“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.