Know When to Fold 'Em: Appellate Division Upholds Bally’s Termination of Employee Despite Whistleblowing Activity

On December 3, 2019, the New Jersey Appellate Division upheld the dismissal of a whistleblowing claim filed by an ex-casino employee. In Cook v. Bally's Park Place Inc., the Appellate Division affirmed the trial court’s decision dismissing the employee’s claims under the Conscientious Employee Protection Act (CEPA) finding that he was properly terminated for mistreating his coworkers. Thus, he could not establish a claim for retaliation, as there was no link between his termination and his reporting of an alleged casino scam.

Facts

Timothy G. Cook worked for Bally’s Atlantic City Hotel & Casino since March 1985. He was hired in the Surveillance Department as a Surveillance Officer. In 1996, Cook was promoted to “dual rate shift supervisor.” On multiple occasions prior to his termination, Cook had been formally reprimanded for loud, abusive and argumentative behavior providing that “[a]ny further behavior of this kind would lead to termination.”

A year prior to his termination, Cook reported and assisted the Division of Gaming Enforcement (DGE) and State Police in an investigation of an alleged cheating scam involving mini-baccarat. He also reported suspected collusion with Bally’s employees by the alleged perpetrators. In June 2011, Cook received a positive performance review, recognizing his reporting of the alleged scam. Cook’s suspicion was subsequently deemed to be unsubstantiated.

Cook had numerous documented insubordinate and discriminatory interactions with his co-workers: raising his voice in an unprofessional manner; racist remarks; and misogynistic comments.

Based on Cook’s documented performance issues, the decision was made to terminate Cook’s employment for violating company policy. Specifically, Bally’s determined that “[Cook’s] conduct toward his subordinates, peers, and superior was so severe that it warranted termination.” Cook was subsequently terminated on August 4, 2011.

On appeal to the Board of Review, the Board upheld Cook’s termination and found that Cook’s reporting of the mini-baccarat scam was not the basis for his termination.

Cook subsequently filed suit against Bally’s for wrongful termination. On June 2, 2014, the trial court dismissed Cook’s complaint, finding no evidence that Cook was terminated due to the investigation into the alleged mini-baccarat scam in violation of common law whistleblowing under Pierce v. Ortho Pharm. Corp. and CEPA.

Appellate Division’s Decision

On appeal, in order for Cook to prevail on his retaliatory discharge claim under CEPA and Pierce, he had to show that (1) he reasonably believed the employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he engaged in whistleblowing activity; (3) an adverse employment action was taken against him; and (4) a causal connection exists between the whistleblowing activity and the adverse employment action.

Agreeing with the trial court that there was “no competent evidence to prove Bally’s was improperly motivated by a retaliatory desire to terminate plaintiff for reporting a mini-baccarat scam a year prior to his termination,” the Appellate Division found that Cook could not establish a causal connection between his reporting of the mini-baccarat scam and his termination.

The Appellate Division then took it a step further, stating that even if Cook could demonstrate that a causal connection existed between his whistle-blowing activity and his termination, Bally’s had legitimate, non-discriminatory reasons for terminating Cook based on his documented and admitted mistreatment of his coworkers.

Bottom Line

New Jersey Courts are reluctant to entertain whistleblowing claims where there is clear evidence of legitimate, non-discriminatory reasons for an employee’s discharge.

Bally’s was able to show that Cook was terminated following an investigation into his mistreatment of his coworkers, and not for any reason linked to his reporting of an alleged scam. Though Cook’s misconduct, alone, was sufficient grounds for his termination, had Bally’s not been able to support its legitimate, non-discriminatory actions, the Appellate Division may not have dismissed Cook’s whistleblowing claim.

For more information regarding this decision and best practices for defending claims of whistleblowing, harassment and discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, or at 973-533-0777.