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September 2017

Gordon & Rees New Jersey Team Obtains Full Defense Verdict in Whistleblower Case

New Jersey partner Michael Hanan and attorney Jeremi Chylinski achieved a full defense verdict after a bench trial (the plaintiff voluntarily waived his right to a jury), for a medical device manufacturer/distributor in New Jersey State Superior Court, Passaic County.  A former employee sued, filing a one-count CEPA Whistleblower retaliatory discharge complaint. 

The plaintiff, proceeding pro se, alleged that he engaged in protected activity when he “threatened” to quit if the company did not correct regulatory issues -- and was terminated as the result.  In fact, according to at least four participants during this meeting -- including the President, the CFO, and the plaintiff’s direct supervisor – the plaintiff never brought up any alleged “regulatory issues”; instead, he quit, directly after being pressed for information about the cost of manufacturing a medical device.  All four defense witnesses attested he stated at the meeting that (refusing to accept accountability for his failure to do his job) he could ‘not take the pressure’ and that he was ‘giving his two weeks’ notice’; and that he then stormed out of the executive meeting mid-way through it.  All four defense witnesses testified this was not the first meeting in which he was asked for this information, and to the contrary he was repeatedly asked for it over the prior several months, repeatedly failing to provide it.  All four of them further testified that after he left the meeting they discussed how to address the plaintiff’s insubordination and job failure -- and rather than wait out his two weeks’ notice, they agreed it was best to accept his resignation, effective immediately. 

Since at the summary judgment stage, the court could not weigh the credibility of the four affiants’ version that the plaintiff quit, against that of the plaintiff’s version that he merely ‘threatened’ to quit while engaging in whistleblowing activity, trial to resolve this factual dispute ensued.  While all four defense witnesses testified consistently and credibly, the plaintiff lied so much, that he lied about lying. 

At one point, when being confronted about his own contradictory testimony about whether he took a three-week, unapproved/unscheduled leave while working for his subsequent employer to: “attend to a family emergency to care for his ill sister” in Australia and New Zealand; or (as he also testified under oath) to watch the World Cup of Cricket with his buddies in those two countries, he blamed it on confusion.  (He was, of course, about to be fired for his three-week unexcused absence, but instead resigned; and then he falsely testified that instead he left that employer due to “downsizing”).  He alternatively conceded that he lied under oath, stating that there was no family emergency and that he did in fact go to Australia and New Zealand with his friends to watch Cricket, and lied about a false ‘family emergency’ to try to save his job.

At another point, when being confronted about the fact that he applied for employment elsewhere just days before his abrupt resignation, the plaintiff refused to concede the fact.  While on the stand during cross examination he frantically leafed through his employment application – testifying that all of the information on it was 100 percent accurate -- except the date that he applied, clearly stating he applied three days before his abrupt, October 31 resignation.  He defiantly testified that "the date of the application was wrong!" He actually applied on October 31 – just after “being terminated” – declaring that in fact, as everyone could see, “October 31” was contained on the third page of the application. 

Unfortunately for the plaintiff, the date read: “October 31, 2018” – the expiration date of his driver’s license.  (Indeed, just next to that information was the question “do you have a valid drivers license?”; and “when does your license expire?” – which the plaintiff somehow overlooked).  While the plaintiff was still on the stand, we asked him to pull out his wallet and tell the judge what the expiration date on his driver’s license stated.  Reluctantly, he did so, and answered “October 31, 2018.”

The Court then adjourned as the bailiff, the court reporter and the law clerks all stood shaking their heads with jaws agape, presumably in a state of disbelief that someone could actually lie with such reckless abandon.  At closing arguments, the plaintiff ended his argument by asking the judge “what did I do wrong?  I still don’t know”; and the judge then swiftly ruled against him from the bench. 

Jeremi L. Chylinski
Michael S. Hanan