Abbamont v. Piscataway Township Board of Education

650 A.2d 958 PLAINTIFF-RESPONDENT, CARLIN, PHILIP v. PHYLLIS CARLIN, R. DEFENDANT-APPELLANT.

December 1994. ORDER appeal on having This come before the Court matter having 2:2-l(a)(l), Rule right pursuant and the Court deter- present a substantial constitutional mined the matter does not law, of the Rule meaning applicable case question within good appearing; cause appeal is dismissed. It is that the within ORDERED 650 A.2d 958 PLAINTIFF-RESPONDENT, ABBAMONT, JR., v. P. JOSEPH EDUCATION, OF BOARD PISCATAWAY TOWNSHIP DEFENDANT-APPELLANT. 1994. September Argued 1994 Decided December Rubin, {Rubin, appellant argued B. the cause David Rubin Kuhn, attorneys). Kaplan Malgran, & (Wilentz, respondent argued the cause D. Savits Glen Laura J. Bo- attorneys; Mr. Savits and Spitzer, Goldman & briefs). gaards, on the LaVecchia, General, argued Attorney

Jaynee Assistant Jersey Attorney {Debo- General of New amicus curiae cause for Sabatino, Poritz, General, attorney; M. Attorney Jack rah T. brief). General, Attorney on the Assistant of amicus curiae a brief on behalf M. Schall submitted Richard {Tomar, Simonoff, Lawyers Association Jersey Employee New O’Brien, attorneys). Adourian & on behalf of a letter brief Naprstek A. submitted

Kathleen {Zazzali, Zazza- Jersey Education Association New amicus curiae Nowak, li, attorneys). Fagella & was delivered opinion of the Court

HANDLER, J. case, teacher

In school industrial arts this a non-tenured education, through its employer, the local board of claimed that his by rehiring him supervisory employees, him not retaliated complained inadequate about a tenured teacher because he shop. safety in the school’s metal The health and conditions alleging complaint against the board of education teacher filed Employee Protection that its conduct violated Conscientious (CEPA). Act, it to -9 The board contended that N.J.S.A. 34:19-1 vicariously liable for the actions of its school officials. was not grant petition on our The case is before the Court education, by appeal and the as of certification filed the board of 2:2-l(a)(2), right by the of education under Rule based board filed Division, opinion reported in on a dissent whose (1993). 634 A.2d 538 major presented appeal on the are whether a local issues may vicariously of education be held liable for the retaliato- board ry brought acts of its school officials an action under CEPA an action. whether are available such

I Abbamont, Jr., рlaintiff, Joseph September In P. was defendant, by Piseataway Township hired Board of Education (board), employed Plaintiff defen- to teach industrial arts. was 1985-86, 1986-87, Quibbletown dant Middle School years. 1987-88 school beginning employment, plaintiff expressed

From the his poor safety concern about the health and conditions of the metal ventilation, machines, including shop, broken lack of air inade- quate lighting, slippery floors. either December 1985 or safety inspection January plaintiff completed required “unsatisfactory,” checklist in which he listed a number of items as including That form sent to the air ventilation. Edward School, McGarigle, Principal and the Arts of the Middle Industrial District, month, Jerry Papariello. Later that Supervisor for the safety plaintiff again health and concerns about the metal raised 1986, Coogan McGarigle. January In Dr. John from shop with inspected plaintiffs shop Department of Education the State team; him part monitoring plaintiff informed of a State 16, safety problems. N.J.Super. at 634 A.2d 538. health and met, 1986, McGarigle February according plaintiff, tо he and agreed plaintiff plastics would teach at which time the two However, expressed plaintiff of metals. concern about instead because, metal-shop machinery, plastics of air ventilation like lack requires separate ventilation hoods. machinery creates fumes and plaintiff his Again, in June 1986 and June when submitted year, requested repair of upcoming school he list of needs for the system. 634 A.2d 538. The ventilation the ventilation Id. however, Plaintiff repaired September not in 1987. system, was again. complained Papariello McGarigle and to teacher, 19, 1987, shop plaintiff and the Carl On October wood Schweitzer, joint Superintendent of Burt sent a letter to Schools they having problems with asserting that had been Edelchik shops equipment and that repair replacement and of broken McGarigle Papariello. they get responses from either could information, plaintiff responded by requesting more and Edelchik responded request to that an October and Schweitzer letter, requests McGarigle Papar- and all their to which included copies the Edelchik plaintiffs hiring. Plaintiff sent iello since McGarigle Papariello. Ibid. Edelchik correspondence to and things taken care plaintiff that “most of the were later informed McGarigle Papariello. Ibid. he had met with of’ because dizziness, experience During plaintiff began to the fall of nausea, headaches, breathing. coughing He was and trouble Ibid. Plaintiff con- having pulmonary condition. diagnosed as 1987,when a operate shop machines until December tinued to allegedly from the plastics collapsed, course plaintiffs student shop. fumes in the again, recount 3, 1988, plaintiff wrote to Edelchik January

On safety in the conditions the health ing concerns about his request problems, and student’s health reporting his and his shop, safety and other shop quality for air check the ing that OSHA copy that letter was sent A 634 A.2d 538. hazards. Id. at longer no plaintiff would along a statement that MeGarigle with problems had been until the ventilation plastics machines use the changed plastics be addressed, suggestion that the course air-quality plaintiff that an drawing. Edelchik informed technical shop completed to determine whether would be check plastics immediately safe, shut down he should and that anything plaintiff that exposing the students machines to avoid dangerous. thought would be Brinson, 15,1988, Virginia to Dr. January plaintiff wrote

On Schools, I “telling her who of County Superintendent Middlesex much trouble I was and how my problems were was and what plaintiff was not inspection, of which having.” After an Ibid. The informed, plaintiff and Schweitzer. MeGarigle met with only safety changes; it did not report minor inspection listed plaintiff, MeGarigle discovered According to ventilation. mention qualified to check inspector had not been meeting that the at that part that he was aware that MeGarigle also stated quality. air shop had not been proper for the ventilation needed years. for one-and-one-half installed 1988, determined that he should February plaintiffs doctor In tested, and shop until the air had been return to the metal 19, A Id. at 634 .2d describing plaintiffs condition. a letter wrote temporary leave of absence. permitted to take 538. Plaintiff was compensation claims he filed two workers’ Around that time illnesses. his work-related per- teaching, air-quality test was plaintiff stopped

