Christine Savage v. Township of Neptune
A-2-23 (087229)
SUPREME COURT OF NEW JERSEY
May 7, 2024
Argued January 17, 2024 -- Decided May 7, 2024
RABNER, C.J., writing for a unanimous Court.
This syllabus is not part of the Court‘s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
In this appeal, the Court considers whether a “non-disparagement provision” in a settlement agreement can stop parties from revealing details relating to claims of discrimination, retaliation, or harassment.
Plaintiff Christine Savage began her career as a police officer with the Neptune Township Police Department in 1998. In December 2013, she filed a lawsuit against the Department, the Township of Neptune, and others for sexual harassment, sex discrimination, and retaliation, contrary to the Law Against Discriminatiоn (LAD). The parties entered into a settlement agreement in 2014. Savage filed a second action in April 2016 against a number of the same defendants, alleging that they had violated the settlement agreement and engaged in continuing -- and “intensified” -- sex discrimination, harassment, and retaliation.
The parties entered into another settlement agreement in July 2020. Paragraph 10 of the agreement requires in part that the parties agree not to make or cause others to make any statements “regarding the past behavior of the parties” that “would tend to disparage or impugn the reputation of any party. The parties agree that this non-disparagement provision extends to statements, written or verbal, including but not limited to, the news media, radio, television, . . . government offices or police departments or members of the public.”
A television news show aired a story about the case and an interview with Savage in August 2020. Defendants contend that Savage violated the non-disparagement provision of the settlement agreement during the interview both through comments she made, such as “you abused me for about 8 years,” and comments by the interviewer, such as “Savage says the harassment and retaliation intensified with bogus disciplinary charges.”
Defendants filed a motion to enforce the second settlement agreement. The trial court granted the motion, finding that the LAD barred only non-disclosure and confidentiality agreements and that Savage instead violated a non-disparagement clause. The Appellate Division affirmed in part and reversеd in part. 472 N.J. Super. 291, 314 (App. Div. 2022). Relying on the definitions of non-disclosure and non-disparagement provisions set forth in Black‘s Law Dictionary, the appellate court found the parties’ non-disparagement clause enforceable but held that Savage had not violated it. Ibid. The Court granted certification. 255 N.J. 284 (2023).
HELD: Through
1.
2. The law‘s structure reinforces the conclusion that it encompasses “non-disparagement” provisions that would conceal details about discrimination claims. Subsection (c) of
4. The Court reviews defendants’ specific objections to comments Savage made in a television interview. All of the challenged comments are protected under section 12.8, but paragraph 10 of the settlement agreement, if enforced, would have the effect of preventing Savage from making any of them. The non-disparagement clause in the settlement agreement conflicts with the LAD in that it encompasses and would bar speech the statute protects. It has the effect of concealing details relating to claims of discrimination, retaliation, and harassment, which is directly contrary to the LAD, and it is therefore against public policy and unenforceable. (pp. 22-25)
5. The Court provides guidance for remand and explаins that it upholds the Appellate Division‘s conclusion that defendants are not entitled to attorney‘s fees and costs, albeit for different reasons. (pp. 25-26)
REVERSED in part, AFFIRMED in part, and REMANDED.
JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, FASCIALE, and NORIEGA join in CHIEF JUSTICE RABNER‘s opinion.
Christine Savage,
Plaintiff-Appellant,
v.
Township of Neptune, Neptune Township Police Department, Michael J. Bascom, in an individual and official capacity, and James M. Hunt, in an individual and official capacity,
Defendants-Respondents,
and
Robert Mangold, in an individual and official capacity, Michael McGhee, in an individual and official capacity, Anthony Gualario, in an individual and official capacity, Kevin O‘Donnell, in an individual and official capacity, Vito Gadaleta, in an individual and official capacity, Scott Cox, in an individual and official capacity, Lewis Schlosser, and The Institute for Forensic Psychology,
Defendants.
Argued January 17, 2024
Decided May 7, 2024
Donald F. Burke, Jr., argued the cause for appellant (Law Office of Donald F. Burke, attorneys; Donald F. Burke, on the briefs).
John D. McCarthy argued the cause for respondents (Schenck, Price, Smith & King, attorneys; John D. McCarthy and Joseph Maddaloni, Jr., of counsel and on the brief).
Liza B. Fleming, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Angela Cai, Deputy Solicitor General and Mayur P. Saxena, Assistant Attorney General, of counsel, and Liza B. Fleming and Farng-Yi D. Foo, Deputy Attorney General, on the brief).
