Allegations and plaintiff's certification that mayor controlled day-to-day activities of township in which plaintiff was employed were sufficient to draw reasonable inference that mayor was plaintiff's employer and defeat 12(b)(6) motion to dismiss.

The plaintiff, the tax collector of Weehawken, New Jersey, alleged that he was subjected to six acts of retaliation by his employers, the Township of Weehawken, its mayor and its town manager, after he submitted a certification in support of a civil rights lawsuit which was previously filed by a different town employee against the same defendants. The plaintiff thereafter filed a separate whistleblower action against the Weehawken Township defendants under New Jersey’s Conscientious Employee Protection Act (“CEPA”) and the New Jersey Civil Rights Act. The matter was venued in U.S. District Court for the District of New Jersey. The defendants filed a motion to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing, among other things, that the mayor was not an “employer” for the purposes of CEPA because the mayor’s job description barred him from influencing decisions regarding the plaintiff’s compensation. Viewing all allegations in the complaint as true under the standard of review pertaining 12(b)(6) motions, and noting that the complaint and certification alleged that the mayor controlled the day-to-day activities in the township, the court denied the motion to dismiss as to the claims against the mayor. The plaintiff's claims concerning four discrete acts of retaliation also partially survived the defendants' motion as the court held that, despite the fact that each act alone did not qualify as a discrete adverse employment action under CEPA, the aggregate effect of all four actions was sufficient to state a claim for a hostile work environment under CEPA. The plaintiff's claims alleging a failure to pay back-pay and violations of his rights to freedom of speech, petition and association also survived the defendants' motion. The court granted the motion as to the plaintiff's claim that his statutorily required raise was withheld because the claim was untimely under CEPA's one-year statute of limitations.

Case Law Alert - 2nd Quarter 2013