By Jeannie O'Sullivan

Law360 (October 22, 2020, 7:03 PM EDT) -- A former New Jersey health official who alleged he was fired for complaining about being asked to administer private COVID-19 tests to relatives of a Gov. Phil Murphy staffer had a retaliation claim dismissed from his suit, according to a state court order made available Wednesday.

In a two-page order, N.J. Superior Court Judge Douglas H. Hurd dismissed Christopher Neuwirth's claim for post-employment retaliation under the New Jersey Conscientious Employee Protection Act with prejudice and dismissed without prejudice paragraphs of the complaint spelling out the allegations.

The lawsuit also includes a general CEPA claim based on his alleged pretextual firing, which still stands.

Neuwirth, the state's former assistant health commissioner, alleged he was fired after alerting ethics authorities to the request that he collect saliva specimens from two relatives of Murphy's chief of staff, George Helmy, as a "favor." After the firing, Neuwirth claimed, the state said he was terminated for failing to disclose his outside consulting work, even though he'd received permission for it.

The dismissal of the claim followed arguments by the state that CEPA protection doesn't apply to post-employment conduct. In a dismissal brief, the state invoked 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."

In a court brief, Neuwirth said he didn't oppose the dismissal bid for the post-employment retaliation count because he planned to add defamation, intentional infliction of emotional distress, tortious interference and negligence claims.

Neuwirth's employment with the state dates back to 2011, according to his June complaint. His time as assistant Department of Health commissioner coincided with the state's response to the coronavirus pandemic, during which he claimed he regularly worked 16- to 20-hour days with no days off through April.

It was that same month that State Police Superintendent Patrick Callahan asked him to collect the specimens from Helmy's two relatives to be tested at the state's laboratory, characterizing the request as a "favor," Neuwirth alleged. The complaint pointed out that Murphy regularly emphasized the scarcity of the testing supplies at the time.

Considering the request an unethical misuse of government resources, Neuwirth brought his concerns to state health officials. Health Commissioner Judith Persichilli told him not to fulfill the request, Neuwirth said, but a Department of Health ethics officer advised him to consult a criminal defense lawyer who would explain the consequences of an ethics complaint.

Afterward, senior health staff began excluding Neuwirth from meetings and communications, he said. He was fired on May 28, a few weeks after the ethics officer told him to consult a lawyer.

After his termination, the state made public statements that Neuwirth was fired for consulting work he did with the firm Margolis Healy and Associates during his time working for the state, according to the complaint. Neuwirth claimed he requested and obtained permission from the state to do the consulting work.

Counsel for Neuwirth and a representative for the Office of the Attorney General declined to comment on Judge Hurd's decision.

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.

---Additional reporting by Bill Wichert. Editing by JoVona Taylor.

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