By: Jennifer Vorih, Esq. and Ty Hyderally, Esq.
In a January 7, 2021 decision, the New Jersey Appellate Division reversed the summary judgment dismissal of Anthony Falco’s whistleblowing claim against the City of Hoboken, Hoboken’s former Mayor, Dawn Zimmer, and Jon Tooke, Hoboken’s former Director of Public Safety. The trial court granted summary judgment to the City of Hoboken, dismissing Falco’s entire complaint with prejudice, in addition to barring Falco’s expert report and earlier dismissing three counts of his complaint and limiting the prosecution of one count. Falco appealed all these decisions; the Appellate Division affirmed all except the dismissal of Falco’s claims under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6- 1 to -2.
Mr. Falco served as Hoboken’s Chief of Police from 2009 until his retirement in 2014. During that time, he had several disagreements with Dawn Zimmer, who first became Acting Mayor, and then was elected Mayor of Hoboken, in 2009. In 2010, Falco wrote to the Hudson County Prosecutor regarding several requests he had received from Hoboken’s then-Public Safety Director, Angel Alicea, for internal police records which Falco believed to be confidential. Jon Tooke, who served as Director of Public Safety for Hoboken beginning in 2011, testified that Falco had thus made “complaints” to the County Prosecutor. Alicea also sued Hoboken and Zimmer in 2011; Falco testified favorably for Alicea, who was awarded over a million dollars at trial and eventually settled with the defendants. In addition, Falco brought a federal lawsuit against Hoboken, Zimmer, and Tooke in 2013.
In granting summary judgment to Defendants as to Falco’s CEPA claim, the trial court held that Falco had not engaged in any whistleblowing activity, but that Falco had merely asked the County Prosecutor for an advisory opinion. Further, the trial court did not address Falco’s claims that his federal lawsuit and his testimony in Alicea’s lawsuit were whistleblowing activities. The Appellate Division found that Falco’s letter to the Hudson County Prosecutor was a whistleblowing activity, as it “questioned whether his employer’s conduct was contrary to a law, rule, regulation, or clear mandate of public policy.” The Appellate Division also found that Falco, in his federal lawsuit and in his testimony in Alicea’s trial, “challenged his employer’s conduct.”
The Appellate Division opined that the trial court had not fully addressed the issues of whether Falco suffered an adverse employment action and whether there was a causal connection between Falco’s whistleblowing activities and such adverse employment action. Falco alleged that Hoboken had “denied or withheld his benefits for sick leave incentive, uniform allowance stipends, stand-by court time, and terminal pay because of his whistleblowing activities.” The Appellate Division held that Falco had met his burden of proving these two elements, but took great pains to make clear that it did “not suggest that defendants withheld or denied Falco’s benefits.” Rather, the Appellate Division held that there were “material disputed facts in the record,” regarding those elements, and allowed Falco to present those claims at trial.
The Appellate Division also reversed summary judgment as to Falco’s NJCRA claim, and left open the question of whether Falco must waive his right to remedies under his NJCRA claim in order to pursue his CEPA claim.
While this opinion thus leaves open some questions, one thing is clear: Anthony Falco demonstrated sufficient disputes of material fact that a rational fact finder could rule in his favor, and this former Chief of Police gets another shot at proving his whistleblowing claim.
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