JOSEPH A. DONELSON, PLAINTIFF, AND JOHN SEDDON, PLAINTIFF-APPELLANT, v. DUPONT CHAMBERS WORKS, DEFENDANT-RESPONDENT, AND PAUL KAISER, DEFENDANT.
Supreme Court of New Jersey
Argued December 1, 2010-Decided June 9, 2011.
20 A.3d 384 | 206 N.J. 243
choose to reconsider who is a newsperson and add new criteria to the Shield Law. We are not foreclosing that discussion today; we are simply interpreting an existing and far-reaching statute.
For the reasons set forth above, we affirm and modify the judgment of the Appellate Division and remand to the trial court for further proceedings consistent with this opinion.
Not Participating-Justices LONG and RIVERA-SOTO.
For affirmance as Modified/Remandment-Chief Justice RABNER, and Justices LaVECCHIA, ALBIN, HOENS, and Judge STERN (temporarily assigned)-5.
Opposed-None.
Christopher H. Mills submitted a brief on behalf of amicus curiae Academy of New Jersey Management (Fisher & Phillips, attorneys; Mr. Mills and David J. Treibman, on the brief).
Ty Hyderally, President, submitted a brief on behalf of amicus curiae National Employment Lawyers Association/New Jersey (Hyderally & Associates, attorneys; Mr. Hyderally and Francine R. Foner, on the brief).
Justice ALBIN delivered the opinion of the Court.
A jury determined that DuPont Chambers Works1 (DuPont) violated the Conscientious Employee Protection Act (also referred to as CEPA),
The Appellate Division overturned the verdict and damages award, reasoning that the trial judge erred by not instructing the jury that Seddon could be awarded lost wages only if he was constructively discharged. According to the Appellate Division, Seddon was not entitled to lost wages unless “[t]he employer‘s conduct [was] ‘so intolerable that a reasonable person would be forced to resign rather than continue to endure it.‘” Donelson v. DuPont Chambers Works, 412 N.J.Super. 17, 31, 988 A.2d 604 (App.Div.2010) (citation and quotation omitted).
We now reverse the Appellate Division. Constructive discharge is but one ground for recovery of lost wages under CEPA. CEPA does not permit an employer to take an “adverse employment action” against an employee for reporting workplace-safety violations.
We therefore reinstate the jury‘s verdict and award of damages.
I.
Defendant DuPont, which manufactures chemical products, employed plaintiff John Seddon for approximately thirty years.2 In December 2002, Seddon was an operator technician in the phosgene building
In December 2002, Seddon expressed to a shift manager his concern about the dangerous manner in which DuPont‘s security guards were conducting random searches of employees’ cars at nighttime. Drivers were made to exit from their cars at the front gate and stand unprotected in the dark while passing traffic, including trucks, whizzed by.4 Because DuPont did nothing to ameliorate the safety hazards caused by these stops, Seddon filed a complaint with the federal Occupational Safety and Health Administration (OSHA).
After DuPont became aware of the OSHA complaint, it appointed Paul Kaiser to serve as Seddon‘s direct shift supervisor. Kaiser began imposing sick- and vacation-day-reporting requirements specific to Seddon, who previously did not report to a shift supervisor.
In October 2003, Seddon filed complaints with DuPont‘s management about unsafe conditions in the operation of the phosgene reactor. Seddon warned that deficiencies in the operation of the reactor could cause an explosion and the release of deadly gasses into the atmosphere, killing and seriously injuring nearby residents. Seddon compared the safety violations relating to the phosgene reactor to those that led to the infamous chemical disaster in Bhopal, India.5 In response, the DuPont Guardian Manual, to which Seddon referred in detailing safety violations, was removed from the phosgene control area where Seddon worked.
A few months later, according to Seddon, Kaiser falsely accused him of forging his timecards. Seddon also stated that, in March 2004, DuPont‘s management falsely accused him of failing to take a proper reading of a caustic chemical and of making a fictitious entry in a log. There followed a negative performance review of Seddon and the institution of performance reviews every three months. During this time period, Kaiser subjected Seddon to constant verbal abuse. Seddon reported to DuPont‘s corporate headquarters that he had become the target of harassment for merely voicing safety concerns.