After on March report, the board received formed. The which particles. all nuisance was safe from that the classroom stated air-quality Plaintiff, however, favorable not informed of the report. 18, 1988, April plaintiff

On received a letter from the board notifying him that he would not be rehired. Ibid. Plaintiff appealed January the board’s decision. the board af- plaintiff. its firmed decision to terminate Plaintiff then filed a CEPA, complaint against seeking the board under reinstatement fees, pay, attorneys’ punitive damages, and back and costs. court, ruling judge The jury trial that a and not a should punitive damages, determine the ‍​​‌‌​​​‌​‌​​​​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌​​​​​​‌‌​‍issue of severed that claim from claims, jury remaining jury trial. On the returned a plaintiff, compensatory verdict in favor of the and awarded dam- $60,000. court, however, ages granted The trial the board complaint, upon education’s motion dismiss the which it had decision, conсluding plaintiff earlier reserved had not estab- lished vicarious board based on the actions of its supervisory school officials. court, appeal,

On Division reversed the trial verdict, jury jury reinstated the and remanded the case for a trial punitive damages. on 634 A.2d 538. One dissented, judge reasoning punitive damages could not be (Petrella, J.A.D., awarded under CEPA. Id. at 634 A.2d 538 dissenting).

II defendant, primary issue is whether the local board of education, may vicariously employer public be held liable as a decision, under CEPA for its based on the recommendations of its principal superintendent, plaintiff and not to rehire with tenure complaints plaintiff concerning because of had made health and safety conditions in the school. derivative issue is whether supports the evidence the determination that the conduct of the supervisory “retaliatory officials and the action” board constituted under CEPA.

A. Plaintiff claims that defendant’s decision not to rehire him as a “retaliatory tenured teacher constituted action” under CEPA. He to “objections and refusal fired for his to contends that he was incompatible activity reasonably believed to be he participate in an health, concerning public, the policy clear of with a mandate threatening welfare,” “disclosing to safety and for or and/or supervisors policy practice or of defen- to disclose defendant’s law, rule or reasonably violation of a believes was dant he pursuant law.” regulation promulgated suspension “retaliatory discharge, as “the defines action” CEPA employment action employee, other adverse or demotion of an or employ- employee in and of an the terms conditions taken as additionally asserts that ment.” 34:19-2e. Plaintiff N.J.S.A. “employer,” of under CEPA the board education liable officials, and superintendent of the retaliatory action its CEPA, principal. “employer” is defined as Under group or or association, individual, corporation any person any partnership, acting of or in the of an or on behalf interest indirectly employer directly persons оr Government, all the consent and shall include branches of State with employer’s thereof, or other subdivision any the several counties municipalities political commission, or district, or or State, district, any authority, the a school any special agency or or thereof. or board other instrumentality any added).] (emphasis [N.J.S.A. 34:19-2a Further, principal plaintiff superintendent and claims that the “supervisor” supervisory capacities. The statute defines acted organization who has the to direct individual with an authority any employer’s to take the affected who has authority control work the employee, performance regulation regarding or law, rule of which corrective action violation designated has on the notice or who been employer employee complains, ... act. under this required [N.J.S.A. 2d.] 34:19— jury, that the board charging the trial court declared vicariously any illegal retaliatory acts not would be liable jury principal superintendent attributed its unless known, known, those had or should found that the board have granting agreed to them. In later acts and had ratified complaint, trial court plaintiffs to dismiss defendant’s motion prima not case of plaintiff ruled that had established facie authority to McGarigle because did have the vicarious budget powers and his take corrective action due his limited inability consequently to contract for outside services and was not “supervisor” a under N.J.S.A. 34:19-2d. The trial court also ruled public body may vicariously that under CEPA a not be liable for wrongful illegal employees specifically or acts of its unless it “consents” to those acts. N.J.S.A 34:19-2a. The court further plaintiff had make “to determined that failed to his disclosure beyond supervisor meaning someone ... a of the within required by statute” as N.J.S.A 34:19-3a. unanimously that the trial court Division ruled holding plaintiff prima

had erred that had not established a (1) McGarigle “supervi CEPA case. It concluded that was a facie 34:19-2d, 21-23, under 634 A.2d sor” N.J.S.A. (2) 538; require plaintiff the statute does not to disclose to beyond supervisor,” requires only ... a but disclosure “someone 538; supervisor public body,” “to or id. at A.2d (3) require “specific employer consent” of the CEPA does acts, 25-27, retaliatory to the id. at 634 A.2d 538. The unlawful court, finding Appellate Division reversed the trial that defendant employees, vicariously improper liable for the actions of its Superintendent Principal McGarigle. Edelchik and Id. at A .2d 538.

B. “any employer person group an can or Under CEPA be persons acting directly indirectly of or in the interest or on behalf employer’s employer of an with the consent.” N.J.S.A. 34:19-2a. Further, is, governmental entity, employer such an can be a Government, or the several counties one of the “branches of State thereof, any political municipalities or other subdivision district, State, any special district.” Ibid. The or a school imports provision of CEPA courts below differ over whether determining principles respondeat superior the traditional may vicariously liable for the employer be deemed whether wrongful employees. actions its