Andrew Dwyer argued the cause for amicus curiae National Employment Lawyers Association of New Jersey (The Dwyer Law Firm and Bennet D. Zurоfsky, attorneys; Andrew Dwyer and Bennet D. Zurofsky, of counsel and on the brief).
Raymond M. Baldino submitted a brief on behalf of amicus curiae New Jersey Education Association (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Raymond M. Baldino, of counsel and on the brief, and Richard A. Friedman, on the brief).
CJ Griffin submitted a brief on behalf of amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this appeal, we consider whether a “non-disparagement provision” in a settlement agreement can stop parties from revealing details relating to claims of discrimination, retaliation, or harassment.
Here, a sergeant filed a lawsuit that accused the police department where she worked, as well as others, of discrimination, retaliation, and sexual harassment. The parties ultimately entered into a settlement agreement that prevented both sides from “mak[ing] any statements . . . regarding the past behavior of the parties, which . . . would tend to disparage or impugn the reputation of any party.”
Afterward, a television reporter interviewed the sergeant, and she commented about the matter. Defendants then filed a motion to enforce the settlement agreement.
We find that the Law Against Discrimination (LAD) protects the sergeant‘s statements. In particular,
Through those words, the Legislature removed barriers that previously made it difficult for individuals to report abuse. Survivors of discrimination, retaliation, and harassment now have a legal right to tell their story -- a right that cannot be taken away from them by a settlement agreement.
Because the scope of the agreement in this case would bar individuals from describing an employer‘s discriminatory conduct, the agreement encompasses speech the LAD protects. Defendants also used the agreement to try to hold the sergeant liable for making statеments about her claims of discrimination, retaliation, and sexual harassment, which section 12.8 specifically protects. For those reasons, the non-disparagement clause in the agreement is against public policy and cannot be enforced. We therefore reverse in part, and affirm in part, the judgment of the Appellate Division.
I.
We draw certain background facts from the amended complaint plaintiff filed in 2018.
Savage filed a second action in April 2016 against a number of the same defendants. In an amended complaint, she alleged that defendants violated the settlement agreement and engaged in continuing -- and “intensified” -- sex discrimination, harassment, and retaliation in violation of the LAD, the State Civil Rights Act, and the State Constitution. She asserted that she was “subjected to unfair assessments, arbitrary internal affairs investigations, discriminatory work assignments, discriminatory performance standards and evaluations, and more stringent scrutiny, monitoring and oversight.” Among other things, Savage alleged defendants violated department procedures and ordinanсes “to promote males over females“; failed to train and supervise “employees to ensure compliance with . . . anti-harassment and anti-retaliation” policies; and “fostered a discriminatory, harassing and retaliatory atmosphere.”
Paragraph 10 of the agreement is central to this appeal. It reads in part as follows:
The parties agreе not to make any statements written or verbal, or cause or encourage others to make any statements, written or verbal regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party. The parties agree that this non disparagement provision extends to statements, written or verbal, including but not limited to, the news media, radio, television, . . . government offices or police departments or members of the public.
[(emphasis added).]
The trial court dismissed the case as settled on July 24, 2020.
A television news show, NBC 4 New York, aired a story about the case on August 11, 2020. The segment included a recent interview news reporter Sarah Wallace conducted with Savage, as well as a short clip from a prior interview. Defendants contend that Savage violated thе non-disparagement provision of the settlement agreement during the interview.
Reporter (introducing segment): We have an I-Team exclusive update tonight. A major win for a former police sergeant who sued Neptune Township in central New Jersey for sex discrimination. Now a settlement. Investigative reporter Sarah Wallace has covered the legal battle for years and joins us now with details of a closing chapter.
Savage: I feel vindicated.
Wallace: Neptune Township‘s only female police sergeant, Christine Savage, claiming a legal victory. The 46-year-old agreeing to settle a contentious sexual discrimination lawsuit which she first filed against her superiors in 2013.
Savage: My integrity‘s intact and I get to keep my rank, you couldn‘t fire me, you couldn‘t demote me, you abused me, you abused me for about 8 years.
Wallace: Savage says the harassment and retaliation intensified with bogus disciplinary charges.
Savage: I never asked for special treatment, I just asked for the same treatment.
Wallace: In 2018, she was put on unpaid leave after being found unfit for duty during a psych exam. The sergeant claims it was a set up.
Savage: They wouldn‘t tell me what it was that determined me unfit.
Wallace: She spoke out then for the first time to the I-Team.
Savage: I‘m being financially choked out.
Wallace: Savage fought back in court. The result, one hearing after another, and a back and forth series of other psych exams.
Savage: But I passed 5 fitness for duties, 5, and at no point in time was I put back to work.
