N.Y./N.J. Port Authority beats whistleblower lawsuit

By April Brown | Mar 27, 2017

NEWARK, N.J. (Legal Newsline) – On March 15, the Appellate Division of the Superior Court of New Jersey handed down an opinion on a case filed by a former Port Authority employee who alleged retaliation and civil conspiracy against the agency.

Judge Marie P. Simonelli and her colleagues affirmed summary judgment to the defendant, The Port Authority of New York and New Jersey, dismissing the plaintiff’s complaint with prejudice.

According to the opinion, plaintiff Brian Sullivan worked as a police officer with the Port Authority’s Public Safety Department for 25 years and attained the rank of police inspector. As inspector, Sullivan was also a subject matter expert for the development and administration of the examination process for prospective sergeants.

The opinion states that Sullivan failed to report improper conduct and other improprieties, as required by a document the plaintiff signed titled Subject Matter Expert, Test Security Instructions, which compromised the integrity of the examination. Upon completion of an investigation by the Office of Inspector General, the Port Authority’s human resources department recommended Sullivan be given the option to retire, prior to facing disciplinary charges.

Sullivan tendered his resignation on June 6, 2012, followed by serving a notice of claim against the agency the following August, alleging violations of the New York Whistleblower Law (NYWL).

In May 2013, Sullivan filed a complaint against the Port Authority, as well as six individual employees, alleging retaliation and civil conspiracy in violation of the New Jersey Conscientious Employee Act (CEPA). He asked for relief in the form of reinstatement and damages.

In response, the defendants filed a motion for summary judgment, arguing that the Port Authority is not subject to CEPA because is a bi-state agency created through an interstate compact. The defendants further argued that, as a bi-state agency, that the Port Authority is not governed by a single state legislation, and that the NYWL is not complementary to CEPA. 

As a result of the summary judgment, the plaintiff withdrew his claim for reinstatement.

Simonelli said the plaintiff failed to file required responses and supporting documents to substantiate allegations – relying instead on unverified allegations in his complaint and merits of brief on appeal. The opinion states that the plaintiff’s lack of evidence was insufficient to defeat the defendant’s summary judgment motion.

In addition, Simonelli agreed that the Port Authority is not subject to suit under CEPA, because it is a bi-state agency whose governing states lack complimentary and parallel legislation in regard to plaintiff’s allegations. The opinion further states that CEPA and the NYWL are also significantly different with respect to the types of remedies and damages available.

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