The opinion of this court was delivered by
This is an appeal by defendant DuPont Chambers Works
On appeal, defendant argues that the court erred when it accepted plaintiff's argument that he was entitled to an award of back and front pay without being required to prove a constructive discharge or an actual termination of his employment. Plaintiff cross-appeals from the court's decision to reduce the amount awarded for attorney's fees by fifty percent.
We agree with defendant's claims and hold that: 1) plaintiff was not entitled to an award for back and front pay because DuPont neither terminated plaintiff nor constructively discharged him from his employment; and 2) because plaintiff was not entitled to an award of economic damages, the denial of DuPont's motion for judgment notwithstanding the verdict (JNOV) was error, as was the award of counsel fees. We conclude that, like a cause of action for economic damages arising under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, a plaintiff seeking lost pay after a separation from employment that results from a violation of CEPA must prove a constructive discharge or an actual termination of employment before being entitled to an award of such lost pay. Because the trial judge erroneously accepted plaintiff's argument that the jury need not be instructed on constructive discharge or required to so
Plaintiff was a chemical plant operator at the DuPont Chambers Works plant in Deepwater. He filed suit, contending that DuPont and its employees had retaliated against him after he made safety complaints, one to the Occupational Safety and Health Administration (OSHA) and the other to DuPont management. He maintained that the reprisals by DuPont consisted of: imposing restrictions on him, not imposed on others, concerning his use of vacation, sick time and personal leave days; falsely accusing him of failing to complete required employee training; accusing him of failing to attend some of the safety meetings in the summer, even though DuPont had always excused him from such summer meetings in the past; falsely accusing him of being lazy and describing him in an internal memorandum as "not [one of] our best performers"; ordering him to notify a supervisor when and where he was going to lunch, a rule not imposed on other operators; and describing him in an e-mail as a "very high maintenance" employee over whom management should maintain a "watchful eye."
According to plaintiff's testimony at trial, the reprisals escalated over time, culminating in DuPont filing a disciplinary complaint against plaintiff alleging that he had "failed" to perform one of the principal tasks required of a chemical plant operator, namely taking a sample of the caustic solution in the principal piece of manufacturing equipment at the plant and then falsifying the solution levels in his daily log sheet by "enter[ing] `made up' information." DuPont issued plaintiff a verbal warning, which was recorded in his personnel file.
The day after plaintiff received the verbal warning, which he insisted was entirely unjustified and therefore retaliatory, he filed a complaint on DuPont's employee hotline alleging that DuPont's senior managers were harassing him for having filed the safety complaint with OSHA, and had done so both by singling him out for lunch-time and vacation restrictions, and by refusing to investigate his earlier complaints of a hostile work environment. Plaintiff testified that DuPont's rejection of the complaint he filed on the employee hotline was further evidence of the company's pattern of retaliatory behavior.
Plaintiff testified to another instance of significant retaliation by DuPont for his whistleblowing activities, namely forcing him to undergo an unwarranted, intrusive and humiliating mental status examination by a DuPont employee. The consequences of that examination were dire, as DuPont relied upon the clinician's findings
Furthermore, the clinician's conclusion that plaintiff was too emotionally unstable to work was later rejected in three independent evaluations, which were conducted at the behest of the DuPont clinician who had rendered the original report. All three, a psychologist and two psychiatrists,
Plaintiff testified that when he returned to work on May 28, 2004, he was assigned to a different shift with a new supervisor. Plaintiff claimed he could not earn the same overtime pay on the new shift, although DuPont's witnesses testified that both shifts had the same overtime opportunities. Before his suspension, plaintiff earned "[a]round [$]30,000 a year" in overtime. Approximately one year after he returned to work, plaintiff was given permission to work overtime, which he did twice. The second time, he almost had an "anxiety attack," and had to leave when defendant Paul Kaiser appeared, because of the problems plaintiff had had with Kaiser in the past. Plaintiff never worked that shift again.
Plaintiff testified that his two-month suspension made him feel "[s]ad, hopeless," as if his "life was at an end." He felt "kicked to the curb," "worthless," "[b]eaten," and "embarrassed," and wondered if his co-workers considered him "crazy." He could not eat and had trouble sleeping. After returning to work in June 2004, plaintiff worried about new allegations and experienced anxiety "every day" as he approached the entrance gate. He sought psychiatric treatment, and began taking anti-depressant medication. In February 2005, plaintiff filed suit against DuPont and Kaiser.
