Marking the first time the New Jersey courts have addressed the issue, the Superior Court of New Jersey, Law Division, held that the New Jersey Tort Claims Act's ("TCA") notification provisions do not apply to claims brought under the Conscientious Employee Protection Act ("CEPA"), the state's whistleblower statute. Lakes v. City of Brigantine, No. ATL-L-220-05 (Sept. 17, 2007). Noting each statute's separate and distinct purpose and filing procedure, and guided by prior TCA decisions, the court concluded that the employee's failure to abide by the TCA's notification provisions was irrelevant to his CEPA claim.
In Lakes, an employee reported coworkers who shot BB guns in a municipal building to the Occupational Safety and Health Administration. Subsequently, the employee claimed his employer ridiculed him and gave him unfavorable work assignments. Soon after, he filed a CEPA complaint against the employer, a public entity. The employer moved to dismiss the complaint because the employee failed to adhere to the TCA's notice requirements, which mandate that a potential plaintiff notify a public entity or official within 90 days of the complained-of conduct. N.J.S.A. 59:8-3 to -11.
First, the court noted that in Fuchilla v. Layman, 109 N.J. 319, cert. denied, 488 U.S. 826 (1988), the TCA notification requirements were found inapplicable to claims brought under the Law Against Discrimination ("LAD") because of the differences behind each law: the TCA was enacted to compensate tort victims without burdening government functions or the general public; the LAD, to end workplace discrimination. Additionally, each statute has its own claim filing procedure, distinct from the other. Accordingly, the TCA's notice provisions have no bearing on a LAD claim.
Second, the court pointed out that Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405 (1994), highlighted the differences between the TCA's and CEPA's statutory purposes: unlike the TCA, the CEPA—similar to the LAD—is a civil rights law that discourages unlawful and unethical workplace conduct by protecting and encouraging employees to report such conduct.
The court then turned to Brook v. April, 294 N.J. Super 90 (App. Div. 1996), where the TCA's notice provisions were held not pertinent to worker's compensation claims. Again, Brook reached its holding after exploring each law's separate and distinct purpose and filing procedure.
Finally, the court noted, as persuasive authority, Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003), where the federal Third Circuit Court of Appeals held that the TCA's notice requirements did not apply to CEPA claims.
In light of these decisions, the court ruled that the TCA's notice provisions did not apply to CEPA claims.
Public entities, however, should remember that the TCA's notification requirements still must be met when public employees file common law actions against their employers.