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Although there is no bright-line rule as to what constitutes an adverse employment action, New Jersey state and federal courts have held that actions causing direct economic harm (such as hiring, firing, failing to promote, or adjusting wages or benefits) qualify as adverse actions sufficient to support a prima facie case of employment discrimination. Domino v. Cty. of Essex, 2021 U.S. Dist. LEXIS 26261 (D.N.J. decided February 11, 2021); see also Campbell v. Supreme Court of New Jersey, 2014 U.S. Dist. LEXIS 176647, 2014 WL 7343225, at *6 (D.N.J. Dec. 23, 2014) (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999)). However, this leaves open the question of whether a disabled employee may pursue a failure to reasonably accommodate disability discrimination claim under New Jersey’s Law against Discrimination (LAD) when there has been no direct economic harm adverse employment action taken against the employee. In Richter v. Oakland Bd. Of Educ., 459 N.J. Super. 400 (App. Div. 2019) our Appellate Division answered this question and did so in the affirmative.

Plaintiff Mary Richter was a middle school teacher who suffers from diabetes, alleges she fainted while teaching due to low blood sugar levels when she was unable to eat lunch at an earlier class period and suffered significant and permanent injuries. She contends the accident would not have occurred had the Oakland Board of Education defendants granted her accommodation as required under New Jersey’s LAD to miss cafeteria duty so that she court eat lunch earlier to avoid a decrease in her blood sugar levels. The Defendants claimed to the contrary that they did not require Ms. Richter to work cafeteria duty and because they did not deny her a requested accommodation, they did not violate the LAD.

Because Richter was not fired or reassigned to another position, the motion judge below determined Richter could not establish a prima facie case of adverse employment action, and the motion judge concluded as well that plaintiff’s injuries were not due to defendants’ action but rather due to Richter’s personal decision to continue attending cafeteria rather than eating.  Accordingly, the judge granted defendants’ motion for summary judgment dismissing Richter’s complaint, denied Richter’s cross-motion for summary judgment, and denied reconsideration of the dismissal. Richter appealed.

Following a trial at the Law Division and an appeal to the Appellate Division, the New Jersey Supreme Court was asked to resolve whether a plaintiff could recover damages under a promissory estoppel theory of liability because he relied on defendant’s promise in quitting his prior employment. Goldfarb v. Solimine, 2021 N.J. LEXIS 161, 245 A.3d 570, 2021 WL 626991 (decided February 18, 2021). In Goldfarb, Plaintiff Jed Goldfarb claimed defendant David Solimine reneged on a promise of employment after Goldfarb quit his job to accept the promised position. Although an employment agreement and its terms were never reduced to writing, plaintiff asserts that he received specific promises of a base salary and return on investments for managing in-house the sizeable investment portfolio of defendant’s family. In response, Solimine argued that because an employment contract was never reduced to writing as required by New Jersey’s Uniform Securities Law of 1997 (the Securities Law) Goldfarb was barred from pursing an action against him. The Securities Law intends to forbid the enforcement of an investment advisory contract that has not been reduced to writing. In resolving the issue before it in favor of plaintiff Goldfarb, the Court distinguished between a breach of contract claim where the Court found Goldfarb could not pursue a claim because of the Securities Law’s requirement that contracts be writing, and the reliance-based doctrine promissory estoppel open to Goldfarb because it had no such requisite.

To begin its analysis, the Court pointed to well established case law instructing that “[a] contract is an agreement resulting in obligation enforceable at law.” Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 24 (1958). “[T]he basic features of a contract” are “offer, acceptance, consideration, and performance by both parties.” Shelton v. Restaurant.com, Inc., 214 N.J. 419, 439 (2013). “A contract arises from offer and acceptance, and must be sufficiently definite ‘that the performance to be rendered by each party can be ascertained with reasonable certainty.'” Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435  (1992) (quoting Caldwell, 26 N.J. at 24-25).  For a viable breach of contact claim a party may pursue benefit-of-the-bargain or expectation damages, that is, damages that plaintiff would have earned had the contact not been breached.  See Coyle v. Englander’s, 199 N.J. Super. 212, 214 (App. Div. 1985) (characterizing expectation damages, “i.e., loss of  the benefit of the bargain,” as the “traditional” form of damages for breach of contract). The purpose of such compensating damages “is to put the injured party in as good a position as if performance had been rendered.” Totaro, Duffy, Cannova & Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 13 (2007) (ellipsis omitted) (quoting Donovan v. Bachstadt, 91 N.J. 434, 444 (1982)). [*23]

