“A constructive discharge occurs when the employer has imposed upon an employee working conditions ‘so intolerable that a reasonable person subject to them would resign.'” Daniels v. Mut. Life Ins. Co., 340 N.J. Super. 11, 17 (App. Div. 2001) (quoting Muench v. Twp. of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992)). It has been held that, “[t]he phrase ‘intolerable conditions’ conveys a sense of outrageous, coercive [,] and unconscionable requirements.” Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001). Given this definition of constructive discharge, our Appellate Division in Moser v. The Streamwood Company, et. al., 2023 N.J. Super Unpub. LEXIS 1173 (decided July 13, 2023) issued an opinion finding that in a case brought under New Jersey’s whistleblowing statute, the Conscientious Employee Protection Act (CEPA), N.J.S.A., 34:19-1, et. seq., a Plaintiff/employee may pursue a constructive discharge claim at trial where an, “… employer’s repeated insistence, in the face of plaintiff’s objections, that she engage in actions she reasonably believed were in violation of LAD leading up to, and in conjunction with, the comment that induced plaintiff to resign.”

Plaintiff Moser worked for the Streamwood Company (Streamwood) as an assistant property manager. While plaintiff worked for Streamwood, she reported to codefendant Scott Leonard, Streamwood’s regional manager and son of Streamwood’s founder and owner. Moser alleged Leonard instructed plaintiff to check “no” on all housing screening form questions asking whether the form was being completed as a Section 8 housing application. Plaintiff believed checking “no” on the forms, as instructed, would make her complicit in violating New Jersey’s Law Against Discrimination (“LAD”), N.J.S.A., 10:5-1 to -49, which prohibits housing discrimination against prospective Section 8 tenants. When Moser continued to resist marking the boxes “no” on the housing screening forms, Leonard ominously forewarned Moser that “things don’t look good for you.”  Thereafter, Moser began experiencing acute anxiety and went on medical leave.

After her medical leave ended, Moser resigned her position with Streamwood. Thereafter, she filed a lawsuit alleging that she was constructively discharged as a result of her whistleblowing activities.  The trial court granted summary judgment to the defendants dismissing the lawsuit on a finding that, inter. alia., the facts underlying Plaintiff’s resignation did not as a matter of law rise to the level of outrageousness, coerciveness and unconscionability required to pursue a constructive discharge claim under CEPA. Moser appealed arguing that reasonably minded jurors could differ whether the hostility she claimed to have endured following her alleged whistleblowing activities rose to the level of outrageousness, coerciveness, and unconscionability necessary for a viable constructive discharge claim and therefore summary judgment was inappropriate under R. 4:46.

On appeal the Appellate Division agreed with Plaintiff Moser and reversed the summary judgment. In doing so, the Appellate Division first discussed how a plaintiff must satisfy the following prima facie elements to succeed on a CEPA claim:

  1. he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;
  2. he or she performed a “whistleblowing” activity described in J.S.A. 34:19-3(c);
  3. an adverse employment action was taken against him or her; and
  4. a causal connection exists between the whistle- blowing activity and the adverse employment action.

Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) quoting Dzwonar v. McDevitt, 177 N.J. 451,462 (2003).

Because the Defendants in Moser did not contest the reasonableness of plaintiff’s belief that Leonard’s directive was violative of certain prohibitions established by LAD, the only significant issue on appeal was whether the record of the case presented sufficient facts upon which a reasonably minded jury could conclude that Moser was subjected by Leonard to the level outrageousness, coerciveness, and unconscionability necessary for a viable constructive discharge claim.  Weighing the facts before it in a “light most favorable to the non-moving party” as trial courts must under R. 4:46, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and considering that, “[w]hat constitutes an ‘adverse employment action’ must be viewed in light of the broad remedial purpose of CEPA” citing to Donelson v. Dupont Chambers Works, 206 N.J 243, 257 (2003), the Appellate Division concluded the trial court erred in granting summary judgment to the Defendants and remanded the case back to the court below for trial.

At Mashel Law LLC, we are well experienced and have enjoyed much success in handling whistleblower claims. If you believe you have been subject to a hostile work environment , discharged, or was/are the victim of any adverse employment action you believe relates to you blowing the whistle on what you reasonably believed to be an employer’s or coworker’s unlawful activities, fraud, or conduct  contrary to public policy, than don’t hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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