2.99 See Answer

Question: Plaintiff Moseley is an employee of Defendant


Plaintiff Moseley is an employee of Defendant Pepco Energy Services, Inc. (“PES”). He has been employed by PES or its corporate predecessors for over twenty-five years. PES, a subsidiary of Defendant Pepco Holdings, Inc. (“PHI”), provides deregulated energy and energy related services for residential, small business, and large commercial customers.
In 1998, Thomas Herzog held the position of Vice President of CTS. In or around 2002, CTS merged with Potomic Electric Power Company, Inc., and each company became a subsidiary of PHI. Following the merger, according to Plaintiff, he continued to work for PHI, still as Maintenance Manager at Midtown Thermal, until December 31, 2009.
Following the 2002 merger with PHI, employees were required to complete an annual ethics survey. By March of 2007, Plaintiff and two co-workers had discussed their respective observations of Herzog’s conduct, which they deemed questionable and possibly unethical. Specifically, they felt that Herzog improperly used company assets and improperly hired immediate family members and friends who did not appear on the payroll. The three decided to disclose this information on PHI’s annual “Ethics Survey.”
The three planned to reveal that Herzog employed his daughter, Laurie, as his secretary in the summer of 2005 and the beginning of 2006 without posting the position first and in violation of PHI’s anti-nepotism policy.
Next, Herzog hired his girlfriend’s daughter as his secretary after his daughter had gone back to school. Plaintiff believed this was in violation of Company policy because the position again was not posted. Herzog also hired his son as a project manager, again through a third party independent contractor, Walter Ratai. Plaintiff thought this was wrong because
(1) Herzog circumvented the Company’s hiring process,
(2) it violated Company policy, and
(3) Herzog’s son was being paid $75.00/hr, which was more than Plaintiff was making.
In addition, Plaintiff had learned that Herzog was improperly using the Company’s Eagles’ tickets for personal use. Finally, Herzog had leased a new SUV with Company funds, but which was not approved by the Company.
After the surveys were completed, an investigation ensued. Following the investigation, effective on or about May 10, 2007, Herzog was escorted out of the building. On March 8, 2008, Plaintiff received his annual performance evaluation; for the first time in twenty-three years, Plaintiff’s performance review was negative. Plaintiff feels that this negative performance review was a further act of retaliation for his disclosure of Herzog’s conduct.
On or about June 11, 2008 the Plant/Operations Manager position was posted. Plaintiff applied for the position, but it was offered to another person. Plaintiff alleges that he “was not promoted to the position of Plant/ Operations Manager despite his experience performing the job for the previous two and a half years, qualifications for same and seniority, as a direct and proximate result of his prior complaints and/or disclosures regarding the Herzog illegal conduct and activities.”
The New Jersey Legislature enacted the Conscientious Employee Protection Act (CEPA) to “protect and encourage employees to report illegal or unethical workplace activities.” CEPA prohibits a New Jersey employer from taking “retaliatory action” against an employee who objects to “any activity, policy or practice which the employee reasonably believes” is in violation of applicable law. “To prevail on a claim under this provision, a plaintiff must establish that:
(1) he reasonably believed that [the complained-of] conduct was violating a law or rule or regulation promulgated pursuant to law;
(2) he objected to the conduct;
(3) an adverse employment action was taken against him; and
(4) a causal connection exists between the whistleblowing activity and the adverse employment action………………………………………………………..

Required:
1. Using duty-based ethical principles, what facts or circumstances in this case would lead Moseley to disclose Herzog’s behavior?
2. Using outcome-based ethical principles, what issues would Moseley have to analyze in making the decision to report Herzog’s behavior? What would be the risks to Moseley? The benefits?
3. Under the Business Pragmatism™ steps, what alternatives might Moseley have had in this situation?


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2.99

See Answer