Although DuPont‘s investigators questioned Seddon about his safety complaints and the ensuing harassment, their attention focused on allegations that Seddon had threatened DuPont employees, including Kaiser-allegations that Seddon categorically denied. In April 2004, based on a recommendation by DuPont‘s employee-assistance counselor, Seddon was placed on short-term disability with pay. During that time, Seddon lost the considerable overtime that he had been earning. As a condition of his reinstatement, DuPont required that Seddon be examined by three mental-health experts and undergo a fit-for-duty evaluation. Three independent evaluators, a psychiatrist and two psychologists,
The suspension, which lasted fifty-three days, made Seddon feel “worthless” and “beaten.” Moreover, DuPont placed Seddon on “probation” subject to performance reviews every three months. Seddon maintained that Kaiser continued to make false accusations that Seddon had threatened him and other employees. Interactions with Kaiser caused Seddon to suffer anxiety attacks, and Seddon lived in constant fear that he would become the target of continued false charges of misconduct.
In September 2006, DuPont required Seddon to work twelve-hour shifts in isolation. For Seddon, working a twelve-hour shift alone was “torture.” One month later, Seddon began seeing a therapist and psychiatrist.
In January 2007, Seddon took a six-month leave of absence. After completing that leave of absence, DuPont gave Seddon a disability pension. Seddon never returned to DuPont.
II.
In February 2005, Seddon filed a civil complaint alleging that defendants DuPont and Kaiser retaliated against him for objecting to activity that he reasonably believed violated New Jersey‘s law and public policy.7 Seddon asserted that the reprisals against him contravened the Conscientious Employee Protection Act,
Seddon‘s complaint was filed while he still worked for DuPont. His case did not come to trial until January 2008, after he left the company‘s employ with a disability pension. Seddon did not amend his complaint to allege a constructive discharge.
At the beginning of the trial in January 2008, DuPont moved to bar Seddon‘s economic-damages claim for front and back pay because he had not pled constructive discharge and DuPont had not terminated him.9 The trial court denied DuPont‘s in limine motion.10 The court held that if Seddon could prove that DuPont‘s retaliation caused him to suffer a psychological breakdown that led to his acceptance of an early disability retirement, then he would be entitled to the difference between the wages he would
During a several-week trial, numerous witnesses testified, including Seddon‘s psychological experts, who concluded that Seddon was mentally disabled as a result of DuPont‘s retaliatory conduct. Louise Cressman-Watral, a therapist, counseled Seddon for approximately sixteen months. She testified that Seddon was suffering from “a major depressive disorder” caused by DuPont‘s reprisals and general mistreatment of him. Seddon exhibited “fear of DuPont as an employer,” and was suffering from “insomnia, loss of appetite,” “anxiety,” and feelings of “hopelessness.” She further noted that the retaliation forced Seddon to take psychotropic medications to battle his depression and insomnia. Watral ultimately concluded that it was unlikely that Seddon would ever recover from the mental illness caused by DuPont.
Dr. Charles Semel, a psychiatrist, also testified, explaining that Seddon suffered from “pathological stress” that was “affecting the quality of his life.” The stress was “causally related” to DuPont‘s retaliation against Seddon for raising safety concerns about the plant‘s operation. Dr. Semel reasoned that Seddon had been sensitized to safety issues after witnessing a “devastating industrial accident” at DuPont years earlier in which several of his coworkers were severely injured. In addition to his concern for others, Seddon “felt physically at risk” at the plant, and the isolation he endured at the end of his career forced him “to function alone in a fairly dangerous environment.” Dr. Semel ultimately concluded that the mental illness caused by DuPont‘s retaliation was both “worsening” and “permanent.”
The trial court charged the jury in accordance with its earlier ruling that a recovery of lost wages was not dependent on proving a constructive discharge. The court instructed the jury:
Mr. Seddon claims that DuPont caused him to suffer economic loss by depriving him of overtime pay, and by causing him to suffer a psychiatric illness that required him to retire earlier than he wanted to on a disability pension.
In order to obtain economic damages related to his psychiatric disability, Mr. Seddon must prove that DuPont proximately caused his disability, and that his disability rendered him unable to perform work for DuPont.
