New Jersey Appellate Panel Revives Whistleblower's Five CEPA Claims, Rejecting Statute-of-Limitations Bar

NEWARK (LN) — A New Jersey appellate panel on Wednesday reversed the dismissal of five whistleblower retaliation claims brought by a former Novartis compliance officer, holding that her retaliatory-termination claim accrued on the date of her discharge and that her hostile-work-environment claim survived under the continuing-violation doctrine.

Cynthia Ham, an attorney with more than 20 years of compliance experience, was hired by Novartis Pharmaceuticals Corporation in May 2018 as an Ethics, Risk, and Compliance Advisor. Her complaint alleged she identified potential violations in three areas — a cardiac nurse program she believed violated the Federal Anti-Kickback Statute, a sales training slide deck she believed contained regulatory violations, and a home-delivery pharmacy arrangement tied to the company's acquisition of ophthalmic drug Xiidra, described in the complaint as an estimated $1.2 billion product — and that each time she raised concerns, the retaliation escalated, according to the complaint.

According to the complaint, the pushback was swift and personal. After Ham flagged the cardiac nurse program, Matt Zeller, the commercial head of the program, yelled and berated her using profanity, to the point that his face turned red and a vein was bulging in his forehead, and asked how she dared to try to shut down the program. A Novartis vice president later warned her that U.S. General Counsel Elizabeth McGee had powerful friends at Novartis and that McGee and Vice President of Legal Shefali Kothari were still angry over her objection to the Cardiac Nurse program. Ham alleged she was subjected to two bogus HR investigations, given a below-expectations performance rating McGee orchestrated, and issued a final-warning conduct memo dated March 6, 2020 — all before she was diagnosed with brain cancer in June 2020 and later ocular cancer, requiring months of medical leave.

Ham alleged Novartis then interfered with her approved medical leave and sent conflicting return-to-work deadlines. She alleged the company failed to provide accommodations she had requested, including remote work and a reduced schedule. On October 19, 2021, Kothari advised Ham by email that her employment was being terminated, allegedly as a result of the elimination of her position.

The Morris County Law Division dismissed all five CEPA counts with prejudice in January 2025, ruling that the retaliatory acts were discrete events that occurred in 2018 and 2019 — more than a year before the August 8, 2022 cutoff established by the parties' tolling agreement — and could not be aggregated under the continuing-violation doctrine. The trial judge concluded Ham knew or should have known she had a cognizable CEPA claim no later than March 6, 2020, when the final-warning memo was dated, and that any CEPA claim had to have been filed within a year of that date.

The Appellate Division disagreed on both counts. Because Ham's discharge occurred on October 19, 2021 — squarely within the August 8, 2021 to August 8, 2022 limitations window — her retaliatory-termination claim was timely as a matter of law. The panel cited the New Jersey Supreme Court's holding in Alderiso v. Medical Center of Ocean County that a CEPA cause of action based on wrongful termination accrues on the date of actual discharge.

On the hostile-work-environment claim, the panel applied the continuing-violation doctrine, holding that Novartis's alleged obstruction of Ham's medical leave and mishandling of her return-to-work accommodations in September and October 2021 fell within the limitations period and were sufficient to sweep pattern of alleged retaliatory conduct. The panel also rejected Novartis's argument that Ham was required to plead an unbroken pattern of retaliation, finding no such bright-line rule in New Jersey caselaw and declining to follow the federal decisions Novartis cited.

The panel remanded with instructions for the trial court to grant Ham leave to amend her complaint to plead with greater specificity the series and chronology of non-discrete acts comprising the hostile-work-environment claim. The opinion was designated not for publication.

The case reached the Appellate Division after an unusual procedural detour: the panel initially denied Ham's motion for leave to appeal, Ham sought leave in the New Jersey Supreme Court, and the Supreme Court granted the motion and summarily remanded to the Appellate Division for consideration on the merits.

The National Employment Lawyers Association of New Jersey appeared as amicus curiae in support of Ham, arguing that a retaliatory-termination claim begins to accrue on the date of termination as a matter of law — the position the appellate panel ultimately adopted.