Wallace: She never got back in uniform, but the Township finally agreed to put her back on the payroll and then a settlement offer for this veteran who will retire with 25 years on the job, with full benefits, back pay and all disciplinary charges dismissed. The Township denies any improper conduct.
Wallace: What do you say to other whistleblowers?
Savage: Stand your ground. Don‘t submit.
Wallace: I‘ve seen the toll it has taken on you over the years. Was it worth it?
Savage: It is worth it. If you have the integrity, and the strength to stand your ground and stand up for what‘s right then that‘s worth its weight in gold.
Wallace: But Savage also believes women will continue to face an uphill battle for equal promotions within her department.
Savage: I really don‘t think you‘re ever going to see another female sergeant, lieutenant, captain or above.
Wallace: Because?
Savage: Because we‘re oppressed. They don‘t want women there.
Wallace: Has it not changed?
Savage: It has not changed, not for a minute. It‘s not gonna change, it‘s the good ol’ boy system.
Several weeks after thе interview aired, defendants filed a motion to enforce the second settlement agreement. The trial court granted the motion.
The court found the LAD barred only non-disclosure and confidentiality agreements, and that Savage instead violated a non-disparagement clause, which was enforceable. The court ordered Savage to “abide by the non-disparagement clause” and “directed [her] to refrain from making any further statements, or conducting any further interviews, which disparage the Defendants in violation of the settlement agreement.” The court denied defendants’ request for $23,206.38 in damages but awarded defendants $4,917.50 in counsel fees and costs. The trial court denied Savage‘s cross-motion for counsel fees and costs.
The Appellate Division affirmed in part and reversed in part. Savage v. Township of Neptune, 472 N.J. Super. 291, 314 (App. Div. 2022). It held that the non-disparagement clause was enforceable but that Savage had not violated it. Ibid.
For support, the Appellate Division looked to Black‘s Law Dictionary, which defined “[a] nondisclosure or confidentiality clause [as] a ‘clause prohibiting the parties to an agreement from disclosing to nonparties the terms of the agreement and, often, anything related to the formation of the agreement.‘” Ibid. (quoting Black‘s Law Dictionary 315 (11th ed. 2019)). “In contrast,” the court observed, “a non-disparagement clause is a ‘contractual provision prohibiting the parties from publicly communicating anything negative about each other.‘” Ibid. (quoting Black‘s Law Dictionary 315).
The court concluded, in essence, that “[t]he Legislature could have, but did not, prohibit the enforcement of non-disparagement provisions.” Id. at 308. In the appellate court‘s view, the legislative history likewise “did not
Parsing the statements made in the interview, however, the Appellate Division held they did not violate the provision. Id. at 314. The court found that Savage‘s comments toward the end of the interview were “about present or future behavior,” not “past behavior,” and that the “plain language of the agreement” barred only the latter. Id. at 313-14.
Accordingly, the Appellate Division vacated the award of counsel fees and costs to defendants and affirmed the trial court‘s order denying counsel fees and costs to plaintiff. Id. at 314.
We granted Savage‘s petition for certification. 255 N.J. 284 (2023). We also granted leave to the Attorney General, the New Jersey Association for Justice (NJAJ), the New Jersey Education Association (NJEA), and Libertarians for Transparent Government (LTG) to participate as friends of the court. The National Employment Lawyers Association of New Jersey (NELA) first appeared before the Appellate Division as an amicus and has remained in the case. See R. 1:13-9(d).
II.
Savage argues that the Appellate Division‘s analysis is flawed. She submits that by focusing on the label used in the settlement agreement in this
Defendants ask the Court to uphold the Appellate Division‘s ruling. They contend that section 12.8 does not apply here because it only addresses non-disclosure provisions and neither addresses nor prohibits non-disparagement clauses. In addition, defendants maintain that Savage “blatantly ignored the non-disparagement clause during” the interview with NBC News. Defendants also submit that eliminating non-disparagement clauses “would discourage settlement by both employers and employees.”
Amici all support Savage‘s position. They argue that the LAD bars any clause in a settlement agreement that has the purpose or effect of concealing details relating to claims of discrimination, retaliation, or harassment, regardless of the label attached to the clause. And they contend the non-disparagement clause in this case has that very purpose and effect.
Amici also point to section 12.8‘s legislative history for support. The NJAJ contends the amendment to the LAD was meant “to end provisions in settlement agreements used to silence and intimidate survivors of sexual
III.
A.