416 superior, employer respondeat an the doctrine of

Under if employees its that party the torts of one of a third for is liable to employment. Di scope his or her acting the of employee is within (1982); Gilborges 159, 168-69, 450 A.2d 508 Kay, 91 N.J. Cosala v. (1978). 351, employee is Wallace, 342, An 396 A.2d 338 78 N.J. v. “ the kind employment if the action is ‘of scope of acting within the substantially occurs employed perform; to it is [that servant] actuated, limits; it at space is [and] authorized time and within the Cosala, Di by purpose to serve the master.’” part, in least (Second) 169, (citing A.2d 508 Restatement supra, N.J. at 450 91 (1957) (alteration original)); 1 Lee & § in see J.D. Agency 228 of Lindahl, Liability Litigation Law: and Barry A. Modem Tort (rev. ah, 1993); 7.01, Page et Prosser and § ed. W. Keeton at 186 1984). (5th 70, § at 505 ed. Keeton on Torts Us, Inc., 587, 626 Toys ‘R’ 132 N.J. Recently, in Lehmann v. (1993), imposing the standard for the Court considered A.2d 445 harass employer supervisor’s for sexual liability private on a its Against Discrimination employee under the Law ment of (LAD), agency ruled law 10:5-1 to -42. The Court N.J.S.A damages. employer liability compensatory Id. govern for should agency principles are A.2d 445. It was “satisfied 626 of provide employers with notice sufficiently well-established just provide liability sufficiently flexible to potential and also their presented circumstances great variety in the of factual results purposes accomplish of harassment cases and sexual that “the A.2d 445. The Court noted LAD.” Id. at amending LAD ‘all remedies available Legislature, in to allow actions,’ rules of implied that ‘common law in common law tort apply.” general principles agency law1should liability, including Ibid, Division, (quoting from the (1992) J.A.D., (Skillman, concurring part A.2d 1125 dissenting part)). defining standards was concerned Lehmann with

The Court statutory objectives effec- liability that would achieve for the “eru- purpose of LAD. It characterized legislative tuate the determining liability provided eial issue” to be which standard prevention employment the “most effective intervention Lehmann, supra, discrimination.” 132 N.J. at 626 A.2d 445. issue, Resolving that the Court structured a three-level standard liability employers: determining strict should for relief that in nature. First, Second, apply equitable agency negligence, if an which include should be to decide principles, applied is liable for that exceed that relief. employer compensatory equitable higher negligence than should Third, a level of mere be culpability required damages.

[Id. 445.] at 626 A.2d analysis principles We conclude that the and of Lehmann appropriate are to our consideration of the essential elements of a govern under the cause of action CEPA and hold that standards ing employer liability explained in decision as determined and fully applicable brought are to actions under CEPA. clearly

The in Lehmann indicated that its determination Court scope employer liability LAD of the of under was influenced public policy. 132 626 A.2d 445. considerations of N.J. analysis public policy Those considerations of inform our of the retaliatory scope employer of for conduct under CEPA. protect employees Legislature In 1986 the enacted CEPA to retaliatory by employers. protects from actions That law “whis- tleblowers,” “who, believing that the interest overrides the serves, publicly the organization she] interest of the he ‘blows [or organization corrupt, illegal, if involved in fraudu- whistle’ al., lent, Whistleblowing: activity.” Ralph or harmful Nader et Responsibility vii Report on Professional Conference 1972). stated, al., eds., sponsor the bill’s (Ralph Nader et As “important Jersey to all workers who CEPA’s enactment is New working in a honest are concerned about safe environment with Lamendola, Safeguards Enacted employers.” Linda ‘Whistle- 8, 1986, blowers”, signing Ledger, Sept. at 1. When The Star law, purpose: explained Kean CEPA’s whistleblower Governor true —that conscientious nonetheless, employees but, It is most unfortunate — illegal calling to subjected firing, attention demotion or to suspension have been or her on the of his employer. activity part brought light illegal just to activities have not been unfortunate that It is as that his or her on the of an fear part employee because of the deep-seated without recourse. will be taken away livelihood 1986).] (Sept. at 1 News Release [Office Governor, provides the “most standard that the Lehmann are satisfied We retaliatory actions prevention” of intervention and effective A.2d 445. Both CEPA 132 N.J. at against employees. public policies. Each seeks to important LAD effectuate employees protect and to those who overcome the victimization improper or workplace from the in the especially are vulnerable contexts, authority by employers. unlawful both exercise impermissible to avoid or eliminate employers are best situated implement corrective mea employment practices, vindictive sures, policies that will adopt employment enforce and to legislative salutary purposes respective serve to achieve mandates. actions, actions, employer is the in LAD “the

In CEPA reinstate, hire, responsibility promote, power party with action.” Id. at pay, and take other remedial provide back fulfill the remedial Consequently, conclude that to A.2d 445. we CEPA, strictly equita for employers should be liable purposes of reinstatement, pay of back restoration relief in the nature of ble and the like.

Further, hold, respect held with to em we as Lehmann actions, respondeat doctrine of ployers in LAD that the traditional dаmages liability compensatory employer for superior governs provide ‍​​‌‌​​​‌​‌​​​​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌​​​​​​‌‌​‍just “sufficiently Agency law is flexible under CEPA. by variety presented [the great in of circumstances results n accomplish the and to retaliatory discharge whistleblowers] Lehmann, supra, 132 N.J. at 626 purposes [CEPA].” See A .2d 445.

Similarly, just imposed higher as the Lehmann Court actions, liability punitive damages standard of for in LAD id. at 624-26, imposing liability 626 A.2d a stricter standard for Therefore, punitive appropriate in CEPA actions. actions, employer CEPA “the should be liable for dam ages only participation upper manage the event of actual ment or willful indifference.” Id. at 626 A 445. The .2d expressed greater Division “A that stricter standard: negligence applied threshold than mere should be to measure liability employer punitive damages; they are to be awarded wrongdoer’s especially egregious ‘only when the conduct is but participation by upper management the event of actual or willful ” (quoting indifference.’ at 634 A.2d 538 Lehmann, 624-25, 445); supra, A 132 N.J. at 626 .2d see discussion 425-433, at 650 A.2d at 968-972. infra argued liability Defendant has the Lehmann framework apply statutory purposes should not to CEPA bеcause its elements demand a different and stricter standard.

