A New Jersey appellate court reversed a trial court’s dismissal of whistleblower retaliation claims under the Conscientious Employee Protection Act (CEPA), holding that the plaintiff’s retaliatory termination and hostile work environment claims were timely under both the discrete-act and continuing violation doctrines.
Quick Hits
- A New Jersey appellate court reversed a trial court’s dismissal of five CEPA counts, finding the plaintiff’s retaliatory termination claim was timely because CEPA’s one-year statute of limitations runs from the date of actual discharge, not from prior retaliatory acts.
- The court held that, under the continuing violation doctrine, the plaintiff’s hostile work environment claim accrued within the limitations period because acts of retaliation occurring within the statute of limitations period “sweep in” earlier, nondiscrete acts.
- The court remanded to the trial court for further proceedings, including granting the plaintiff leave to amend her complaint to plead the series and chronology of nondiscrete acts with more specificity.
On May 7, 2026, the Superior Court of New Jersey, Appellate Division, in Ham v. Novartis International AG, reversed a trial court’s order dismissing with prejudice five CEPA counts against a pharmaceutical company and remanded for further proceedings. While the ruling addressed the timeliness of the plaintiff’s whistleblower retaliation claims, the decision provided important guidance on the application of CEPA’s one-year statute of limitations and the continuing violation doctrine.
Background
The case arose from a lawsuit filed by Cynthia Ham, an attorney who served as an ethics, risk, and compliance advisor for Novartis. Ham alleged she was retaliated against for raising concerns about three areas that she believed involved illegal discount arrangements, kickbacks, and patient steering.
Ham alleged she was subjected to retaliation that included being excluded from meetings and a public speaking engagement, subjected to bogus HR investigations, given a substandard performance evaluation, issued a “final warning” conduct memo, and ultimately discharged. She raised claims of retaliation and hostile work environment under CEPA, as well as retaliation, disability discrimination, failure to accommodate, and hostile work environment under the New Jersey Law Against Discrimination (NJLAD).
Novartis moved to dismiss the CEPA claims, contending the claims were barred by CEPA’s one-year statute of limitations. The parties had entered into a tolling agreement that paused the statute of limitations on August 8, 2022, and later ended on May 31, 2023. In January 2025, the trial court granted the motion in part, dismissing all five CEPA counts with prejudice. The trial judge ruled the alleged retaliatory acts were discrete acts that occurred more than one year before August 8, 2022, could not be aggregated under a continuing violations theory, and were therefore untimely. Ham’s motion for reconsideration was denied.
While the Appellate Division denied Ham’s motion for leave to appeal, she moved for leave to appeal to the New Jersey Supreme Court, which granted the motion and summarily remanded the case to the Appellate Division for consideration on the merits.
Appellate Court’s Findings
The Appellate Division reviewed the trial court’s ruling de novo, examining the legal sufficiency of the facts alleged on the face of the complaint and giving Ham the benefit of every reasonable inference.
The Appellate Division found that Ham’s CEPA claim alleging retaliatory termination was timely as a discrete retaliatory act. The court stated that “when the employer’s alleged conduct consists of wrongful termination, the employee’s cause of action under CEPA accrues on the date of actual discharge.” Because Ham was discharged on October 19, 2021, “squarely within the August 8, 2021, and August 8, 2022, limitations period” fixed by the tolling agreement, the claim was timely.
The court also held that, under the continuing violation doctrine, Ham’s CEPA hostile work environment claim accrued within the limitations period. Ham alleged a series of separate acts comprising a pattern of retaliatory conduct, including Novartis obstructing her return to work after her medical leave for cancer treatment and mishandling her return-to-work accommodations request in September 2021 and October 2021. The court found these last acts “sweep in otherwise untimely, prior non-discrete acts.”
The court explained that a hostile work environment claim consists of “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.” Under this doctrine, a plaintiff may pursue a claim if each asserted act is part of a pattern, and at least one of those acts occurred within the statutory limitations period.
The court rejected Novartis’s contention that Ham’s hostile work environment claim failed because she did not plead “an unbroken pattern of retaliation.” The appellate court found “no such bright-line rule in New Jersey caselaw” and noted that “the federal cases upon which the defendants relied were not precedential ‘under [New Jersey’s] state employment-law jurisprudence.’”
Key Takeaways for Employers
The Appellate Division’s ruling provides important guidance on the timeliness of CEPA claims and the continuing violation doctrine. The ruling raises some key considerations:
- A retaliatory termination claim under CEPA accrues on the date of actual discharge, meaning the statute of limitations does not begin to run until the employee is actually discharged, regardless of prior retaliatory acts.
- A series of relatively minor retaliatory acts, such as exclusions from meetings, poor performance evaluations, and obstructing a return to work, can combine to form a hostile work environment claim under the continuing violation doctrine, even if individual acts occurred outside the statute of limitations period.
- Employers may wish to train supervisors on how to properly handle internal whistleblower complaints and carefully document the legitimate business reasons for any adverse employment actions taken after an employee has raised ethical or compliance concerns.
- This decision underscores the importance of considering a tolling agreement’s impact on the statute of limitations, as such agreements can extend the period within which a plaintiff’s claims remain viable.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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