The jury returned a verdict in favor of Seddon, finding that he had “proven by a preponderance of the evidence that DuPont retaliated against him in violation of New Jersey‘s Conscientious Employee Protection Act.” The jury awarded Seddon $724,000 for the “economic losses he ha[d] suffered as a proximate result of DuPont‘s violations of [CEPA]” and $500,000 in punitive damages. Seddon did not receive an award for pain and suffering. Additionally, the trial court awarded Seddon $523,289 in counsel fees.
DuPont appealed.
III.
The Appellate Division reversed and entered judgment in favor of DuPont, concluding that Seddon could not prevail on a lost-wage claim under CEPA unless he proved an actual or constructive discharge. Donelson v. DuPont Chambers Works, 412 N.J.Super. 17, 22-23, 988 A.2d 604 (App.Div.2010).11 In justifying that decision,
result,” a plaintiff in a CEPA case should be required in pursuing a lost-wage claim to prove an actual or constructive discharge. Id. at 33-35, 988 A.2d 604. Because punitive damages may be awarded only if a plaintiff receives an award of compensatory damages, the panel vacated the punitive-damages award as well. Id. at 36, 988 A.2d 604. Those rulings stripped Seddon of his status as a “prevailing party,” and therefore the panel vacated the trial court‘s award of attorneys’ fees. Id. at 36-37, 988 A.2d 604. In light of the panel‘s ruling that Seddon was not entitled to attorneys’ fees, it did not address his claim that the fees awarded were insufficient. Ibid. Similarly, it did not address DuPont‘s alternative arguments challenging the propriety of the punitive-damages award. Id. at 36, 988 A.2d 604.
We granted Seddon‘s petition for certification, “limited to the issue whether recovery for economic losses associated with back and front pay requires proof of actual or constructive discharge under the Conscientious Employee Protection Act,
IV.
The question presented in this case is whether, under CEPA, an employee who becomes the victim of employer retaliation for
engaging in statutorily protected whistle-blowing activities and who becomes psychologically disabled due to that retaliation can pursue a lost-wage claim without having to prove a constructive discharge.
Seddon and amicus New Jersey Chapter of the National Employment Lawyers contend that the plain language and remedial purpose of CEPA support the trial court‘s application of common-law principles of damages to the lost-wage claim in this
On the other hand, DuPont and amicus Academy of New Jersey Management Attorneys assert that, consistent with LAD jurisprudence, proof of a constructive discharge-absent an actual discharge-should be a prerequisite to the award of lost wages. They reason that applying an objective, constructive-discharge standard to a CEPA lost-wage claim will ensure predictability in compensatory-damage awards. They believe that affirming the Appellate Division‘s approach will deter pretextual claims, protect against an award to the idiosyncratic plaintiff, and safeguard employers from an unwarranted expansion of liability claims.
The resolution of the issue before us is one of statutory interpretation-determining the remedies available to whistle-blowers under CEPA. Therefore, we first turn to CEPA, exploring its overarching purpose and the specific statutory language that applies to this case.
V.
The Conscientious Employee Protection Act,
policy and to provide protection for those who do so. See Barratt v. Cushman & Wakefield of N.J., Inc., 144 N.J. 120, 127, 675 A.2d 1094 (1996). Under CEPA, it is unlawful for an employer to retaliate against an employee who “report[s] illegal or unethical workplace activities.” Dzwonar v. McDevitt, 177 N.J. 451, 461-62, 828 A.2d 893 (2003) (internal quotations and citation omitted). Because CEPA is “remedial legislation,” it “should be construed liberally to effectuate its important social goal“-“to encourage, not thwart, legitimate employee complaints.” Id. at 463, 828 A.2d 893 (internal quotation marks and citations omitted); accord D‘Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120, 927 A.2d 113 (2007).
We begin our analysis by looking at the statute‘s plain language, which is generally the best indicator of the Legislature‘s intent. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). We must ascribe to the words used in CEPA their “ordinary meaning and significance and read them in context with related provisions so as to give sense to the legislation as a whole.” Id. (citations omitted).