A promissory estoppel claim is different than a breach of contract claim. Promissory estoppel is made up of four elements: (1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment.” Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008); see Model Jury Charges (Civil), 4.10K “Promissory Estoppel” (approved May 1998). It has been long recognized that promissory estoppel is “a departure from the classic doctrine of consideration that the promise and the consideration must purport to be the  motive each for the other,” providing instead that the operative “reliance is on a promise.”  [*24], Friedman v. Tappan Dev. Corp., 22 N.J. 523, 536 (1956).  Under promissory estoppel a successful plaintiff is entitled to reliance damages. In contrast to contract-based expectation damages, reliance damages look backward.

The American Rescue Plan (ARP) signed into law by President Joe Biden provides plenty of benefits for those eligible including:

a) $242 billion in relief payments such as Economic Impact Payment of up to $1,400 for individuals or $2,800 for married couples, plus $1,400 for each dependent;

b) expansion of the Child Tax Credit from $2,000 to $3,600 for children under age 6, and $3,000 for other children under age 18;

In Haley v. Bd. of Review, DOL, 2021 N.J. LEXIS 223* (Decided March 17, 2021) our New Jersey Supreme Court held that pretrial detention is not an absolute bar to receiving unemployment compensation benefits for the time following dismissal of the criminal charges and release from detention. Based on the specific facts presented, the Court concluded the Unemployment Compensation Law (UCL) and its regulatory analogs required the New Jersey Department of Labor and Workforce Development Department (DWLD) to review the totality of the circumstances surrounding claimant Haley’s detention and release to determine whether he “left work voluntarily.” Because this was not done, the Court ordered the DWLD to do so.

Between May and December 2017, the claimant Clarence Haley was employed. In December 2017, authorities arrested Haley, charging him with a number of serious offenses. Haley was jailed pretrial, and his employer was informed of Haley’s predicament by his mother, who requested them to keep his job open because he intended to get the charges dismissed shortly. Two months after his arrest, a grand jury declined to indict Haley and the prosecutor dismissed all charges releasing Haley from detention. Thereafter, Haley filed an application for unemployment benefits arguing he was entitled to unemployment insurance benefits because his pretrial incarceration was not a voluntary departure from employment. The DLWD denied the application, finding that Haley left his job voluntarily for personal reasons. The Appeal Tribunal, Board of Review, and Appellate Division each affirmed. The New Jersey Supreme Court granted certification.

Under the UCL, an individual who “has left work voluntarily without good cause attributable to such work” is “disqualified for benefits” until certain conditions are met. N.J.S.A. 43:21-5(a). N.J.A.C. 12:17-9.1(e) provides guidance as to what may, upon review, be deemed “voluntarily” leaving work. The reasons for leaving work set forth in N.J.A.C. 17-9.1(e) is a fact-sensitive analysis and has observed that it did not “intend that this rule automatically result in a finding of voluntarily leaving work without good cause attributable to the work when the leaving was due to the reasons listed.” It has stated, regarding separation through incarceration, that “the relevant circumstances of the individual’s incarceration will be considered in deciding the voluntary or involuntary nature of the separation.”  Relatedly, incarceration – like the other reasons listed under N.J.A.C. 12:17-9.1(e) — is not, in and of itself, an absolute bar to unemployment benefits. Haley v. Bd. of Review, DOL, 2021 N.J. LEXIS 223, at *18 -*19.

