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EMPLOYEES NEED NOT PROVE ACTUAL OR CONSTRUCTIVE DISCHARGE IN ORDER TO RECOVER UNDER NEW JERSEY’S WHISTLEBLOWER LAW

A constructive discharge occurs when conditions at work become so unlawfully and intolerably hostile an employee is left with no choice but to resign. Previously, to recover under New Jersey’s Whistleblower Law – the Conscientious Employee Protection Act (CEPA) – a litigant was required to prove actual or constructive discharge. This changed when the New Jersey Supreme Court in Donelson v. DuPont Chambers Works expanded the scope of liability and broadened potential litigants’ avenues of recovery in holding that an employee who files suit under CEPA may recover back and front pay, even if the employee was not fired or constructively discharged.  This can be done if the employee shows he or she became mentally disabled because of the employer’s retaliation. Such retaliation typically takes the form of a hostile work environment.

In Donelson, Plaintiff, John Seddon, a thirty-year employee of DuPont Chambers Works, filed complaints with DuPont management and the Occupational Safety and Health Administration regarding unsafe conditions in the workplace. Seddon believed that after he engaged in whistleblowing activities, DuPont retaliated by placing him on an involuntary short-term disability leave. Following his return to work, DuPont required that Seddon work twelve-hour shifts in an isolated work assignment, a requirement that he characterized as “torture.” Consequently, Seddon sought psychiatric treatment and took a voluntary six-month leave of absence. After his six-month leave, Seddon retired with a disability pension from DuPont.

In his lawsuit, Seddon alleged that DuPont retaliated against him for complaining about workplace safety concerns, and as result of DuPont’s retaliatory actions, he suffered a mental breakdown rendering him unable to hold gainful employment. Following a trial, a jury rendered a verdict in favor of Seddon awarding him $724,000 for economic losses and $500,000 in punitive damages. However, on appeal the Appellate Division reversed, determining a lost wage claim under CEPA is not cognizable unless actual or constructive discharge was proved.

Seddon ultimately appealed to the Supreme Court and in a 4-2 decision, the New Jersey Supreme Court reversed the Appellate Division holding that constructive discharge is only one ground for recovering lost wages; and that possible retaliatory actions under CEPA also include “other adverse employment action[s] taken against an employee in the terms and conditions of employment.” Put differently, the New Jersey Supreme Court held that retaliation is not limited to discharge, constructive or otherwise, but includes any adverse action, such as false accusations, negative performance reviews, suspension, and pretextual mental-health examinations.

To the extent that the company’s retaliatory actions caused the plaintiff to suffer a mental breakdown rendering him unfit for continued employment, the court also concluded that he could recover damages for his diminished earning capacity. As to the issue of causation and proximate cause, the court deferred to the jury, which credited medical testimony from plaintiff’s psychologist and a psychiatrist, who testified as an expert, that DuPont’s retaliatory actions caused the Plaintiff to suffer a mental breakdown rendering him unfit for continued employment.

If you have suffered emotional distress because of unlawful discrimination or retaliation in the workplace, and have been rendered unable to maintain gainful employment, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.