CEPA prohibits an employer from taking “any retaliatory action against an employee” who engages in certain protected activity.
The issue in this case is not whether Seddon engaged in protected activity under CEPA but whether DuPont took retaliatory action against him that entitles him to lost wages. “Retaliatory action” is defined as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.”
In surveying the sweep of CEPA, we must determine what acts are “[r]etaliatory” under the statute,
What constitutes an “adverse employment action” must be viewed in light of the broad remedial purpose of CEPA, and our charge to liberally construe the statute to deter workplace reprisals against an employee speaking out against a company‘s illicit or unethical activities. Cast in that light, an “adverse employment action” is taken against an employee engaged in protected activity when an employer targets him for reprisals-making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations-causing the employee to suffer a mental breakdown and rendering him unfit for continued employment. See
If the employer‘s retaliatory action is the proximate cause of the employee‘s mental unfitness for duty, then CEPA grants the employee “[a]ll remedies available in common law tort actions.”
Under the common law, “a defendant who negligently injures a plaintiff or his property may be liable for all proximately caused harm, including economic losses.” People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 251, 495 A.2d 107 (1985). More to the point, a person injured by the tortious conduct of another “has the right to recover damages for diminished-earning capacity,” provided there is sufficient proof both to establish
This plain-language approach ordinarily would be dispositive and end our analysis. However, we also reject DuPont‘s assertion that the legislative history of CEPA or the constructive-discharge jurisprudence under LAD suggests a contrary result. We address each of those points in turn.
VI.
A.
The Legislature enacted the Conscientious Employee Protection Act in 1986. See
The definition of “[r]etaliatory action” remains in its original form to the present day. Compare L. 1986, c. 105, § 2; with
DuPont argues that a statement issued by the Senate Labor Committee, at the time of the proposed 2005 amendments, indicates that the Legislature intended an actual or constructive discharge to be a precondition for a lost-wage claim. We find no credible support for that position.
The Senate Labor Committee reported favorably on the bill proposing the 2005 amendments, noting that it “enhances the scope and strengthens the enforcement provisions of” CEPA. Senate Labor Committee, Statement to Senate Bill No. 1886 (Oct. 14, 2004).13 The Committee emphasized
The bill states that the court must order, to the fullest extent possible, an injunction against continuing violations, reinstatement to employment, compensation for lost pay and costs of the case, but only where appropriate. The bill thus takes into consideration that not all of these measures are always applicable, as, for example, in a case where the employer retaliation did not include a termination of employment.
[Ibid.]
This committee statement makes the unremarkable point that the remedy must be commensurate with the loss or damage suffered by the plaintiff; thus, a remedy will only follow “where appropriate.” Surely, it would not be “appropriate,” or necessary, to order “reinstatement to employment” for an employee who was not terminated. It would not be “appropriate” to award “compensation for all lost wages” if the employee remained employed and suffered only emotional damages. But nothing in this committee statement in any way suggests that compensation for lost wages would not be “appropriate” if an employer that repeatedly retal-
iates against an employee causes the employee to suffer a disabling mental illness.
The clear language of CEPA is our surest guide. We will not “rewrite a plainly-written enactment” or engraft “an additional qualification which the Legislature pointedly omitted.” See Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 323, 962 A.2d 1103 (2009) (internal quotation marks and citation omitted). The remedy provision of CEPA,
In charging the jury, the trial court properly followed the Legislature‘s expressed intent that “[a]ll remedies available in common law tort actions shall be available to prevailing plaintiffs.” Ibid. The jury‘s verdict reveals that DuPont retaliated against Seddon because he expressed legitimate safety concerns about the operation of the phosgene reactor, that DuPont‘s retaliatory action caused Seddon‘s mental injury, that Seddon‘s mental injury disabled him from working, and that his inability to work resulted in his lost wages.
B.
