsel that the contract was not lawful because it did not include the proper language stating that it was not awarded through the normal fair and open process. The contract was considered an emergency. According to the court documents, the resolution was amended but the agenda for the freeholder meeting was not.
Allen also expressed concern that the law firm had not completed disclosure of political contributions on time.
In the court documents, a picture of Allen emerges as a stickler for policy who sometimes ruffled the feathers of other employees and officials.
The decision cites a deposition from former county counsel Barbara Bakley-Marino, described as a friend of the plaintiff, in which she states: “She would follow the absolute letter of the law, even if it killed everybody else.”
Thornton told the court that he went back and forth on reappointing Allen for five or six months before making the decision not to reappoint her. He’s quoted in the decision describing her as a mediocre employee.
If the county can show there were other reasons for the dismissal, aside from the alleged retaliation, that could be a reason to dismiss. But there was no record of reprimand or dissatisfaction with her performance, according to the decision, and Bakley-Marino testified that Allen’s performance was excellent.
The decision cites Thornton’s relationship to two county employees, his wife, Linda Thornton, listed in the suit as the administrator of the county nursing home, (she has since retired),  and his stepson, Lindsay (see related analysis here).
“Evidence of the familial and work-related connections between Thornton and Lindsay cannot be ignored. Lindsay was Thornton’s stepson. Lindsay’s mother, the administrator of the county facility involved in the pharmaceutical RFP investigation, was married to Thornton,” reads the decision. 
The website of the Crest Haven Nursing and Rehabilitation Center lists Jennifer Hess as the administrator. The nursing home falls under the direction of Freeholder Jeffrey Pierson.
In her dissenting opinion, Accurso describes Allen as a political appointee. She agreed with the trial judge.
“Plaintiff’s assertion that Thornton retaliated against her for her criticism of his stepson Lindsay and her advice on the pharmacy RFP for the county nursing home of which his wife was the administrator is only her speculation without any factual support in the record,” the dissenting opinion reads. “No fair-minded jury, in my view, could find for plaintiff on her CEPA claim on the competent evidence in this record.”
In a moment of whimsy, the court majority decision cites a story from the folktale Pinocchio.
“Often those who act as the conscience of the community are disfavored: there was a reason Pinocchio bludgeoned Jiminy Cricket with a hammer,” it reads.
To contact Bill Barlow, email bbarlow@cmcherald.com.