In this case of statutory interpretation, our review is de novo. DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 181 (2024). To interpret the meaning of a statute, courts seek “to determine and give effect to the Legislature‘s intent.” In re Registrant H.D., 241 N.J. 412, 418 (2020) (quoting DYFS v. A.L., 213 N.J. 1, 20 (2013)). The “‘best indicator’ of legislative intent” is typically the plain language of the statute. W.S. v. Hildreth, 252 N.J. 506, 518 (2023) (quoting State v. Lane, 251 N.J. 84, 94 (2022)). We also read each part of a statute “in context with related provisions so as to give sense to the legislation as a whole.” DiProspero v. Penn, 183 N.J. 477, 492 (2005).
If the plain language of a statute is clear, our task is complete. If the text is ambiguous, we can turn to extrinsic evidence including relevant legislative history for guidance. Sanjuan v. Sch. Dist. of W. N.Y., 256 N.J. 369, 379
B.
This case turns on the meaning of a section in New Jersey‘s Law Against Discrimination. The LAD is remedial legislation that must “be liberally construed.”
C.
The proper starting point is the plain language of the statute.
A provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment (hereinafter
referred to as a “non-disclosure provision“) shall be deemed against public policy and unenforceable against a current or former employee (hereinafter referred to as an “employee“) who is a party to the contract or settlement. If the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable, then the non-disclosure provision shall also be unenforceable against the employer.
[(emphasis added).]
Subsection (c) exempts non-competition clauses and agreements not to disclose trade secrets or proprietary information from the above rule; in other words, those clauses can be included in settlement agreements.
The text of the statute reveals its meaning and scope. The law‘s critical language -- highlighted in the first sentence above -- bars provisions in settlement agreements that have “the purpose or effect of concealing the details relating to a claim of discriminаtion, retaliation, or harassment.”
“When the Legislature sets out to define a specific term,” as it did here, “‘‘courts are bound by that definition.‘” State v. S.B., 230 N.J. 62, 68 (2017) (quoting Febbi v. Bd. of Rev., 35 N.J. 601, 606 (1961)); see also Van Buren v.
Our focus, therefore, belongs on the law‘s operative terms, which ask whether a provision in аn employment contract or a settlement agreement “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.”
In theory, parties can agree not to disparage one another by disclosing information that has nothing to do with “details relating to . . . claim[s] of discrimination, retaliation, or harassment.” See ibid. For example, parties could agree not to disclose details about their personal lives or matters unrelated to a discrimination claim -- like “my employer drinks heavily at work” or “cheats on his taxes.” Such an agrеement, however, would have to be narrowly drawn to ensure that details relating to the claims listed in section 12.8 could be revealed publicly.
Certain language in section 12.8 also supports a broad reading of the statute. Section 12.8 bars the concealment of details ”relating to” a claim of discrimination, retaliation, or harassment. Ibid. (emphasis added). “The ordinary meaning of [the phrase ‘relating to‘] is a broad one -- to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quotation and quotation marks omitted).
For all of those reasons, we find that the meaning of section 12.8 turns on what the law says, not on any labels applied to it, and that the statute has a broad reach.
D.
The statute‘s legislative history, though not needed to understand section 12.8‘s clear language, see DCPP v. D.C.A., 256 N.J. 4, 19 (2023), reinforces the law‘s plain meaning. Section 12.8 was enacted in the wakе of the “#MeToo” movement1 to protect individuals who suffer sexual harassment,
In describing Senate Bill 121, later codified as
[a]n important step in delivering meaningful reform is the legislation that would make non-disclosure agreements in cases of sexual assault and sexual harassment unenforceable against employees who are survivors. These non-disclosure agreements have been used to silence and intimidate survivors of sexual assault and harassment as well as victims of discrimination and retaliation. Limiting these so-called confidentiality agreements will help eliminate the secrecy that too often allows abuses to continue. It should no longer be appropriate to buy forced silence that further victimizes assault survivors.
[Savage, 472 N.J. Super. at 309 (quoting Letter from Sen. Loretta Weinberg to the 67 Women Who Spoke Out in Support of Legislative Hearings that Support Sexual Assault Victims and Lead to Meaningful Reforms, at 1 (Feb. 20, 2019)).]
The sponsor‘s statement in support of the legislation stated the bill would “bar certain agreements that conceal details relating to discrimination claims.” Sponsor‘s Statement to S. 121 3 (L. 2019, c. 39). At a meeting of the
Amici also point to proposed amendments to section 12.8 that would add -- and bar -- “non-disparagement” provisions. See A. 4521 (Sept. 22, 2022). We cannot, however, rely on “attempts to amend a statute in order to interpret it.” O‘Donnell, 255 N.J. at 79.
A.