DuPont also urges us to abandon our plain-language interpretation of CEPA on the supposition that an actual or constructive discharge is the only means of pursuing a lost-wage claim under LAD. That supposition is somewhat dubious because this Court has never concluded in a LAD retaliation case that front and back pay can be awarded only in cases of actual or constructive discharge. On occasion, when appropriate, we have looked to LAD in construing CEPA.14 But CEPA and LAD
that have their own distinct purposes and are worded differently to achieve those purposes. See generally
We reject DuPont‘s assertion that Shepherd, supra, 174 N.J. 1, 803 A.2d 611, stands for the proposition that a constructive discharge is a prerequisite to a lost-wage claim under CEPA. In Shepherd, Richard Saylor claimed that his employer-through harassing conduct-retaliated against him in violation of LAD, resulting in his constructive discharge. Id. at 7, 27, 803 A.2d 611. To prove a constructive discharge, Saylor had to show that his employer‘s conduct was “so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Id. at 28, 803 A.2d 611 (citation omitted). The Court concluded that Saylor did not meet that threshold requirement. Id. at 29, 803 A.2d 611.
Unlike the case before us, Saylor did not claim or present expert testimony that his employer‘s harassing conduct caused him a psychological illness that rendered him incapable of working and therefore entitled him to lost wages. More importantly, this Court did not hold that constructive discharge was a prerequisite to lost-wage damages in a retaliation case arising under LAD. Shepherd addressed entirely different issues, under entirely different facts, within the context of an entirely different statute. Shepherd cannot control the outcome of this case.
We need not decide here whether, under the anti-retaliation provisions of LAD, a plaintiff can proceed with a lost-wage claim when an employer‘s misconduct causes a mental-illness-induced retirement. For that reason, we decline to give an advisory
opinion on a case such as Padilla v. Berkeley Educ. Servs. of N.J., 383 N.J. Super. 177, 181, 183-84, 891 A.2d 616 (App.Div.2005), in which a LAD plaintiff who failed to prove constructive discharge entitling her to lost wages never claimed that her employer-caused illness rendered her incapable of working. See also Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 276-77, 675 A.2d 684 (App.Div.1996) (LAD plaintiff who admitted she was medically able to work was not permitted lost wages when her constructive-discharge claim was dismissed at summary judgment). We simply hold here that, given the facts before us, lost wages are recoverable in a CEPA case, even in the absence of a constructive discharge.
VII.
We conclude that the trial court properly charged the jury that Seddon could only receive “economic damages related to his psychiatric disability” if he proved that DuPont “proximately caused his disability, and that his disability rendered him unable to perform work for [the company].” With that charge, and based on the record before it, the jury had the authority to find that DuPont‘s retaliation rendered Seddon unfit for work and that Seddon was entitled to front and back pay for lost wages.
We therefore reverse the Appellate Division and reinstate the jury‘s award of economic damages to Seddon. Because the Appellate Division did not decide Seddon‘s challenge to the sufficiency of the attorneys’ fees awarded to him by the trial court or DuPont‘s challenge to the punitive-damages award, we remand these and any other unaddressed issues for its consideration.
I harbor no disagreement with the majority that the Legislature created an important and necessary remedy for whistle-blowers through the enactment of the Conscientious Employee Protection Act (CEPA),
The result reached by the majority allows a plaintiff to claim adverse employment action—here specific claimed acts of retaliation—and obtain not only relief from those acts in the workplace but also, after leaving the workplace for retirement, to obtain front and back pay damages without satisfying the requirements for proving constructive discharge. My view of the proper application of CEPA‘s inclusion of “remedies available in common law tort actions” is profoundly different from that of the majority. By that language, CEPA was not transformed into a new configuration of those traditional tort remedies; yet that is exactly the result achieved today. The majority‘s analysis invests CEPA with a new application, one that, I believe, loses sight of the integrated form and meaning of this very important piece of social legislation. Because I cannot endorse the majority‘s analysis or judgment, however much I might agree about the high purpose and the social importance of CEPA, I respectfully dissent. Although not convincing for my colleagues in the majority, I feel compelled to record the essential reasoning behind my disagreement.
I.
This Court‘s grant of certification was limited to a single question: whether CEPA limits damages in the form of front and back pay to circumstances in which plaintiff proves actual or constructive discharge. Donelson v. DuPont Chambers Works, 203 N.J. 95, 999 A.2d 464 (2010).