In January 2007, plaintiff began a voluntary six-month leave of absence. He retired on December 31, 2007, with a disability pension from DuPont. At the time of trial, plaintiff testified that he was earning $50,000 to $60,000 less per year on retirement than he had earned with his salary and overtime, and he presented the testimony of an economic expert who apparently quantified his economic loss.
At the start of trial, prior to opening statements, DuPont moved to bar plaintiff from introducing evidence of economic loss because he had not alleged constructive discharge in his pleadings. According to DuPont, plaintiff "stood up here at oral argument in [his] summary judgment papers and said, `we're not alleging constructive discharge.' And the case law is clear, no constructive discharge, [then] no back or front pay."
At the conclusion of this oral argument, which occurred on January 14, 2008, the judge reserved decision, commenting that he would render a decision on DuPont's motion the next morning. The record does not include a transcript of the judge's ruling on the motion; however, as is apparent from the trial record, and from both parties' briefs, the judge denied the motion.
Instead, the jury verdict sheet asked the jury if plaintiff had proven by a preponderance of the evidence "that DuPont retaliated against him in violation of New Jersey's Conscientious Employee Protection Act," to which the jury answered "yes." The next question asked the jury how much money it awarded plaintiff "for economic losses" he suffered as a proximate result of DuPont's violations of CEPA, to which the jury answered "$724,000." In response to the next question, which asked how much the jury awarded for plaintiff's "pain and suffering" proximately caused by DuPont's violations of CEPA, the jury answered "0." The jury awarded plaintiff an additional $500,000 in punitive damages.
On April 11, 2008, the judge denied DuPont's post-judgment motions for JNOV and for remittitur. In a written opinion, he addressed DuPont's claim that in the absence of proof of constructive discharge,
We turn first to DuPont's claim that the judge erred by denying its motion for JNOV on plaintiff's CEPA claim because there was no causal connection between his whistle-blowing activity and any adverse employment action. Our determination that plaintiff was not entitled to an award of economic damages in the absence of a constructive discharge makes it unnecessary for us to address DuPont's causal connection claim.
We turn now to the central issue raised by this appeal. DuPont contends the trial court erred by denying its motion to vacate or remit the jury's award of economic damages because plaintiff failed to establish any legal entitlement to back or front pay. Specifically, it argues that plaintiff cannot recover economic damages because there was no actual or constructive discharge. DuPont maintains that the remedies provision in CEPA, as in the LAD, prohibits recovery for such damages, and that CEPA's legislative history expressly provides that back and front pay would not be available unless a plaintiff's employment was terminated. Finally, DuPont argues that plaintiff did not qualify for economic damages because the jury found no compensable emotional pain and suffering.
DuPont did not argue in the trial court, and has not argued on appeal, that the jury award of $724,000 was excessive or that it should be reduced. Instead, DuPont contends, as it did in the Law Division, that the court should have vacated the award because CEPA does not authorize an award of lost wages in the absence of a constructive or actual discharge. Consequently, the trial court's opinion did not address whether to remit the award, but instead focused on whether the award of economic damages should be set aside.
CEPA creates a statutory cause of action for retaliatory discharge. Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 103, 961 A.2d 1167 (2008). Its purpose is to protect and encourage employees who report illegal or unethical workplace activities. Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431, 650 A.2d 958 (1994). CEPA prohibits an employer from taking retaliatory action against employees "`who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.'" Dzwonar v. McDevitt, 177 N.J. 451, 464, 828 A.2d 893 (2003) (quoting Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94, 707 A.2d 1000 (1998)). Because CEPA is remedial legislation, it must be liberally construed to effectuate its important social goal. Id. at 463, 828 A.2d 893; Abbamont, supra, 138 N.J. at 431, 650 A.2d 958.
CEPA defines "retaliatory action" as "the discharge, suspension or demotion of an employee, or other adverse
CEPA protects employees from retaliation for three kinds of whistleblowing conduct, of which two are relevant here: disclosure to a supervisor or a public body, N.J.S.A. 34:19-3(a); or objection or refusal to participate in any activity that is illegal, fraudulent or criminal, or incompatible with a clear mandate of public policy, N.J.S.A. 34:19-3(c). To maintain a cause of action under either of these subsections, a plaintiff must establish:
CEPA, like the LAD, is a civil rights statute. Id. at 477, 727 A.2d 525. Both statutes seek "to overcome the victimization of employees and to protect those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers." Abbamont, supra, 138 N.J. at 418, 650 A.2d 958.