Paragraph 10 of the settlement agreement uses expansive language that encоmpasses speech about claims of discrimination, retaliation, and harassment. The clause reads in full as follows:
10. The parties agree not to make any statements written or verbal, or cause or encourage others to make any statements, written or verbal regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party. The parties agree that this non disparagement provision extends to statements, written or verbal, including but not limited to, the news media, radio, television, internet postings of any kind, blogs, social media, (e.g., Facebook, Instagram, Twitter, or the like), consumer or trade bureaus, other state, county or local government offices or police departments or members of the public. Neptune Township will respond to inquiries from prospective employers with dates of employment аnd positions held. The parties agree that non-disparagement is a material term of this Agreement and that in the event of a breach, the non-breaching party may seek enforcement of the non-disparagement provision and damages for its breach, and that the filing of any such action would not be deemed a breach of this Agreement. Nothing herein shall be construed as prohibiting or precluding in any way testimony or statements of Plaintiff related to other proceedings including lawsuits.
[(emphases added.)]
The scope of the agreement -- barring all statements that would tend to disparage a person -- is quite broad. To accuse someone of misconduct is to
The carveout at the end of paragraph 10 does not save the agreement. The last sentence of the paragraph states that “testimony or statements of Plaintiff related to other proceedings including lawsuits” is not precluded. (emphasis added). Section 12.8‘s protections, however, extend beyond statements made in pleadings or courtrooms. Survivors of discrimination and harassment have the right to speak about their experiences in any number of wаys, and they can no longer be restrained by confidentiality provisions in employment contracts or settlement agreements.
B.
Defendants’ specific objections to comments Savage made in a television interview make clear how the settlement agreement in this case runs afoul of the LAD. Defendants also challenge comments the reporter made,
Defendants challenge two types of comments that Savage made. Some relate directly to her discrimination, retaliation, and harassment claims; others relate more generally or indirectly to those claims. Both are protected. Seсtion 12.8 extends to “details relating to a claim of discrimination,” not just details that relate “directly” to such a claim.
The following comments that defendants challenge relate to Savage‘s claims of discrimination, retaliation, or harassment:
- “[Y]ou abused me, you abused me for about 8 years.”
- “Savage says the harassment and retaliation intensified with bogus disciplinary charges.”
- “In 2018, she was put on unpaid leave after being found unfit for duty during a psych exam. The sergeant claims it was a set up.”
- “I‘m being financially choked out.” [This statement was made during a prior interview.]
Other comments defendants challenge relate more generally to Savage‘s claims:
- “Savage also believes women will continue to face an uphill battle for equal promotions within her department.”
“Because we‘re oppressed. They don‘t want women there.” - “It has not changed, not for a minute. It‘s not gonna change, it‘s the gоod ol’ boy system.”
The above statements are all protected under the LAD. Certain comments relate to allegations in Savage‘s complaint. See, e.g., First Am. Compl., ¶¶ 47, 95 (discrimination); ¶¶ 48, 95 (retaliation); ¶¶ 40, 47, 95 (harassment). Some statements, in fact, mirror specific allegations in the complaint. See, e.g., id. ¶ 57 (asserting the Police Chief stated “‘this is a male dominated field’ and it is ‘not going to change‘“); ¶¶ 84, 89, 92 (asserting that promotions were designed to “maintain the ‘old boys’ network‘” and that men received favored treatment); ¶¶ 130, 132 (placement on unpaid leave).
Although the comments are therefore protected under section 12.8, paragraph 10 of the settlement agreement, if enforced, would have the effect of preventing Savage from making any of them.
We note as well that рaragraph 10 barred statements relating only to “the past behavior of the parties.” (emphasis added). Had the settlement agreement survived scrutiny, defendants could not have relied on it to challenge comments about present or future events.
We find that the non-disparagement clause conflicts with the LAD in that it encompasses and would bar speech the statute protects -- “details relating to a claim of discrimination, retaliation, or harassment.”
The effect of this nоn-disparagement clause, therefore, is to conceal details relating to claims of discrimination, retaliation, and harassment, which is directly contrary to the LAD. See ibid. For those reasons, we hold that the non-disparagement clause in the settlement agreement is against public policy and unenforceable.
In light of our findings under the LAD, we decline to consider arguments related to the National Labor Relations Act or the First Amendment, which certain amici advance.
V.
In sum, we find that paragraph 10 of the settlement agreement is against public policy and cannot be enforced. To the extent any limitations remain in
We also remand the matter to the trial court to allow Savage to apply for reasonable attorney‘s fees and costs consistent with
The judgment of the Appellate Division is reversed in part and affirmed in part, and the matter is remanded to the trial court for further proceedings.
JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, FASCIALE, and NORIEGA join in CHIEF JUSTICE RABNER‘s opinion.