In this case, plaintiff suffered the last act of retaliation, namely being sent for the “fit for duty” examination, in 2004. That became the lynchpin for his CEPA litigation, which was timely filed in 2005 while he remained employed. That plaintiff filed his CEPA action while still employed is not uncommon, and is in part why CEPA permits injunctive remedies. Such remedies ensure that, going forward, a non-retaliatory workplace is available to
In Shepherd v. Hunterdon Developmental Center, this Court considered the relationship between a continuing series of acts and a constructive discharge claim in the context of a Law Against Discrimination (LAD)2 hostile work environment case. 174 N.J. 1, 803 A.2d 611 (2002). There, the Court first concluded, as to plaintiff Saylor, that the series of acts he asserted to be discriminatory were minimally sufficient to withstand a motion for summary judgment substantively and therefore saved his claim from dismissal based on the bar of limitations. Id. at 26, 803 A.2d 611. Turning to his claim that his decision to take an early retirement could qualify as constructive discharge, with the resulting, albeit unspoken, front and back pay claim, the Court concluded that it could not. Id. at 29, 803 A.2d 611. Although set in the LAD context, our decision had little to do with the LAD, specifically, but much to do with the interplay between a hostile work environment claim and one for constructive discharge in general.
The Court noted that the ordinary standard for constructive discharge recognizes that all employees have an obligation to do what is necessary to maintain employment, id. at 28, 803 A.2d 611 (citations omitted), with the result that only an employee who can demonstrate that conditions were “so intolerable” that he was compelled to leave and join the ranks of the unemployed can recover for wrongful discharge. Ibid. (citing Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 428, 772 A.2d 34 (App.Div.2001)). Noting that the LAD permits recovery based on hostile acts that are “severe or pervasive,” this Court commented that there are “subtle but discernible differences between the standard for a hostile work environment and the standard for a constructive discharge.” Ibid. That is, the subset of LAD claims resting on constructive discharge has to meet both the LAD test that, in general, the employer knowingly permitted conditions of discrimination that were “severe or pervasive” and that they were also “so intolerable that a reasonable person subject to them would resign.” Id. at 27-28, 803 A.2d 611 (quoting Muench v. Twp. of Haddon, 255 N.J. Super. 288, 302, 605 A.2d 242 (App.Div.1992)) (quotation marks omitted). The analysis was supported by Title VII jurisprudence to like effect. Shepherd, supra, 174 N.J. at 28-29, 803 A.2d 611 (citing EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331-32 (7th Cir.2002); Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 301 (5th Cir.2001)); see Suders” cite=“542 U.S. 129” parallel=“124 S. Ct. 2342 | 159 L. Ed. 2d 204” court=“U.S.” date=“2004“>Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 2351, 159 L.Ed.2d 204, 216 (2004) (noting that constructive discharge “inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee‘s position would have felt compelled to resign?“).
II.
Plaintiff sought to accomplish two things through this appeal. First, he argued for disapproval of Shepherd because the standard it set was asserted to be inconsistent with CEPA‘s goal of protecting and encouraging whistle-blowers. Second, in response to our post-argument inquiry whether the constructive discharge standard should be altered in CEPA actions involving a plaintiff who has been psychologically damaged, he asked that we adopt the following different standard in CEPA matters, namely that “[a]n employee is constructively discharged when he or she provides objective evidence of a medical or psychological condition caused by the employer‘s conduct or work environment which renders the employee [on the basis of a subjective standard] incapable of continuing to work in defendant‘s workplace.” The majority‘s decision takes neither tack overtly; however, while employing an asserted “plain language” application of CEPA‘s other tort remedies, it has effectively altered, for CEPA plaintiffs, Shepherd‘s standard for securing the front and back pay relief that is rightful-ly available to a former employee only for a constructive discharge.
Plaintiff‘s argument seeking disapproval of Shepherd rested on policies relating to encouraging CEPA plaintiffs and protecting them from retaliation by using broad readings of the available remedies. The flaw in that argument lies in the assertion that the Court in Shepherd in some fashion “raised the standard of proof for constructive discharge.” In fact, the Court did not do so; we simply acknowledged that there is a preexisting body of tort law fixing the standard for that claim and, further, recognized that the LAD did not erase it. See Shepherd, supra, 174 N.J. at 27-29, 803 A.2d 611.