First, agency principles defendant asserts that traditional actions, appropriate are not unlike under CEPA because CEPA actions, However, require showing LAD of intent. [a]ccording to the trend of modem of an for the authority, employer injurious acts of his whether the act of the employee depends upon employee was and intentional or was but unintentional, wilful whether upon employee, wrong, acting when he did the in the business prosecution employer’s and within the of his or had aside from that business and authority, scope stepped wrong. done an individual (1970).] § [53 Am.Jur.2d Master & Servant Lehmann, Prosser, 445; supra, See 132 N.J. A.2d W. (7th 1982) al., (“Respon Torts 685 et Cases Materials on ed. superior negligent employer may is not torts. An deat limited they be held hable for the intentional torts of his^servant when are reasonably employment connected and so within its with Therefore, CEPA, ‘scope.’”). though even it covers intentional conduct, preclude application agency does not of traditional principles. 34:19-2a, CEPA, unlike

Second, argues that N.J.S.A. defendant employer to the LAD, of the “specific the consent” requires liability. In so employees as a basis for of its improper actions actions under analogizes actions to federal doing, CEPA defendant rejects 1983, interpretation of which prevailing § the 42 U.S.C.A. actions respondeat superior such principles of the traditional City Dep’t agencies. Monell v. New York government 2018, (1978). 658, Servs., 56 L.Ed.2d 611 98 S.Ct. 436 U.S. Social However, distinguishable from CEPA. 1983 is section government imposes on a “plainly language of section employee to that, policy, ‘causes’ an some official under color of 692, 98 S.Ct. at rights.” Id. at constitutional violate another’s Further, respondeat imposition L.Ed.2d at 636. contrary is to that statute’s superior 1983 actions for section rejection by express Con history, included the legislative which liability. provided for vicarious language that would have gress of 692-93, 636-37. at 56 L.Ed.2d at 98 S.Ct. Id. requirement “consent” does section CEPA’s Unlike policy” be an element of an “official imply that the effectuation give rise to a сause of conduct in order to public employer’s applies governmental bod Although specifically action. CEPA employers, public as N.J.S.A and includes school districts ies 34:19-2a, private between it draws no distinctions 817-18, 105 Tuttle, City 471 U.S. employers. v. Oklahoma Cf. (1985) (noting 2427, 2433, 85 L.Ed.2d 800-01 S.Ct. Amendment, rejected enacting Congress Sherman section damages to responsible for municipalities held “would have which Thus, because by private persons”). persons property caused employer conduct of whether policy” is not determinant “official CEPA, legislative intent based on infer no actionable under we “specific consent” of an analogy to section 1983 statutory As standard. an element employer constitutes by Division, requirement of “consent” found responsibility for the assessing its employer an element simply reflecting understood as employees must be actions of its

421 agent respondeat superior princi principal “normal as well as ples.” N.J.Super. Id. 269 at 634 A.2d 538. conclude, Division, Appellate Legisla as did the that “the

We liability applicable turе intended that the same rules of vicarious private principals applied also be to entities.” 269 27-28, that, N.J.Super. at 634 A.2d 538. We hold consistent with intendment, legislative determining that the standard for vicarious Lehmann, importing as determined this Court agency principles, applies compen traditional actions for CEPA satory damages retaliatory based on conduct.

C. Appellate amply Division found the evidence supports jury determination that the actions of the board’s superintendent principal retaliatory conduct in constituted McGarigle high-level violation of CEPA. and Edelchik were employees responsible shop, for conditions in the who were job evaluating plaintiffs performance, making and for tenure Lehmann, employer As this noted in recommendations. Court supervisory employee acting scope employ within the whose supervisor’s improper ment liable for that conduct. 132 will be at 619, Accordingly, N.J. 626 A.2d 445. we sustain the McGarigle Division determination that the actions of and Edel ehik, specifically plaintiff their recоmmendation that not be re tenure, scope employment. hired with were within the of their 27-28, N.J.Super. at 634 A.2d 538. help scope authority The tenure laws define the superintendent principal in this those exercised case. Under laws, generally acquire beginning a teacher will tenure at During year employment. the fourth 18A:28-5. N.J.S.A. years, hire the teacher for ten- teacher’s first three school districts acquired September from to June. Tenure is not month contracts year. if for the fourth the teacher is rehired Plaintiff, teacher, times as a non-tenured was evaluated three year. A.2d 538. Two of the three each remaining McGarigle; the one completed by evaluations were Farino, year Each McGar- vice-principal. by Ernie completed evalua- on those three summary report based igle a final wrote who, turn, to Edelchik McGarigle’s were sent summaries tions. his Generally, the board followed the board. them to forwarded Edelchik, in his sixteen According to hiring recommendations. principal’s overturned a Superintendent he had never years as and, turn, in the board not to rehire a teacher recommendation a teacher. not to rehire his recommendation had never overturned report, McGarigle was summary evaluation In the 1985-86 plaintiff as com- performance. He rated by plaintiffs impressed areas, improve- strengths in no need for having all with petent and “excellent.” were Similarly, plaintiffs 1986-87 evaluations ment. However, McGarigle’s 17, in first evaluation A.2d 538. Id. at 30, 1987, days year, on eleven for the 1987-88 October plaintiff of copies his second letter to McGarigle plaintiff had sent after area, any Edelchik, strengths in having as no plaintiff was marked contrast, in the competent in all areas. although marked as complet- year, was the 1987-88 school which evaluation for second 8, 1987, plaintiff was by vice-principal Farino on December ed strength and as having as a teacher twelve areas marked 18, days A.2d Three every area. Id. at 538. competent conditions, on plaintiff about health receiving the letter from after McGarigle completed the third evaluation Jаnuary area, every plaintiff competent but plaintiff again and found any strengths. Ibid. without plaintiff stating McGarigle a letter to sent