Dr. Zeferino Martinez, a 70-year-old orthopedic surgeon, was fired in 2017 by UPMC Susquehanna, a Pennsylvania located hospital where he worked.  UPMC claimed Dr. Martinez was let go not because of his work performance, but rather because the hospital was “moving in a different direction and his services were no longer needed.”  UPMC replaced Dr. Martinez with two younger doctors, although their ages were not known by Dr. Martinez at the time. Thereafter, Dr. Martinez filed a lawsuit in federal court alleging his firing was unlawfully motivated by his age in violation of, inter. alia., the federal Age Discrimination in Employment Act (ADEA).  The District Court granted UPMC’s motion to dismiss holding that a plaintiff cannot just allege that his replacement was “substantially younger” because that is a legal conclusion, not a factual allegation that must be taken as true. Martinez c. UPMC Susquehanna, 2019 U.S. Dist. LEXIS 135176, WL 3776587 (M.D. P.A. Aug. 12, 2019) at *3. Because the complaint did not allege the replacement doctors’ ages, the Court thought it could not infer age discrimination. at *4.  Dr. Martinez appealed the dismissal to the United State Court of the Appeals for the Third Circuit.

A motion to dismiss brought in federal court must be denied if the complaint, on its face, contains sufficient factual matter to show that a claim to relief is “plausible.”  Ashcroft v. lgbal, U.S., 129 S. Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The “plausibility standard” does not require the Plaintiff to establish a probability of liability, only more than a mere possibility. Id. (citing Twombly, 550 U.S. at 556-57, 570). This analysis requires the reviewing court to “draw upon its judicial experience and common sense” in making this determination, and to consider the complaint as a whole and in context. Iqbal, at 1950. The court must “‘accept all factual allegations as true, construe the complaint in the light most favorable to the Plaintiff, and determine whether, under any reasonable reading of the complaint, the Plaintiff may be entitled to relief.”‘ Phillips v. County of Allegheny, 515 F.3d 224,231 (3rd Cir. 2008) (quoting Pinker v. Roche Holding Ltd., 292 F.3d 361, 374 n.7 (3rd Cir. 2002)). However, “[t]his standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its fact.” Litras v. PVM Intern. Corp., No.  11-cv-5695 (JFB) (AKT), 2013 WL 4118482 (E.D.N.Y.  Aug.  15, 2013) (citing Twombly, 550 U.S. at 556-57, 570). Thus, the court determines whether the plaintiff is entitled to offer evidence in support of the allegations, and not whether the plaintiff will ultimately prevail. Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3rd Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232,236 (1974)).

The Third Circuit in reversing the District Court below, viewed Dr. Martinez’s allegation that his replacement doctor comparators were “significantly younger” as a factual allegation and not a conclusion of law. Martinez c. UPMC Susquehanna, 986 F.3d. 261, 265 (3rd Cir. 2021).  In doing so, the Third Circuit opined:

Back on January 13, 2020 this blog site discussed a New Jersey Appellate Division decision interpreting the New Jersey Pregnant Workers’ Fairness Act (PWFA) which amended existing provisions of the New Jersey Law Against Discrimination (LAD) at N.J.S.A., 10:5-12(s) thereby requiring employers to provide pregnant (and breast feeding) workers with reasonable accommodations – such as temporary transfers to less strenuous or hazardous work – to allow them to continue working.  Delanoy v. Twp. of Ocean, 462 N.J. Super. 78 (App. Div. 2020). This decision was appealed by the employer to the New Jersey Supreme Court who this week issued an opinion affirming the Appellate Division while making clear that three distinct causes of action are provided under N.J.S.A., 10:5-12(s) to aggrieved pregnant (and breast feeding) employees: (1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee; (2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee (subject to the employer’s claim of undue hardship, separately explained in the subsection); and (3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation. Delanoy v. Twp. of Ocean, 2021 N.J. LEXIS 173 at *16 (decided March 9, 2021).

In Delanoy, plaintiff, a pregnant police officer, notified her employer, the Ocean Township Police Department (OTPD) of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g., carrying a gun) during the later stages of her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The OTPD assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’) allowing pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” The OTPD also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the OTPD refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The OTPD argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant. The New Jersey Appellate Division disagreed.

In an opinion authored by Justice LaVecchia, the New Jersey Supreme Court in affirming the Appellate Division below declared the OTPD’s Maternity SOP facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work. The Light Duty SOP provided for a waiver of the accumulated-leave condition, and the Maternity SOP did not. Therefore, on its face, the Maternity SOP constituted a per se violation of the PWFA’s prohibition of unfavorable treatment of pregnant employees. The Court accordingly affirmed the Appellate Division’s reversal of the trial court’s denial of partial summary judgment to Delanoy on her facial challenge. The Court remanded for a jury trial only on the issues of causation and damages.

