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Bus Driver Whistleblower

Another day, another whistleblower claim, as increased action continues on qui tam front.  A bus driver named Robert Dukin drove for the Mount Olive school district from 2007 to 2010 but he claims he was let go for reporting unsafe working conditions of his vehicle.  Dukin v. Mount Olive Twp. Bd. of Ed. came about as a result of a number of events…

Bus Driver Whistleblower

Another day, another whistleblower claim, as increased action continues on qui tam front.  A bus driver named Robert Dukin drove for the Mount Olive school district from 2007 to 2010 but he claims he was let go for reporting unsafe working conditions of his vehicle.  Dukin v. Mount Olive Twp. Bd. of Ed. came about as a result of a number of events starting in January of 2010.  That month, Dukin reported to the Motor Vehicle Commission that a bus in operation was in need of brake repairs.  A few days later, he received reprimands for operating a vehicle in the garage without proper ventilation of the exhaust and for phoning the union while he was working to report the ventilation reprimand.  To further complicate things, a week later, Dukin contacted the New Jersey Office of Public Employees Occupational Safety and Health claiming he was told to elevate a bus with a bumper jack on uneven pavement, a violation of common safety procedures.
The events that followed directly led to the court filing as district superintendent Larrie Reynolds met with Dukin one on one and Durkin was terminated for contacting the State regarding the brake issue.  Dukin responded by claiming he was protected under whistleblower law to which he was reinstated to his position and told he would go unpunished.  Upon inspection, 13 regulatory violations were found and thousands of dollars in fines were levied upon the district.  His union offered to pay his salary through the remainder of his contract that led through May 2010 in return for releasing the school district from liability.  Dukin refused the offer he was given and did not have his contract renewed in June 2010.
Morris County Superior Judge Stephan Hansbury issued a statement in the case that involved Dukin as well as the school district and four administrators saying that all of Dukin’s actions did indeed fall under whistleblower activity.  However, the judge granted the district’s motion for summary judgment stating that the district’s argument that his position was only eliminated because of cuts in their budget held merit.  He did not see evidence to back up the assertion that the position was cut because of the whistleblower activity reported.  Summary judgment is typically granted to a party to a case where the evidence overwhelmingly favors the party over the other party that no reasonable factfinder (usually a jury) could rule otherwise at the time of trial.  In this case, Judge Hansbury ruled that Dukin failed to demonstrate that his non-renewal of services was a result of his whistleblowing.
Dukin appealed the ruling and Judges Clarkson Fisher Jr., Marianne Espinosa, and Ellen Koblitz rules that he had substantial evidence to show exactly what Hansbury believed he could not.  Their ruling was that a plaintiff who engages in a prima facie case (one in which the evidence is presented to be rebuffed by the defense) under the Conscientious Employee Protection Act has merit until the defense can provide a reasonable, alternative reason for termination.  The evidence presented by the plaintiff need only to provide doubt in the defense’s argument for termination in order for the court to conclude that the plaintiff is correct in his or her assertion.

Interestingly enough, a similar case, Abbamont v. Piscataway Twp. Bd. Of Ed., 138 N.J. 405 (1994), involved the New Jersey Supreme Court ruling in favor of a teacher without tenure who reported health and safety violations in a school metal shop.  Due to the court’s ruling in that case, the appeals court ruled that Dukin did have merit in his assertion and that the case could not be discarded under summary judgment.  According to plaintiff attorney, the case lays groundwork for how claims filed under the Conscientious Employee Protection Act should be handled moving forward.

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