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Divided NJ Supreme Court Returns Allen Case to Trial Court

Court Gavel Image (2020) - USE THIS ONE

By Bill Barlow

COURT HOUSE – The New Jersey Supreme Court weighed in on a lawsuit by Kim Allen, Cape May County’s former purchasing agent, sending a portion of the suit back to the trial court for further consideration and a potential jury trial.  
It’s the latest step in a casethat has been winding its way through the New Jersey courts for years.
In a May 12 decision, a divided court instructed a trial court to, again, look at the facts surrounding one of the incidents included in Allen’s lawsuit against the county.
At issue is whether Allen’s actions, in connection with a public contract, were protected under the Conscientious Employees Protection Act, better known as the whistleblower law, and whether those actions led to her losing her county job.
The court agreed with lower courts on a second allegation included in the original suit, finding no evidence showing her report that was critical of another contract with a law firm played a role in the county’s decision not to renew her employment.
In summer 2014, the county decided not to offer Allen a new, three-year term as the county purchasing agent, a post she began in 2008. Her contract was renewed in 2011. 
Before her contract was up for renewal again, Gerald Thornton became the director of the county governing body, a position he still holds. 
According to a previous Herald report, Allen earned $72,393 in the job at that time.
Court documents include testimony that Allen was an exceptional employee and a stickler for detail. Thornton told the court she was merely mediocre.
After being passed up, Allen sued, alleging she lost the job in retaliation for actions granted whistleblower protection, under the act the court abbreviates as CEPA.
The Supreme Court looked at two incidents, according to the decision.
One relates to how officials hired a law firm to represent the county in workers’ compensation claims. 
Allen testified that the county preferred firms to submit bids with a quote per case, but would also consider hourly rates.
She testified that Jeffrey Lindsay, Thornton’s stepson, who became the county director of human resources, preferred the firm Capehart &Scatchard for the contract, but the firm only included an hourly rate in its quote.
Lindsay Feb. 25, 2014, asked whether the firm could fax a new page to supplement its bid. Allen told Lindsay that would be illegal. 
Elsewhere, the court documents describe Allen as “totally unnerved” by the question, interpreting it as a statement of intention to circumvent bidding rules.
In the end, the bid was not changed. Elsewhere in the Supreme Court decision, the incident is described by county testimony as an example of someone asking a procedural question.
For Allen to show she wrongfully lost her job, the incident must clear four hurdles: She must show that she reasonably believed her employer was breaking the law, she “performed a ‘whistleblowing’ activity,” she faced adverse action connected to her employment, and that a causal connection exists between the whistleblowing and the action against her.
If that is the case, the county would have the burden of proof to showthere were other reasons for Allen’s dismissal, and that once established, those reasons are more than just a pretext.
The Supreme Court instructed the trial court to determine if there is evidence that the situation meets the criteria under the law, and if so, to determine if the county has met the burden to prove the decision not to reappoint her was made for reasons other than retaliation.
Trial Judge Christopher Gibson decided that Allen failed to present evidence, beyond her own belief, that she was not reappointed in retaliation. The trial court originally granted a summary judgment to the county.
However, in July 2019, an appeals court overturned that decision (http://bit.ly/2JRfcN0). The county appealed that reversal, which is what brought the matter to the state Supreme Court.
There was another incident included in the Supreme Court’s decision, relating to a 2014 investigation of allegations brought by Barbara Bakley-Marino, the county attorney. The assistant county counsel advised the county government to hire an outside firm with no connection to the county government to investigate the matter.
Allen reported concerns about the way the firm, Ballard Spahr, was hired to undertake that investigation, according to the court documents. She also told the investigators from Ballard Spahr about her concerns over the process for hiring Capehart & Scatchard.
That investigation found it was appropriate for Lindsay to ask about a process in which he was unfamiliar.
In her suit, Allen alleged her complaints about the Ballard Spahr contract also contributed to her not being reappointed. The trial court dismissed that portion of the case, and the Supreme Court agreed, stating the decision not to reappoint her was made before she sent an email about that contract.
“Moreover, there is no evidence that when Thornton decided that plaintiff’s contract would not be renewed, he was aware of either of plaintiff’s previous comments to other county employees about the retention of Ballard Spahr,” reads the decision.
For the Capehart & Scatchard portion, the Supreme Court instructed the trial court to hold additional hearings to determine, again, if summary judgment is warranted. If not, the decision states the matter should go to trial.
Two judges joined a dissenting opinion, arguing the matter should not be remanded. Instead, the facts of the claims relating to the Capehart & Scatchard proposal should be settled in a trial.
“The contested issues of fact must be decided by a jury,” the dissent reads.
Justice Anne M. Patterson wrote the opinion for the majority, an opinion joined by Chief Justice Stuart Rabner and Justices Faustino Fernandez-Vina, Lee A. Solomon, and Fabina Pierre Louis. Justice Barry Albin wrote the dissenting opinion, which was joined by Justice Jaynee LaVecchia.
To contact Bill Barlow, email bbarlow@cmcherald.com.

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