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DONELSON v. DUPONT CHAMBERS WORKS
988 A.2d 604 (2010)
412 N.J. Super. 17
Joseph A. DONELSON, Plaintiff, and
John Seddon, Plaintiff-Respondent/Cross-Appellant,
v.
DuPONT CHAMBERS WORKS, Defendant-Appellant/Cross-Respondent, and
Paul Kaiser, Defendant.
Docket No. A-2028-08T1
Superior Court of New Jersey, Appellate Division.
Argued December 7, 2009.
Decided February 24, 2010.
David S. Fryman argued the cause for appellant/cross-respondent (Ballard Spahr Andrews & Ingersoll, LLP, attorneys; Mr. Fryman, Jennifer L. Sova and William J. Simmons, on the briefs).
Neil Mullin argued the cause for respondent/cross-appellant (Smith Mullin, PC, attorneys; Mr. Mullin and Nancy Erika Smith, of counsel and on the brief).
Before Judges LISA, BAXTER and COBURN.
The opinion of this court was delivered by BAXTER, J.A.D. This is an appeal by defendant DuPont Chambers Works1 from the denial of its post-trial motions after a jury awarded DuPont's former employee, plaintiff John Seddon, $724,000 as compensatory damages and $500,000 as punitive damages, based upon the jury's finding of a violation of plaintiff's rights under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The entire amount of the jury's award of compensatory damages was for plaintiff's economic loss. The jury awarded nothing for his emotional pain and suffering. Defendant also appeals from the trial judge's award of attorney's fees to plaintiff in the amount of $523,289. 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
find, we now vacate the $724,000 award of economic damages, as well as the $500,000 punitive damages award, and remand for the entry of judgment in favor of defendant. I.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."
1. Appellant's correct name is E.I. du Pont de Nemours and Co. 2. The person who performed the examination was not a psychiatrist, but was instead a clinical social worker who also served as DuPont's employee assistance program counselor. 3. Plaintiff voluntarily dismissed his cause of action against Kaiser on the first day of trial. 4. The record on appeal does not include a transcript of the expert's testimony. 5. The term "back pay" is a sum of money paid to an employee as reimbursement for financial losses already sustained as a result of the employer's misconduct. "Front pay" refers to future lost wages. Baker v. Nat'l State Bank,353 N.J.Super. 145, 158, 801 A.2d 1158 (App.Div.2002). 6. January 14, 2008 was a Monday. The next transcript that is part of the record begins with opening statements on Thursday, January 17, 2008. 7. Although our decision in T.L. was affirmed in part and remanded in Lehmann v. Toys `R' Us, Inc.,132 N.J. 587, 626-27, 626 A.2d 445 (1993), the Court expressed no disagreement with our conclusion in T.L. that a plaintiff who was not terminated or constructively discharged could not collect lost wages. 8. Plaintiff conceded as much during the argument on the parties' post-trial motions, when he said, "The language in the Statutes, both the LAD and CEPA, which are construed, you know, in the same way when it comes to damages in language of tort.... [T]he LAD and the CEPA ha[ve] been construed in pari materia with the LAD." 9. The official Statement of the Senate Labor Committee contains identical language. Senate Labor Committee Statement, Senate No. 1886, L. 1986, c. 105. 10. We recognize that plaintiff's claim for economic damages—arising from DuPont's alleged retaliatory reduction in his opportunity to earn overtime compensation—is not affected by plaintiff's failure to prove a constructive discharge. This is so because any loss of overtime pay occurred before plaintiff chose to retire on a disability pension. Thus, it is theoretically possible for plaintiff's claims related to overtime pay to survive a dismissal of plaintiff's claim for loss of front pay and back pay, both of which arose after plaintiff chose to retire. Nonetheless, given the state of the record, it is impossible to determine whether any portion of the $724,000 award for economic damages is attributable to lost overtime or whether instead all of it was attributable to the loss of back and front pay.
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.
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