The same is true of CEPA: it did not erase or alter the standard for constructive discharge. The Act identifies available remedies, including those generally injunctive in nature, and permits ordinary tort remedies as well, but it does not expand or supplant them. The remedies are available to the greatest extent possible, but those sounding in tort have to be tethered to the underlying tort in its traditional formulation.
There is a relatively well-established body of law that limits constructive discharge claims, and in Shepherd this Court was careful to recognize that precedent and to explain why the standard is what it is. Shepherd was a carefully balanced opinion that evaluated the important policy interests at stake when assessing who should be entitled to front and back pay damages notwithstanding the individual‘s determination to leave a job. Those policy considerations include encouraging an employer to remedy, and remedy quickly, the complained of retaliation or discrimination from within, and encouraging the employee to do what is necessary and reasonable to stay employed. As we said in Shepherd, supra:
[A]n employee has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit. A trial court should consider the nature of the harassment, the closeness of the working relationship between the harasser and the victim, whether the employee resorted to internal grievance procedures, the responsiveness of the employer to the employee‘s complaints, and all other relevant circumstances. [174 N.J. at 28, 803 A.2d 611 (quoting Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420, 765 A.2d 217 (App.Div.2001)).]
For those reasons, courts look not at how the plaintiff has been damaged, psychologically or otherwise, but rather, assess objectively the conduct to which the plaintiff was subjected and the conditions under which the plaintiff was working. As DuPont concisely, and I believe appropriately, argued in this matter: “[F]or those policy considerations to have any meaning, the plaintiff must be objectively reasonable in his reaction to the retaliation, [that is,] objectively reasonable in deciding he can no longer endure working, before the court will let him cast blame on the employer and collect damages flowing from the termination of employment that he initiated.”
There is no rationale that would support a different analysis under CEPA than that which we recognized in Shepherd. Although the Act directs that the remedies be available “to the fullest extent possible,”
Specifically, the majority‘s analysis conflates proximate causation and the extent of damages.3 In so doing, it unhinges the fundamental tort-law notion that a plaintiff is entitled to only those compensatory remedies that will make him whole in regard to the harms actually and proximately caused by defendant. See Caldwell v. Haynes, 136 N.J. 422, 433, 643 A.2d 564 (1994). After explaining that a person has a right to recover the entirety of his diminished earning capacity caused by another‘s tortious conduct, the majority concludes that “[t]o the extent [defendant] proximately caused Seddon to suffer a mental injury incapacitating him from his former employment, he has ‘the right to recover damages for diminished earning capacity.‘” Ante at 258-59, 20 A.3d at 392-93. The statement assumes the answer to the essential legal question: When has a defendant proximately caused a plaintiff to lose his employment and thereby suffer a diminished earning capacity?
We answered this question clearly in Shepherd, explaining that lost wages are caused by allegedly discriminatory or retaliatory conduct only when discharge, either actual or constructive, can be proven. In other words, where a plaintiff walks away from his employment, a defendant
Moreover, the majority‘s reasoning rests on a fundamental flaw revealed through its baseball player analogy. The baseball player is allowed to recover as against a tortfeasor lost income as part of economic damages because common law tort concepts allow it. See Caldwell, supra, 136 N.J. at 433, 643 A.2d 564 (“An injured party has the right to be compensated for diminished earning capacity. The measure of damages for tort recovery encompassing diminished earning capacity can be based on the wages lost as a result of the defendant‘s wrongdoing. That measure includes the value of the decrease in the plaintiff‘s future earning capacity.” (citations omitted)); see also Restatement (Second) of Torts: Damages § 901 (1979) (“[W]hen there has been harm to earning capacity, the law can indemnify the plaintiff for pecuniary loss[.]“). However, until this Court‘s decision in Pierce v. Ortho Pharmaceutical Corporation, 84 N.J. 58, 65-66, 417 A.2d 505 (1980), no like tort concept allowed an employee to recover similar lost wages from a former employer.