In Loeb v. Vantage Custom Classics, Inc., ESX-L-4762-20, the New Jersey Superior Court, Law Division, Essex County, was faced with the question of whether an employee who suffers an adverse employment action because of complaints he made to his employer about its failure to follow Governor Phil Murphy’s Executive Orders designed to mitigate the spread of the COVID-19 virus can sue as a whistleblower under the New Jersey Conscientious Employee Protection Act (CEPA). The Court answered this question in the affirmative.

On March 9, 2020, New Jersey Governor Phil Murphy issued Executive Order No. 103, declaring a State of Emergency and a Public Health Emergency because of the COVID-19 pandemic. On March 16, 2020, Governor Murphy issued Executive Order No. 104 implementing aggressive social distancing measures to mitigate further spread of COVID-19 in New Jersey. On March 21, 2020, Governor Murphy issued Executive Order No. 107 directing all residents employed in nonessential jobs to stay at home. Paragraph 10 of Executive Order 107 states that, “All businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” And on April 8, 2020, Governor Murphy issued Executive Order No. 122 incorporating all relevant Executive Orders in relation to pandemic COVID-19, Declaring;

“All essential retail businesses, warehousing businesses, manufacturing businesses, and businesses performing essential construction projects must also adopt policies that include, at minimum, the following requirements:

An employee who is terminated for alleged sexual harassment based on a consensual out-of-work romantic relationship with a coworker, where no complaint of sexual harassment was ever made and where the employer’s investigation revealed no good-faith basis for concluding sexual harassment had occurred, can serve as the basis for a public-policy wrongful discharge claim pursuant to Pierce v. Ortho Pharmaceutical Corp, 84 NJ. 58 (1980) (holding that it is unlawful to discharge an employee in violation of a clear mandate of public policy) and Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) (requiring employers to conduct fair and thorough investigations of sexual harassment allegations). Both the New Jersey Supreme Court and the Appellate Division have held that consensual romantic relationships between coworkers do not constitute sexual harassment, even if one of the parties to the relationship is favored by the other to the detriment of third parties in the workplace.

In Erickson v. March & McLennan Co., Inc., 117 N.J. 539 (1990), a unanimous New Jersey Supreme Court held that (1) there was “no reason to extend the protection of the LAD to sex-discrimination claims based on voluntary personal relations in the workplace” and (2) “favoritism in the workplace, based solely on personal romantic preference as opposed to coercion, does not constitute discrimination on the basis of gender.” Id. at 557. Similarly, while addressing the discoverability of consensual sexual relationships between partners and employees at a law firm in a case in which the plaintiff associate alleged that she had been raped by one of the partners, the Appellate Division relied upon the distinction between sex in the workplace and sexual harassment in the workplace to bar discovery of such consensual sexual relationships. K.S. v. ABC Professional Corp., 330 N.J. Super. 288 (App. Div. 2000). The Appellate Division noted that “[s]ex is not congruent with sexual misconduct” in holding that “whether any partner ever had a consensual and welcomed relationship with an employee is irrelevant to plaintiffs’ claim that a hostile work environment was created or tolerated by defendants.”  Id. at 297. Hence, in New Jersey consensual sexual relationships in the workplace, even between superiors and subordinates, do not constitute sexual harassment, and therefore cannot be used as a predicate for firing an employee for sexual harassment. Given this, it may be gainsaid that an employer violates a clear mandate of New Jersey public policy by firing an employee for alleged sexual harassment based on the employee’s consensual romantic relationship with a coworker. Such a discharge violates a clear mandate of public policy and therefore is unlawful Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).

