By Bill Wichert

Law360 (June 15, 2021, 4:17 PM EDT ) A onetime New Jersey health official has said the state has not spelled out a valid reason for his termination and thus should be held liable for allegedly firing him for objecting to collecting COVID-19 test samples from a state official's relatives.

Christopher Neuwirth, formerly an assistant commissioner of the state Department of Health, called on a state court Friday to grant him partial summary judgment as to New Jersey's liability under the state's Conscientious Employee Protection Act. He is suing the state and related defendants over CEPA and defamation claims.

The motion comes after the state, in response to questions from Neuwirth, said in April that "'the state states that several reasons justifying plaintiff's termination will be identified during the course of discovery,'" and that he was "'an at-will employee,'" according to Neuwirth's brief.

"The fact that the state cannot articulate any reason for terminating plaintiff, let alone a legitimate and non-retaliatory one, is dispositive of the issue of liability under CEPA," the brief states.

"While the state has purportedly produced all responsive documents and answered plaintiff's interrogatories in full, it appears intent on using continuing discovery to launch a fishing expedition in search of a manufactured defense to justify its retaliatory discharge of plaintiff," the brief adds.

Neuwirth made the motion on the same day Superior Court Judge Douglas J. Hurd granted his unopposed request to file a second amended complaint, which added defamation claims against the state, Gov. Phil Murphy and Assemblyman Christopher DePhillips, R-Bergen.

Those claims relate to what Neuwirth has said were false allegations made by anonymous sources in media reports after his termination that he was fired for failing to disclose and receive approval for consulting services for Margolis Healy and Associates LLC. An affiliate of law firm Cozen O'Connor, MHA specializes in "safety, security, emergency preparedness, and regulatory compliance," according to its website.

Neuwirth has asserted that he had disclosed and received state approval for such work.

At a May 29, 2020, coronavirus briefing, Murphy "perpetuated the falsehoods being disseminated by 'anonymous' sources by stating, 'Folks are not — it's par for the course that you're not supposed to have another source of income …,'" according to the complaint.

Neuwirth claimed in Friday's brief that he has "demonstrated unequivocally" that Murphy's "proffered legitimate, non-retaliatory reason for terminating him is pretextual."

"Contrary to the governor's remarks, plaintiff fully disclosed to the state and obtained approval to provide consulting services for MHA consistent with the State Ethics Commission's regulations and policy," the brief states. "As such, to the extent the court considers Governor Murphy's public statements as the reason for plaintiff's termination, it amounts to an undisputed pretext."

The lawsuit revolves around Neuwirth's claims that State Police Superintendent Patrick Callahan asked on April 24, 2020, that Neuwirth or a member of his staff collect specimens from two relatives of Murphy's chief of staff, George Helmy, as a "favor." The specimens were to be tested for COVID-19 at the DOH's Public Health and Environmental Laboratories.

Neuwirth was fired May 28 in retaliation for making complaints about the request, the suit says. He alleged that a human resources director told him that his termination was "a 'no-cause termination' and that his 'services were no longer needed.'"

In Friday's brief, Neuwirth argued that he had established a solid CEPA claim, including by linking his whistleblowing and his termination.

Among other purported evidence in that regard, Neuwirth noted that the state, through Lubna Qazi-Chowdhry — the ethics liaison officer for the DOH — "received an ethics complaint from plaintiff and failed to investigate in gross violation of state ethics commission regulations."

"Instead, Ms. Qazi-Chowdhry implicitly threatened plaintiff with criminal repercussions for his whistle-blowing activity by telling him that he needed to speak to a criminal attorney before moving forward with the processing of his ethics complaint," the brief states.

After Neuwirth "consulted with a criminal attorney and stood firm in his desire to pursue a formal complaint and in clear violation of her job responsibilities, Ms. Qazi-Chowdhry refused to process plaintiff's complaint," the brief states.

Under the applicable "burden shifting framework," once Neuwirth presents such a solid CEPA action, the burden is on the state to show it had "a legitimate, non-retaliatory reason" for firing him, according to the brief. But the state has not met that burden, the brief states.

Counsel for Neuwirth declined to comment Tuesday. The New Jersey attorney general's office, which retained outside counsel to represent the state, declined to comment Tuesday.

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 Kelly Duncan.

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