In Pierce, this Court, recognizing that the common law has “the capacity . . . to develop and adapt to current needs,” first created a common law cause of action in tort for “wrongful discharge when the discharge is contrary to a clear mandate of public policy.” Id. at 71-72, 417 A.2d 505; see also Tartaglia v. UBS Paine Webber Inc., 197 N.J. 81, 102, 961 A.2d 1167 (2008) (“This Court first recognized a common law cause of action for retaliatory discharge when we decided Pierce in 1980.“); D‘Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119, 927 A.2d 113 (2007) (“[W]e held [in Pierce] that an at-will employee, wrongfully discharged . . . has a common law cause of action against an employer.“). That alteration in the law reflected the reality that under the common law, employees were all at-will and had no right to lost wages following termination
[s]een in its historical context, Pierce created an avenue for an at-will employee, who otherwise had little, if any, means of redress for termination, to assert that his or her discharge was wrongful. . . . We viewed [Pierce‘s] claim as being in the nature of constructive discharge and considered whether there were circumstances, apart from claims based on discrimination, in which termination of an at-will employee could be wrongful.
And, “we concluded that some non-discriminatory firings were nevertheless actionable.” Id. at 105, 961 A.2d 1167.
Of course, CEPA codified the Pierce remedy5 and, hence, this cause of action is brought under that statutory remedy. But the majority‘s misplaced reliance on tort law that permits a lost-earnings or diminished-earnings-capacity economic recovery as against a tortfeasor does not translate into support for relief in the circumstances of this present suit by plaintiff against his former employer, where constructive discharge was neither pled nor proved. In short, there is no common law avenue, outside of proving wrongful discharge or constructive discharge, for such economic damages to be awarded as against a former employer.
III.
As noted, plaintiff did not just fail to allege constructive discharge, he repeatedly disavowed it. As a result, the jury received no notice that plaintiff was claiming that he had been constructively discharged, like it received with respect to his co-plaintiff, Mr. Donelson, who pled constructive discharge and a CEPA violation (plus intentional infliction of emotional distress). Thus, the jury received no instruction on how to assess whether DuPont should be held responsible for plaintiff‘s departure as it did with respect to Mr. Donelson‘s constructive discharge claim. Nevertheless, over DuPont‘s objection, plaintiff was permitted to introduce evidence concerning the damages that flow from a constructive discharge, namely the wages he would have earned had he not retired.6 There was no basis for the jury to award plaintiff the economic damages that might stem from the termination of his employment because no claim alleging a wrongful termination of employment, nor instructions for assessing such a claim, had ever been put to the jury. In such a setting, the verdict was not properly reached and the Appellate Division was correct in setting it aside. See, e.g., Toto v. Princeton Twp., 404 N.J. Super. 604, 614-15, 962 A.2d 1150 (App.Div.2009) (rejecting unpled constructive discharge claim that was asserted through backdoor means of “giving it another name“).
IV.
In this matter, a constructive discharge claim was cloaked as a generalized CEPA retaliation claim. By camouflaging his constructive discharge allegation as a nondescript CEPA violation, plaintiff reaped the benefit of the more generous scope of
JUSTICE RIVERA-SOTO, abstaining.
I abstain for the reasons previously expressed in Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co., L.P., 204 N.J. 569, 585-587, 10 A.3d 211 (2010) (Rivera-Soto, J., dissenting): although not “necessary,” a condition precedent specifically required by the
For reversal/reinstatement/remandment—Chief Justice RABNER and Justices LONG, ALBIN and Judge STERN (temporarily assigned)—4.
For affirmance—Justices LaVECCHIA and HOENS—2.
For abstainment—Justice RIVERA-SOTO—1.
20 A.3d 402
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. GEORGE CALLEIA, DEFENDANT-RESPONDENT.
Argued March 15, 2011—Decided June 9, 2011.
Notes
If proof of constructive discharge is an essential element of a CEPA claim for front and back pay, does the [Shepherd v. Hunterdon Developmental Center, 174 N.J. 1, 803 A.2d 611 (2002)] paradigm require modification to account for a case in which a plaintiff has been damaged, psychologically or otherwise, by his employer‘s retaliatory acts and, as a result, obtains a disability retirement? If so, how should it be modified?
Because ultimately we decide that constructive discharge is not an element of a CEPA claim, this question is rendered moot.