Articles Posted in Recent Case Law

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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.

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Victims of disability discrimination no longer need to shoulder the burden and high expense of retaining a pricey medical expert to come to court to render an opinion establishing their physical, mental and/or emotional disability in question; they can now use their treating doctor for this purpose. So said our New Jersey Supreme Court in a recently decided case entitled Delvecchio v. Township of Bridgewater, — N.J. —, 2016 N.J. LEXIS 335 (2016) where the Court affirmed the reversal of a jury’s verdict of no cause of action against a former dispatcher of the Township of Bridgewater Police Department (the “Bridgewater PD”).

In 2003, Mrs. Delvecchio developed inflammatory bowel syndrome (“IBS”), and began treatment with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Dr. Ciambotti wrote to plaintiff’s supervisors and stated that her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an assignment to the midnight shift. After repeatedly declining assignments to the midnight shift, Mrs. Delvecchio was asked to resign from her position. She then accepted a lower-paying job as a records clerk for the Township. Plaintiff used more than her allotted sick days, and the Township terminated her employment.

Thereafter, Mrs. Delvecchio filed a New Jersey Law Against Discrimination (the “LAD”) disability discrimination complaint against the Township, Bridgewater PD and individual defendants. She contended, among other claims, that her IBS constituted a disability for purposes of LAD and that defendants failed to provide a reasonable accommodation for that disability when they set the schedule for her work as a police dispatcher. Mrs. Delvecchio disclosed in pretrial discovery that she intended to present the testimony of Dr. Ciambotti to establish his diagnosis of IBS. However, the trial court barred the testimony of Dr. Ciambotti on the grounds that he had not been retained and identified by plaintiff in pretrial discovery as an expert witness and had not prepared an expert report containing his findings. Without the testimony of a physician establishing the nature and extent of her disability, the jury was left with no choice but to conclude that Mrs. Delvecchio had failed to establish that she had a disability preventing her from working midnight shifts.

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The Statute of Limitations dictates the time period in which a plaintiff must file a lawsuit. Failure to file a complaint in court within the statute of limitations will forever bar your ability to file a lawsuit no matter how legitimate your legal claim may have been had it been timely filed. In employment cases, the statute of limitations time begins to run upon the occurrence of a singular event or discrete act resulting in an adverse employment action being taken against an employee. An adverse action usually takes the form, among others, of discharge from employment, suspension, demotion, cut in pay or benefits, unfavorable shift assignment, failure to hire, and failure to promote. For statute of limitation purposes a discrete retaliatory or discriminatory act occurs on the day it happens. However, when the adverse employment action is a hostile work environment the task of identifying the date when the statute of limitations begins to run is much more difficult. This is because a hostile work environment typically results from a pattern of hostile acts which collectively viewed constitute one “unlawful employment practice”, that is, no single act alone is sufficiently severe enough to constitute by itself a hostile work environment. The Continuing Violation Doctrine can save an otherwise untimely filed hostile work environment claim so long as one of the hostile acts comprising the offending pattern of conduct falls within the applicable Statute of Limitations.  The attempt to use the Continuing Violation Doctrine to stave off dismissal of an otherwise untimely filed lawsuit was recently discussed in Fujita v. Kingo Yamanashi.

Plaintiff Fujita was employed at Yama Seafood, Inc. from November 1988 until August 2011. Over the course of her employment, Fujita claimed Yama Seafood’s founder Kingo Yamanashi often insulted her about her age and sex. Yamanashi would frequently refer to Fujita as “baba,” meaning “old woman. On March 18, 2010, Yamanashi told Fujita, “You are already sixty (60) years old. Why are you here at this company now? You are such an old woman. You should not be working here.” Yamanashi added “Leave this company right now. Take your stuff and don’t leave anything here.” Fujita did not leave and continued working for Yama Seafood. However, Fujita eventually found the continuing insults to be intolerably hostile, and chose to submit her resignation in August 2011.

On August 6, 2012, Fujita filed a complaint in the New Jersey Superior Court against Yamanashi and Yama Seafood, Inc. alleging violations of the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Equal Pay Act (“EPA”). LAD has a two (2) year statute of limitations. Fujita based her legal claims on discriminatory comments alleged to have occurred more than two years prior to the filing of her August 2012 lawsuit.  Fujita argued that the comments could still form the basis of a viable discrimination case by application of the Continuing Violation Doctrine. To include events occurring before the two-year period in a hostile work environment claim, a plaintiff must show a continuum of harassment sufficient to show a continuing violation claim. Toto v. Princeton Twp., 404 N.J. Super. 604, 613 (App. Div. 2009). A plaintiff who experiences a “continual, cumulative pattern of tortious conduct” may pursue an action if at least one of the discriminatory acts occurred within the statutory period. Roa v. Roa, 200 N.J. 555, 556 (2010). However, “the doctrine does not permit . . . the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.” Ibid. at 569. Fujita could not show a continuing violation sufficient in the eyes of the court to sustain the viability of her legal claims. Accordingly, her lawsuit was dismissed.

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Many of us would like to believe that if we are the victims of discrimination in the workplace, we will be given the opportunity to one day prove that case before a jury of our peers. Unfortunately, sometimes a judge will step in and strip a deserving litigant of that opportunity. This is what recently happened to retired State Police Trooper Robert Repsha in a discrimination case filed in the New Jersey Superior Court entitled Robert Repsha v. New Jersey State Police, Docket No. A-0414-14T3 (App. Div. Mar. 24, 2016).

Trooper Repsha, a Caucasian, now-retired state trooper, filed a lawsuit against his former employer, the New Jersey State Police (NJSP), alleging he was repeatedly passed over for promotions during the period of 2010-2012 in retaliation for having filed a hostile work environment complaint with the Equal Employment Opportunity Commission (“EEOC”) against an African-American superior officer. Trooper Repsha also alleged that after he suffered a heart attack in October of 2010, the NJSP failed to accommodate him upon his return to work and he was otherwise retaliated against because he sought an accommodation.

No juror ever had the opportunity to hear these allegations of discrimination because a motion judge determined that, among other things, the promotions denied Trooper Repsha after 2010 were “too distant in time” from the 2006 EEOC complaint to be considered actionable. On March 24, 2016, the Superior Court of New Jersey, Appellate Division issued an opinion agreeing with the motion judge noting, “[t]he mere fact that adverse employment action occurs after the alleged protected activity is not alone sufficient to present or suggest a causal link between the two events.” Accordingly, no jury will never hear Trooper Repsha’s story of discrimination and retaliation.

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On January 17, 2016, in a published decision, the New Jersey Superior Court, Appellate Division, invalidated a mandatory arbitration clause found in an employee handbook. See Morgan v. Raymours Furniture Co., 443 N.J. Super. 338 (App. Div. 2016). This was a significant victory for employee rights across our State.

Plaintiff Grant W. Morgan worked for Defendant Raymours Furniture Company (“Raymours”) and electronically signed a company handbook which contained a mandatory arbitration clause. The company handbook, like almost every other company or employee handbook signed in this State, also contained a disclaimer provision that read that nothing in the handbook created a promise of continued employment or an employment contract.

After Mr. Morgan electronically signed the company handbook, he started complaining about age discrimination in the workplace. Raymours immediately confronted him with an ultimatum — that he either sign a stand-alone arbitration agreement or his employment would be terminated. Plaintiff refused to sign the stand-alone agreement and Raymours fired him.