On March recommending plaintiff rehired in be McGarigle was not as a tenured year Quibbletown Middle School with his fourth teaching perform his plaintiff unable to was teacher because exactly not remember McGarigle testified that he did duties. rehiring, plaintiff for to recommend he had decided not when or before March 17. made that decision on except that he had summary Nevertheless, McGarigle complete a evaluation did 24, 1988. plaintiff on March retaliatory nature eventuating of the course of action in the plaintiff

board’s final decision not to rehire based on the recom- supervisory employees mendation of its is chronicled Thus, meeting plaintiff Division. after with September McGarigle Schweitzer in plaintiff summoned office, angrily back to his stated: going thing. got Mr. I’m to P’n Abbamont, tell one I’ve five you left this years god until I retire and I don’t need another damn Carl Schweitzer. Do place you I understand? want to understand thаt Mr. Schweitzer has tenure and do you you saying? not. Do understand what I am you Further, in an Papariello January altercation with at the end of shop’s quality, Papariello plaintiff, 1988 about the air told “this is your year going you something, you’ll tenure and I’m to tell never record, According Superintendent see it.” Ibid. to the Assistant Secretary Guy of Schools and Board Vander also told Vhet plaintiff: you. “I’ll maybe you be truthful with I think that should go your way Piscataway go way.” will the other Ibid. The morning, following Vliet, next that conversation with Vander who, McGarigle, according plaintiff, mad,” “extremely stated, do, you you coming “I don’t care what ain’t back. There’s going get you years no tenure. You’re not it. I warned three ago going you I’m I’ll good my promise, you’re and to tell make on going get 18-19, to tenure.” Id. 634 A.2d 538. addition, supports finding plaintiffs the record the that were, CEPA, complaints required as under based on a reasonable shop belief that the conditions the metal were violation of an “regulation promulgated pursuant administrative to law” and were contrary policy public concerning public to “a clear mandate of the health, safety protection or welfare or of the environment.” provides:

N.J.S.A. 34:19-3 An shall not action an take because employer any retaliatory employee following: the does the employee any a. or threatens to disclose to a or to a an Discloses, supervisor public body or ... that activity, policy practice employer employee reasonably regulation promulgated believes is in violation of a a to law, law; or rule or pursuant Objects or which in any activity, policy practice e. or refuses to to, participate believes: reasonably employee (1) regulation promulgated law; a rule or law, pursuant in violation of a or is (2) criminal; is fraudulent or concerning (3) a clear mandate of with public policy incompatible of the environment. or welfare or health, safety protection safety of health and adminis the existence

Plaintiff established public policy regulations and a clear mandate rules and trative shop, required under the metal as applicable to conditions of 3c(3). Papariello distributed In December N.J.S.A. 34:19— Safety Jersey Education Industrial Arts entitled “New booklet Jersey of the 1977 New guide included Title 6 The Guide.” Standard”), (“Vocational Safety Education Administrative Code 6, and the “National Standard School amendment to Title the 1982 guide The also included Shop Safety Inspection Check List.” “dependable ‍​​‌‌​​​‌​‌​​​​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌​​​​​​‌‌​‍specifically requires regulation that administrative air provides “a minimum amount of outdoor ventilation” types for different of industrial supply and exhaust on movement” accompa arts, 6:22-5.2. It was including metal work. N.J.AC. explained by Papariello that by memorandum written nied a cover arts teachers to read the guide, instructed the industrial materials, adopting the them that the board was and informed safety guide.” N.J.Super. at safety guide “our official directly specifically regulations thus and 634 A.2d 538. The fully safety reflected a matters of health and addressed health, relating general concerns of public policy mandate proteсtion. safety environmental reasonable, objective belief that demonstrated “a Plaintiff also specific violation” of those of the school officials was the conduct public policy “incompatible” with their regulatory standards and description of the lack of ventilation mandate. Plaintiffs own shop and its corroboration Schweit- poor quality air pulmonary prob- testimony plaintiffs work-related zer’s as well as objectivi- the reasonableness of belief. lems underscore reasonableness, further evidenced ty, of that belief was as well as ventilation, Goldberg, Mark by opinion plaintiffs expert on the of hygienist, operating an industrial who testified that the machines unsafe, plaintiffs shop in without ventilation hoods individual given gases by melting the emissions of fumes and created of the plasties welding by of metals as well as the dust created grinding of metals.

D. conclude, Division, Appellate plaintiff We did the estab- supports lished a cause of action under The CEPA. evidence defendant, supervisory employees determination that the board"' education, principal superintendent, engaged its in retalia- tory against plaintiff complaints action for his based on his reason- objective contrary able and belief that conditions at work were regulations law and violated administrative rules and and were incompatible public policy. with a clear mandate of The recom- tenure, plaintiff accepted mendation not to rehire with which was board, by scope authority was within the of the of those action, supervisors. agency principles That under well-established respondeat superior, constitutes the basis for board’s plaintiff compensatory damages under vicarious CEPA.

Ill majority Appellate Division determined that punitive damages in amend were available under CEPA because LAD, provided only ing Legislature both CEPA jury tort trials but also for remedies available common-law concluded, majority “Allowing plaintiff the actions. The further actions, remedy remedies available in common law tort jury, punitive damages be decided as it is herein should A.2d 538. common tort actions.” 269 law agree. light in the Division and We of the dissents Court, may explain fully why punitive damages be this we more why punitive imposed against employer under CEPA and 426 by jury fact- a an issue to be resolved

damages under CEPA is finder. CEPA, language of reading of the and unconstrained

A sensible light of the Tort of CEPA provisions of the a consideration 59:13-5, (TCA), a of CEPA’s review N.J.S.A. 59:1-1 Claims Act underlying policy understanding of the history, an legislative entities, damages against public awarding punitive concerns purpose persuade us that remedial of CEPA’s an examination against public punitive damages does allow award CEPA entities. Legislature provid- that the plain reading of CEPA indicates

