By Bill Wichert

Law360 (September 9, 2020, 10:27 PM EDT) -- New Jersey on Wednesday said a former assistant health commissioner cannot pursue whistleblower claims in state court that he suffered retaliation after being fired over what he says were his objections to performing private COVID-19 tests on relatives of Gov. Phil Murphy's chief of staff.

The state asked the court to toss the second count of Christopher Neuwirth's amended complaint for "post-termination retaliation" alleging the state provided "false and defamatory information" about him to the media under the state's Conscientious Employee Protection Act, arguing that the statute does not provide for such a cause of action.

The dismissal motion largely relied on the New Jersey Supreme Court's 1995 opinion in Young v. Schering Corp. , which, "along with every Appellate Division opinion addressing the issue since, has made it clear that CEPA does not apply to acts allegedly taken after the employment relationship has ended," according to the state's brief.

Beyond dismissing the second count, the state urged the court to strike the related allegations, saying they are "irrelevant, superfluous, and serve no purpose except to harass and prejudice the state."

Neuwirth launched his initial suit on June 16 and then the amended complaint on July 30. The amended filing included two CEPA counts, one for his allegedly retaliatory firing and one for the purported post-termination retaliation.

After previously working for the state Department of Health in different positions, followed by a job in the private sector, Neuwirth returned to the DOH in October 2018 as an assistant commissioner, the amended complaint said.

During both stints with the DOH, Neuwirth disclosed to the state that he performed outside consulting services for Margolis Healy and Associates LLC and received approval for it, the complaint said. Neuwirth said he didn't conduct any MHA work after the state's COVID-19 response began in late January.

Amid a limited supply of COVID-19 testing materials, Neuwirth said State Police Superintendent Patrick Callahan asked him on April 24 that Neuwirth or a member of his staff collect saliva specimens from two relatives of Murphy's chief of staff, George Helmy, as a "favor," according to the complaint. The specimens were to be tested at the DOH's Public Health and Environmental Laboratories.

The complaint alleged that Neuwirth was ultimately fired on May 28 in retaliation for making complaints about the request. Neuwirth said a human resources director told him that his termination was "a 'no-cause termination' and that his 'services were no longer needed.'"

Following his termination, however, "the public position being taken by the state is that the reason for plaintiff's termination was because he failed to properly disclose his consulting work for MHA and that he did not obtain appropriate approval to do so," according to the complaint.

Neuwirth further alleged that after he was fired, "anonymous sources of the state" made false and defamatory statements in media reports about him and the reasons for his termination, including that he was "terminated 'for cause,'" and that he "became 'overloaded' with work at his 'other job' at MHA."

When asked about Neuwirth's termination, Murphy "perpetuated the falsehoods being disseminated by 'anonymous' sources by stating, '… it's par for the course that you're not supposed to have another source of income,'" the complaint said.

In Wednesday's motion, the state said it is not seeking the dismissal of the CEPA count related to Neuwirth's claims that he was fired due to complaints over the COVID-19 testing request, noting that such allegations support a CEPA claim and the court must accept them as true at the current stage of the litigation.

But the state contended, however, that evidence will ultimately show that "plaintiff's termination — which, because plaintiff was an at-will employee, did not need to be for cause — would have been justified for several reasons, all of which are unrelated to any protected activity under CEPA."

Counsel for Neuwirth declined to comment Wednesday.

Neuwirth is represented by Christopher J. Eibler, Kathryn K. McClure, Robert W. Smith, Meghan Chrisner-Keefe, Lisa Ackerly Hernandez and David J. Franzmathes of Smith Eibler LLC.

The state is represented by Ricardo Solano Jr., Eric Corngold, Nora Bojar and Blair R. Albom of Friedman Kaplan Seiler & Adelman LLP.

The case is Christopher Neuwirth v. State of New Jersey et al., L-1083-20, in the Superior Court of New Jersey, County of Mercer.

--Editing by Steven Edelstone.

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