In Grasser v. United Healthcare Corporation, MID-L-12026-99, the company fired plaintiff Grasser after learning he had been involved in a romantic relationship with a female coworker even though no one (including the female coworker) had complained plaintiff Grasser had done anything inappropriate and despite the female coworker’s clear statement the relationship was entirely consensual. Moreover, the employer’s investigation uncovered absolutely no evidence that either plaintiff or the female coworker had done anything inappropriate in the workplace. Notwithstanding this, defendant-employer fired plaintiff anyway, asserting his relationship with the female coworker violated the company’s sexual harassment policy. In denying the defendant corporation’s motion for summary judgment, New Jersey Superior Court Judge Yolanda Ciccone, J.S.C. stated in part:

The law in New Jersey is clear that actual or constructive discharge is not a required element for recovery of economic losses due to employer’s retaliatory actions under New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011). Under CEPA, any retaliatory action on the part of the employer is a violation and therefore recoverable if the action(s) have proximately caused the injury to employee.  Donelson, 206 N.J.at 249 (referencing N.J.S.A. 34:19-5).  Also, where appropriate, “the court shall order compensation for all lost wages, benefits and other remuneration to the fullest extent possible.Id. (emphasis added).  Such damage can include adverse employment capabilities due to mental unfitness for duty.  IdThese protections exist to encourage whistleblowing on the part of employees and to protect those whistleblowers from any retaliation taken by their employers regardless of their employment status.  CEPA protects equally those who are discharged, who suffer a retaliatory hostile work environment, who suffer psychiatric distress forcing early retirement, and even those currently employed by the retaliating company who were retaliated against in some fashion for their whistleblowing actions.

In Donelson, the plaintiff Seddon, was a long-term employee of DuPont Chambers Works, who after approximately 30 years of employment, reported concerns regarding the inadequate procedures the company employed in handling a particular hazardous substance.  After filing an OSHA complaint, DuPont subjected Seddon to disparate and hostile treatment. Seddon eventually suffered an emotional breakdown, was placed on disability and he eventually resigned from his job. Seddon did not claim nor was he found to have suffered a constructive discharge at the hands of his employer, yet nonetheless was entitled by the Court to the full spectrum of tort recovery. This is because “other adverse employment actions taken against an employee” may lead to the proximate causation of economic loss, and any such event may lead to the full spectrum of tort recovery.  Donelson, 206 N.J. at 257.  Seddon’s psychologist recommended time away from work and even filed the papers for disability leave. Hence, the court in Donelson held that in the circumstance where an employer’s retaliatory action proximately causes employee to suffer a documented mental incapacitation, that employee has a right to recover lost wages even in the absence of a constructive discharge.  Id. at 263.

Herbe v. Rutgers, 2020 N.J. Super. Unpub. LEXIS 2563 (App. Div. decided December 29, 2020) is a recently decided Appellate Division case which is a progeny of Donelson. Nurse Herbe was a Clinical Nurse Coordinator for University of Medicine and Dentistry of New Jersey. Herbe was assigned with her supervisor and a coworker to audit medical charts, but they refused to help her with the audit because they were busy writing an essay for the supervisor’s graduate school application. In fact, they had the temerity to ask Herbe to help them author the essay, but rather than do so, Herbe left the room they were all in without comment. Thereafter, Nurse Herbe reported her supervisor and her coworker to the employer, believing they were guilty of theft of time, plagiarism, fraud, and ethics rules. Almost immediately after reporting the misconduct, Plaintiff’s supervisor and coworker began to harass Herbe at work, calling her a “mole,” undermining Plaintiff’s supervisory authority of a new employee, and making demeaning comments about her weight, clothing, and jewelry. The harassment Herbe was forced to endure at work eventually placed her under the care of a psychologist who placed her on disability leave for an indefinite period of time. In response, the employer fired her.

Although less frequently invoked than other provisions contained within the New Jersey Law Against Discrimination (LAD), the statute prohibits discriminatory refusal to do business with independent contractors because they or their family members possess one or more protected class characteristics. Specifically, N.J.S.A. § 10:5-12(l) provides:

“It shall be…an unlawful discrimination…For any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of the race, creed, color, national origin, ancestry, age, pregnancy or breastfeeding, sex, gender identity or expression, affectional or sexual orientation, marital status, civil union status, domestic partnership status, liability for service in the Armed Forces of the United States, disability, nationality, or source of lawful income used for rental or mortgage payments of such other person or of such other person’s family members, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers.…”

Similarly, the LAD prohibits discriminatory terminations of contracts. Rubin v. Chilton, 359 N.J. Super. 105 (App. Div. 2003).

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