A punitive dam- could be awarded prevailing ed that whistleblowers expressly and 34:19-2a ages against public entities. N.J.S.A pub- “employer[s]” that are against actions specifically authorizes entities, 34:19- or “board.” N.J.S.A such as a “school district” lic taking retaliato- public employers from expressly prohibits such specifies: further ry against employees. CEPA actions jury a trial shall be directed try validity of any application party, Uрon in this suit. All remedies available claim under this act of any specified prevailing These be available to plaintiffs. law tort actions shall common legal act or relief this any in addition to or provided by remedies are any equitable order: statute. The court also may other damages ... f. Punitive added).] (emphasis [N.J.S.A. 34:19-5 “[u]pon are provides punitive that available CEPA thus 5f; provisions of this act.” N.J.S.A any violation 34:19— Dist., Indep. 957 F.2d Knowlton v. Greenwood Sch. see also Cir.1992) (5th puni- (rejecting argument that school district’s entity against public under Texas damages are unavailable tive plain language of statute allowed law because whistleblower against gov- “local damages” provided for claims “exemplary districts). public body,” included school ernmental which Further, precludes specific provision exists no CEPA against public employers. That punitive damages awarding of point, TCA is purposeful. On omission must be deemed immunity against sovereign That Act reestablished instructive. statutory is a declaration of “except claims where there tort (1984). Deiner, 465, 472, A.2d 393 liаbility.” v. 97 N.J. Burke exemplary damages expressly provides that “[n]o TCA entity.” 59:9-2c. N.J.S.A shall be awarded ability the exemplifies Legislature’s the to exclude thus TCA it so availability punitive damages against entities when of (providing recovery “no 59:13-3 chooses. See also N.J.SA damages arising of contract” against punitive for ... out the State Act). Liability duly by noted the As allowed under Contractual majority, Legislature “If intended to ex Appellate Division damages it did empt public punitive [as entities from under CEPA 30, 269 ... it would have done so...” TCA] under Moines, 612, 538; 262 2d Young City v. Des N.W. 634 A.2d see of 1978) (Iowa exempt to (noting legislature that if had intended 622 damages in liability punitive for municipal corporations from so; therefore, actions, easily done wrongful death it could have Act, “specifically precluded” which despite state Tort Claims immunity damages, legislature’s “failure to include a like punitive scarcely be corporations statute] arrest can municipal [in for false (The oversight”) or Iowa Code attributed to inadvertence liability punitive exempt municipalities from later amended 613A.4(5)); § Ann. damages wrongful death actions. Iowa Code Auth., 525-26 341 S.E.2d Housing 316 N.C. Jackson v. (1986) city wrong damages against (ruling punitive recoverable statutory excep legislature had created action because ful-death awarding punitive damages against prohibition common-law tion to damages providing punitive against city by specifically damages “person” whom such limiting definition of Dep’t corporations); Texas municipal exclude could be awarded to Green, (Tex.Ct.App.1993) Human Servs. v. S.W.2d governmental (holding Act “waives State’s that Whistleblower government and local immunity from of state from suit (“In Lindahl, 21.31, entities”); § a small supra, at 791 Lee & governmen jurisdictions held that a it has either been number damages resulting from the punitive entity liable for the tal will be wrongful agents, authority conduct its there limited from argued governmental entity which it could be that the would be circumstances.”). given compelling ... liable legislative history punitive buttresses the conclusion that damages In Legislature are recoverable under CEPA. grant plaintiffs right amended both CEPA and LAD to to a jury prevailing parties trial and to make available to those reme doing, Legislature dies available in common-law torts. so expressly Bancorp., reversed Shaner v. Horizon 116 N.J. (1989),in plaintiff bringing A.2d 1130 which this Court ruled that a jury a LAD action was neither entitled to a trial nor the tradition Moreover, al remedies available’in such trial. the failure of the Legislature immunity to include in CEPA from dam ages significant. Legislature or to refer to TCA is When initially CEPA, “logical enacted and later amended reason legislature general [existed] for the have included the Act a provision recovery exemplary damages: for the without such a provision, likely it would have been determined that such were not offending governmental recoverable at all from the body.” City 451, Ingleside Kneuper, See v. 768 S.W.2d 456 short, (Tex.Ct.App.1989). legislative history, although CEPA’s sparse, express imply specific incorporate does not or intent to exemption punitive damages from of TCA. Rheinecker v. Cf. Labs., (S.D.Ohio 1993) 256, F.Supp. (noting Forest 826 257-58 legislature “specifically rejected considered and a draft of the Whistleblower Act punitive which would have includеd ... dam ages”).

Moreover, interpret permitting punitive to damages CEPA as ignore legitimate policy awarding does not concerns about punitive damages against public personal injury entities actions. See, Auth., e.g., Housing Jackson v. N.C.App. 73 326 S.E.2d (1985) (stating traditionally, municipal corporations 299 liability punitive damages have been exonerated from from reasons). personal injury public policy acknowledge cases for We strength militating against punitive considerations

429 Nevertheless, governmental as the damages upon visited bodies. observed, Legislature obviously “The consid Appellate Division CEPA; Legislature yet, the ered these reasons when it enacted damages regarding punitive exception made no for entities N.J.Super. 269 at 634 A.2d 538. relief.” by are in some measure policy Those concerns addressed adopted imposing punitive heightened standard that we have heightened damages against public entities. Lehmann’s Under only if liability, punitive damages may be awarded standard for government is managerial supervisory officials the conduct of or actual egregious and involves willful indifference particularly governmental on that kind of misuse of participation. Based goals of a authority, punitive damages serve to effectuate the discourage eradicate specifically designed to statute that is important interests by employers and to further vindictive action employees public. and the of both compensate generally not to damages are intended Punitive to deter him or her injured party punish the tortfeasor and but (Second) from conduct. See Restatement and others similar (4th 1971); (1979); Prosser, ed. § Law Torts 9-10 Torts W. 117(1) Am.Jur.2d, (1988); § Damages § Damages 25 C.J.S. (1966). punitive transgressed significant, the interest When underlying wrongful damages may appropriate even when be actions, in government. In LAD cases conduct is that of the itself, damages, entity full acts” caused “willful or malicious Layman, v. including punitive, may be awarded. Fuchilla 574, 579, aff'd, (App.Div.1986), 109 N.J. 510 A.2d 281 (1988). Similarly, in Lehmann the Court 537 A.2d 652 standard of imposed a stricter and narrower compensatory damages. 132 N.J. applicable than reasonably have con Legislаture could 626 A.2d 445. constitute a punitive damages under CEPA would cluded that against egregious potent deterrent stringent corrective and supervisory government officials. We wrongdoing by upper-level damages in the including punitive in Legislature the thus defer to 430 against public private as well as em-