CEPA's remedy provision, N.J.S.A. 34:19-5, provides in relevant part:
The remedies provision under the LAD, N.J.S.A. 10:5-13, states:
For purposes of the laws against discrimination or retaliatory discharge, an employee is expected to take all reasonable steps necessary to remain employed. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 28, 803 A.2d 611 (2002) (addressing constructive discharge under the LAD). A claim for constructive discharge under the LAD requires proof of egregious circumstances. Ibid. The employer's conduct must be "so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Ibid. The proofs required to sustain the resignation are not subjective in nature, but are instead objective, i.e. whether a "reasonable person" would be forced to resign. Ibid.
DuPont relies on a series of cases under the LAD to argue that where an employer's conduct, however wrongful, did not result in an actual or constructive discharge, the employee was not eligible to receive an award for lost wages. For example, in Padilla v. Berkeley Educational Services of New Jersey, 383 N.J.Super. 177, 178, 891 A.2d 616 (App.Div.2005), the plaintiff alleged wrongful termination of her employment by way of constructive discharge. Although the jury found that the defendant had violated the LAD by engaging in unlawful discrimination on account of the plaintiff's pregnancy, it concluded that the discriminatory conduct was not adequate as a basis for justifying the plaintiff's resignation. Id. at 183, 891 A.2d 616.
In Padilla, we explored the difference between the purely subjective elements of a claim for emotional distress damages, and the objective elements of a claim for constructive discharge that causes a wage loss. Id. 183-84, 891 A.2d 616. We held that in light of the jury's rejection of the plaintiff's constructive discharge claim, she had no entitlement to an award for lost wages:
Thus, we held that without constructive discharge the jury had no basis to consider the plaintiff's claims for economic damages. We recognized that although the jury's rejection of the plaintiff's constructive discharge claim barred her from receiving an award of economic damages for any wage loss, she was nonetheless entitled to an award for emotional pain and suffering. Id. at 184, 891 A.2d 616. We reasoned that harassing or unlawful treatment causing an employee to suffer an emotional injury may be "sufficient to cause a claimant compensable emotional
Here, the jury awarded plaintiff economic damages in the absence of a constructive discharge or an actual termination. Thus, if Padilla applies to CEPA claims, rather than merely LAD claims, the jury's award cannot be sustained because in the absence of a constructive discharge, "the jury had no basis to consider plaintiff's claims for back pay, front pay ... or other economic damages." Id. at 183-84, 891 A.2d 616.
Padilla is certainly not the only case to have held, in the LAD context, that economic damages cannot be recovered where there has been no constructive discharge. See T.L. v. Toys `R' Us, Inc., 255 N.J.Super. 616, 662, 605 A.2d 1125 (App.Div. 1992)
We now turn to an analysis of whether CEPA cases such as this should be treated in the same fashion as LAD cases such as Padilla and the others we have discussed. As DuPont correctly argues, New Jersey courts have construed CEPA and the LAD identically on a wide variety of substantive issues. Notably, the Court observed in Carmona v. Resorts International Hotel, Inc., 189 N.J. 354, 371, 915 A.2d 518 (2007) that "courts frequently compare CEPA to the LAD, applying the legal tests and frameworks developed under one to the other." (internal quotations and citations omitted). See also D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 123-25, 927 A.2d 113 (2007) (applying to CEPA and the LAD the same definition of an "employee" who may bring a claim); Green, supra, 177 N.J. at 448, 828 A.2d 883 (applying the LAD "continuing violation" theory to CEPA claims); Cedeno v. Montclair State Univ., 163 N.J. 473, 479, 750 A.2d 73 (2000) (applying same standards to LAD and CEPA for the effect of failing to report a prior criminal conviction on the plaintiff's claims for wrongful discharge); Abbamont, supra, 138 N.J. at 417-18, 650 A.2d 958 (applying same standards for employer respondeat superior liability); Massarano v. New Jersey Transit, 400 N.J.Super. 474, 492, 948 A.2d 653 (App.Div.2008) (holding that the burden shifting analysis under LAD should apply to CEPA); El-Sioufi v. St. Peter's Univ. Hosp. 382 N.J.Super. 145, 176, 887 A.2d 1170
Nothing in the legislative history of CEPA requires a contrary result. Indeed, the legislative history supports DuPont's position. A statement by the Assembly State Government Committee, which drafted the 2005 amendment to CEPA's remedial provision resulting in its current language, expressly noted that back and front pay would not be available when the plaintiff's employment was not terminated:
We thus conclude that the judge's denial of DuPont's motion for JNOV was error, as the award of economic damages for back pay, front pay and lost overtime was improper when plaintiff had not been terminated or constructively discharged.