remedial arsenal available retaliatory ployers especially conduct. virulent reject argument punitive damages the dissent’s that to allow We implicitly repeals against public entity under CEPA TCA’s awarding statutory prohibition against 34-35, against public N.J.Super. at 634 A.2d 538 entities. 269 (Petrella, P.J.A.D., concurring dissenting). presumption repealer grounded statutory implied the basic every construction rule “that effort should be made to harmonize Green, relating subject the law to the same matter.” State v. (1973) 547, 554, added); (emphasis N.J. 303 A.2d 312 see State v. States, 285, 292, (1965); 44 N.J. 208 A.2d 633 Loboda v. Clark (1963). 424, 434-35, However, Township, 40 193 A.2d 97 N.J. subject TCA and CEPA involve different matter. Fuchilla, 330-32, supra, at 109 N.J. A.2d Court provisions apply not to LAD

ruled that the notice TCA do based, reasoning part, actions. That on the different 334-38, purposes of the two statutes. Id. at 537 A.2d 652. On the hand, purрose LAD is “to in the one abolish ‍​​‌‌​​​‌​‌​​​​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌​​​​​​‌‌​‍discrimination Therefore, place.” Id. at 537 A.2d 652. awards under work only LAD are interests also intended serve individual but hand, public interest. Id. at 537 A .2d652. the other On purpose provide compensation of TCA is “to to tort victims imposing taxpaying without excessive financial burdens on the public.” A 652. “[A] Id. at .2d discrimination claim is Legislature dissimilar to those envisioned to be included because, coverage part, within the of the Tort Claims Act” “[discriminatory Against conduct actionable under the Dis Law exempted crimination is more akin to the malicious or willful acts similarly negligently from the Tort Act than the or inflict Claims Fuchilla, injuries thereby.” supra, covered ed See Moreover, Act “[the Claims] 510 A.2d 281. Tort disavows any purpose rectify or to remedial vindicate societal interests any governmental protect misconduct or to individual right. expressly prohibits exemplary constitutional or civil It thus

431 Fuchilla, under the Act. N.J.S.A. 59:9-2c.” (Handler, J., 344, concurring). supra, 537 652 109 N.J. at A.2d “suggests Hence, purpose different the Court noted that LAD’s Claims] Act Legislature [Tort that did not intend that 335, 652; A.2d N.J. at 537 apply discrimination claims.” 109 to Jersey Supply, 224 New Dist. Water N.J.Su see also McGrath v. Div.1986) (Law 563, 570, (noting “the Tort 540 1350 that per. A.2d action, to causes of such as apply Act does not several Claims rights”). and violation of civil condemnation inverse CEPA, LAD, from purpose like that of is different The LAD, statute, rights like is a civil that of TCA. whistleblower encourage employees to purpose protect to Its statute. workplace discourage activities and to report illegal or unethical in such employers engaging from con private sector purpose, must be considered CEPA duct. Consistent with liberally be legislation and therefore should construed “remedial” Judiciary, Law and Public goal. social important to its effectuate 2872, 2118, Committee, Assembly Bills No. Safety on Statement (1990) under the (indicating that remedies available 2228 “the construed”); also Sabella liberally see act are to be “whistleblower’ 59, 55, (App.Div. Township, N.J.Super. 497 A.2d 896 Lacey 204 v. construed); 1985) liberally (noting that statutes must be remedial 156, N.J.Super. 501 A.2d Kensharper, Inc. v. 206 Metpark Div.1985) (Law will be con (ruling remedial statutes 1068 they meaning to which give the most extensive to words strued LAD, strong public promotes a susceptible). are Like CEPA legislation a reaffirmation of view this policy of the State: “We employer’s an repugnance to an retaliation this State’s statutory rights nothing than assert employee has more who done Legislature preexist recognition protections and a retaliatory dis ing cause of action such tort common-law Co., Mfg. N.J. 115 Lepore National Tool & charge.” v. 463, 470, 540 A.2d (quoting Lepore, 224 557 1371 A.2d (1988)), denied, 107 L.Ed.2d 110 S.Ct. cert. 493 US. deeply (1989). Jersey, committed to “In are New we principle employer’s right that an discharge employee car duty protect ries a correlative perform his freedom to decline to an act that would constitute a violation of a clear mandate of public policy.” Johnson, Inc., D’Agostino v. Johnson & 250, 265, N.J.Super. o.b., (App.Div.1988), 542 44 A.2d 115 N.J. aff'd 491, (1989); Chems., Inc., 559 A.2d 420 see Parker v. M T& 236 451, 457, N.J.Super. (App.Div.1989); 566 A.2d 215 Potter v. Vil Bank, lage 547, N.J.Super. 225 (App.Div.), 543 A.2d 80 certif. denied, 352, (1988). 113 N.J. 550 A.2d 462 conclude, further, punitive

We damages, that which are against entities, available under public CEPA should be deter by jury mined a as the trier of fact. 34:19-5(f) provides

N.J.S.A may” that the “court impose punitive damages. Seemingly, interpreted the trial court that provision justify its punitive damages removal of the issue from jury. However, noted, the the 1990 amendments to CEPA and LAD right created the jury to a trial and common-law tort discussion, 427-428, supra remedies. See at 650 A.2d at In 969. Shaner, overruling supra, 116 N.J. at 561 A.2d which that held “an action Against under the Law Discrimination does right by jury,” entail the to a Legislature trial the sought to treat LAD and CEPA actions like common-law tort actions. In actions, juries common-law tort damages, determine including punitive damages. Assoc., Leimgruber Claridge Ltd., See v. 73 450, 456, (1977) N.J. 375 (noting A.2d 652 that the decision to punitive damages award “rests within the sound discretion of the fact”); Thatcher, trier of Cabakov v. 37 (“It (App.Div.1955) A.2d 298 elementary that the amount of punitive damages against assessed a proper defendant in a case is resting a matter in the sound jury.”); discretion of the 22 Am. (1988) § (noting Jur.2d recovery that punitive damages generally jury, fact). rests with or court when it acts as a trier of Accordingly, provides N.J.S.A 34:19-5 jury “try validity that a any specified claim under this act in the suit.” claims, part damages are of common-law tort punitive

Because “[a]llowing that Division’s conclusion we concur actions, law tort plaintiff available common the remedies by jury, as remedy punitive damages herein should be decided reason actions. There is no to remove it is in common law tort N.J.Super. at 634 A.2d 538. jury.” from the this issue setting is limited: The court’s role jury recognition discretion to determine by Due to the universal broad damages give awarded, when determine and, whether to or withhold punitive jury judicial area of control of exercise of amount to be one awarded, only recognized. over That of control is excessive discretion has been area punitive damage awards. § 813.] [Lee Lindahl, 21.40, & supra, sum, damages are available we conclude pursuant to Lehmann’s heightened employees under CEPA to be determined and those are standard jury as fact-finder. IV court Appellate unanimously found that trial The Division compensation settle had evidence a workers’ properly admitted was introduced parties because the settlement ment between the plaintiff liability, prove that had but to not to establish defendant’s being due safety were violated belief that standards a reasonable 31-33, N.J.Super. at A.2d injuries had suffered. 269 to the he addition, that the trial court Appellate Division found 538. (now4 under Evidence Rule properly its discretion had exercised 403) it admitting because was neither N.J.R.E. in that settlement Ibid. inflammatory unduly prejudicial. nor in erred argues Appellate that the Division Defendant parties’ workers’ court’s admission upholding trial filed two different claim Plaintiff had compensation settlement. disability, the other pulmonary one internal petitions, compensation In the system disability. and nervous for nasal claims, defendant admitted combined the two proceeding, which permanen- exposure resulted which plaintiff had “suffered cy pulmonary “exposed of a nature” and had been to deleterious causing permanency substances of a nasal nature.” A March Approving attorney’s “Order Settlement” included the board stipulation “permanent disability” partial pulmo- of “10% total nary neuropsychiatric, anxiety.” asthmatic bronchitis Appellate

The Division determined that the settlement was prove admissible because it not had been used “to defendant’s plaintiffs compensation workers’ claim.” 269 N.J.Su per. properly at 634 A.2d 538. The court found Evidence Rule 52(1) (now 408) inapplicable N.J.R.E. to admission of the workers’ compensation settlement for the reason that the settlement had prove plaintiff been “offered to had a reasonable belief that safety standards were violated” because the violations had caused plaintiff to exposure suffer illnesses as a result of his to fumes shop. Similarly, the unventilated metal Ibid. Divi properly sion found the settlement admissible under Evidence (now 408) Rule 53 N.J.R.E. because that settlement was offered prove not to compensation liability, defendant’s workers’ but to prove plaintiffs quality reasonable belief that the shop air his Ibid.; City was unsafe. Jersey City, see Wunschel v. 96 N.J. 651, 666-67, (1984) (finding 477 A.2d compensa that workers’ findings, although tion binding, should be admissible as evi appropriate weight, dence trial and accorded depending on faсtors); Chevrolet, number of Thornton v. Potamkin 94 N.J. cf. (1983) 8, 462 (ruling A.2d 133 arbitration award admissible as agency employment evidence in state hearing). discrimination jury board further contends that instructions were plaintiffs “insufficient” and that improper counsel made an state- ment in his summation about the compensation workers’ settle- ment, implying that it constituted an admission “in worker’s' compensation workplace.” court that it maintained unsafe We object note that the board did not jury to the summation or the charge trial, and did not raise those Appellate issues before the merit, Division. We are satisfied that those contentions lack R. occur, plain 2:11-3, not to the level of they do rise and if errors did error, R. 2:10-2.

V affirmed. judgment Appellate of Division is the The POLLOCK, J., dissenting. concurring and exception majority join opinion. the The exception, one I With Legislature did intend that I that is that believe the punitive damages under subject payment of be entities should (CEPA). Act Employee Protection Substantial- the Conscientious in his the ly by Judge Petrella dissent the reasons stated for Division, majority oрinion part I from dissent that Jr., Abbamont, may P. maintain a holding plaintiff, Joseph Township against Piscataway punitive damages claim for of Board Education. borne any punitive-damage award will be

Ultimately, the cost of Piscataway Township. In an era of decreas- taxpayers of by the 2, § taxes, (amending L. c. support see ing legislative 54A:2-1) (decreasing gross-income under rate of taxation N.J.S.A puni- tax), (capping punitive damages, see N.J.S.A. 34:11B-11 $10,000 Act at Family damages for violations of Leave tive $500,000 percent or one defendant’s or suits lesser individual complaints); N.J.S.A. class or director’s worth for actions net products actions (allowing punitive damages 2A:58C-5 willful malice” or “wanton and proves “actual only if claimant consumers, users, safety or others who product disregard of the I that the product”), doubt foreseeably might be harmed overcoming CEPA, thought it was enacting Legislature, when 2(c), (TCA), on N.J.S.A Tort Act Claims ban 59:9— against public That statute entities. awarding punitive awarded damages shall be exemplary provides: “No Ibid. public entity.” at 425- majority opinion recognizes, ante problem, as 968-970, reconciling language of N.J.SA 650 A2d at 59:9-2(c) 34:19-5, with that of N.J.S.A. which states that “[a]ll remedies available in common law tort actions shall be available to prevailing plaintiffs” Broadly read, under CEPA. language N.J.S.A. 34:19-5 encompass could punitive award of damages against employer. statute, however, Absent from the any express authorization punitive of the award of damages against public employers. majority

As the candidly moreover, acknowledges, CEPA’s sparse history support does not specific either “a incorpo- intent to rate exemption punitive TCA,” from ante at 650A 2d at or one “to include damages against public entities,” ibid. In the face of enigmatic legislative such history ‍​​‌‌​​​‌​‌​​​​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​​‌​‌‌​​​​​​‌‌​‍language, Legislature has ample left room for reasonable judges disagree. I believe permitting that not punitive-damage awards public employers is more consistent with the legislative intent. The best solution would be for Legislature to revisit the issue and resolve definitively. it

Justices CLIFFORD join and GARIBALDI in this concurrence/dissent.

For CLIFFORD, HANDLER, affirmance —Justices POLLOCK, O’HERN, GARIBALDI and STEIN —6. part

For reversal on CLIFFORD, III —Justices POLLOCK and GARIBALDI —3.

Case Details

Case Name: Abbamont v. Piscataway Township Board of Education

Court Name: Supreme Court of New Jersey

Date Published: Dec 22, 1994

Citation: 650 A.2d 958

Court Abbreviation: N.J.