Next, DuPont contends the court erred by denying its motion to vacate the punitive damages, and contests the award as excessive. DuPont also argues that if the compensatory damages award is vacated, then the punitive damages award must be vacated as well. DuPont is correct. The Punitive Damages Act specifically mandates that "[p]unitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial. An award of nominal charges cannot support an award of punitive damages." N.J.S.A. 2A:15-5.13(c). See also Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 390 N.J.Super. 557, 567, 916 A.2d 484 (App. Div.2007), aff'd, 194 N.J. 212, 943 A.2d 866 (2008).
Thus, because we have held that the compensatory damage award must be vacated, the award of punitive damages cannot stand. Ibid. We thus reverse the denial of DuPont's motion to vacate the punitive damages award.
Last, DuPont contends the court erred by awarding attorney's fees to plaintiff because such an award depended in part on plaintiff's recovery of economic and punitive damages to which DuPont claims he was not legally entitled. In light of our conclusion that the compensatory and punitive damages must be vacated, plaintiff is no longer a prevailing party. Thus, he is not entitled to counsel fees. Best v. C & M Door Controls, Inc., 200 N.J. 348, 355, 981 A.2d 1267 (2009). We therefore reverse the award of counsel fees to plaintiff.
In his cross-appeal, plaintiff contends the court erred by reducing his attorney's fee award by fifty percent. In light of our disposition, we need not address plaintiff's claim that the counsel fee award was insufficient, as we have determined that the counsel fee award must be vacated.
Plaintiff acknowledged on the record, during the April 11, 2008 argument of DuPont's new trial motion, that if the position he asserted was incorrect, and economic damages cannot be awarded where there has not been a constructive discharge, then he would not be entitled to a new trial. We agree. By persuading the judge to instruct the jury that it could award plaintiff damages for economic loss if it found that DuPont had committed an adverse employment action in retaliation for plaintiff's whistleblowing activity—and by simultaneously persuading the judge to refrain from instructing the jury that it must also find plaintiff was constructively discharged—plaintiff was able to achieve a significant tactical advantage at trial. That tactical advantage enabled plaintiff to secure a verdict without having to satisfy one of the required elements of the very cause of action he asserted.
A litigant "`cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of
To be clear, plaintiff has not argued on appeal that he is entitled to a new trial if we reject the position he urged at trial. Instead, he confines his argument to a demonstration that the jury instruction was correct and the verdict should be affirmed. We have nonetheless discussed Brett as support for our conclusion that with the verdict in plaintiff's favor reversed, the matter must now be remanded not for a new trial, but instead for the entry of judgment in favor of defendant.
Reversed and remanded for the entry of judgment for defendant.
In particular, the verdict sheet did not ask the jury to specify whether any portion of its award of economic damages was attributable to overtime; it merely asked the jury "how much [it] award[ed] plaintiff, Jack Seddon, for economic losses he has suffered as a proximate result of DuPont's [conduct]." Second, the record on appeal does not include a transcript of the testimony of plaintiff's economic loss expert, and we are therefore unable to determine whether he rendered any opinion on the subject of overtime. Third, plaintiff's own testimony on the subject was inconclusive. He testified that he "generally" earned $30,000 per year from overtime, but when DuPont suspended him for "seven weeks and six days," he received only his base pay; however, he never provided a precise dollar amount of lost overtime pay for that period. Moreover, as we have already noted, plaintiff claimed that when he returned to work and was assigned to a different shift, he had no opportunities to earn overtime pay, but DuPont's witnesses disputed this claim. We cannot determine whom the jury believed on this subject. Last, plaintiff himself does not claim that the loss of overtime pay entitles him to a new trial. For all of these reasons, we conclude that the record cannot support a right to a new trial on the subject of lost overtime pay.