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New Jersey’s Whistleblowing Law is “remedial social legislation designed to promote two complementary public purposes: ‘to protect and [thereby] encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.”’ D’Annunzio v. Prudential Ins. Co., 192 N.J. 110, 119 (2007) (quoting Yurick v. State, 184 N.J. 70 (2005)). 

New Jersey’s public policy to protect whistleblowers is so strong that it even permits an employee working outside of New Jersey to bring a whistleblower claim alleging violations of New Jersey’s Conscientious Employee Protection Act (CEPA). This is exactly what occurred in Moore v. Novo Nordisk, Inc., 2011 WL 1085015 (S.C. Dist. Ct. Mar. 22, 2011). There, Plaintiff Moore, a resident of South Carolina, worked as a sales representative for Novo Nordisk (“Novo”), a global pharmaceutical company, at one of Novo’s locations in South Carolina.  Novo maintains its United States corporate headquarters in Plainsboro, New Jersey.

Moore claimed she was told by a supervisor, who was also South Carolina resident, to give autographed basketballs to doctors to increase sales. Such an activity is a violation of the federal pharmaceutical marketing anti-kickback statute, 42 U.S.C. § 1320a-7b(b).  Moore did as her supervisor told her to do.  However, this unlawful kickback scheme came to the attention of Novo’s corporate counsel who conducted an investigated into the scheme and eventually questioned Moore about it. At first Moore lied to Novo’s corporate counsel denying her involvement, only to later admit she did gift autographed basketballs to doctors, but only at the direction of her supervisor. Moore was later fired by that same supervisor for admitting Moore’s role in the bribery scheme. Novo offered Moore a severance package in exchange for her waiving all legal claims she had against Novo.  Moore rejected this, and instead filed a lawsuit against Novo in the United States District Court of South Carolina alleging, among others, that Novo wrongfully terminated her employment in violation of New Jersey’s CEPA law.

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Bed Bath & Beyond’s (BBB) effort to dismiss a class action lawsuit filed by Mashel Law, L.L.C. has failed.  The class action alleges BBB violated New Jersey’s Wage and Hour Laws (NJWHL) by not paying its Assistant Store Managers (ASMs), Customer Service Representatives (CSRs) and Department Managers (DMs) in its New Jersey stores overtime wages at a rate of one and one-half (1 ½ times) an employee’s regular rate of pay. BBB claimed it had the right to pay these class of workers’ overtime at a rate of only one-half (1/2 times) their regular rate of pay through use of a fluctuating workweek method (FWW) when its employees’ work hours fluctuated from week to week. Under federal law, FWW provides for the payment of an unchanging salary that compensates an employee for all hours worked in a week regardless of whether the employee works fewer or greater than 40 hours a week, and payment for overtime hours at a rate of one-half employee’s regular rate of pay. 29 C.F.R. § 778.114(a).

To use FWW, an employer must satisfy five (5) requirements: 1) the employee must work hours that fluctuate week from week; 2) the employee must be paid a fixed salary that serves as compensation for all hours worked; 3) the fixed salary must be large enough to compensate the employee for all hours worked at a rate not less than the minimum wage; 4) the employee must be paid an additional one-half of the regular rate for all overtime hours worked; and 5) there must be a “clear mutual understanding” that the fixed salary is compensation for however many hours the employee may work in a particular week, rather than for a fixed number of hours per week. Id.; See O’Brien v. Town of Agawam, 350 F.3d. 279, 288 (1st Cir. 2003), Griffin v. Wake County, 142 F. 3d. 712, 716 (4th Cir. 1998).  By example, for DMs working for BBB in New Jersey being paid $20.00 per hour, BBB contends by using FWW to calculate overtime wages, it was permitted to pay its DMs overtime wages of only $10.00 per hour rather than $30.00 per hour as Mashel Law, L.L.C. argues is required under NJWHL’s overtime provisions.

FWW does not enjoy uniform acceptance nationally under state wage and hour laws. For instance, while FWW is an accepted methodology for calculating overtime wages under New York’s wage and hour laws, Anderson v. Ikon Office Solutions, Inc., 833 N.Y.S. 2d. 1 (1st Dep’t 2007), it is not permitted under Pennsylvania’s wage and hour laws. See Foster v. Kraft Foods Global, Inc., 285 F.R.D. 343 (W.D. Pa. 2012); Cerutti v. Frito Lay, Inc., 777 F. Supp. 2d 920 (W.D. Pa. 2011). As for New Jersey, no statute has been adopted or amended permitting the use of FWW under state law when calculating overtime wages. Similarly, no New Jersey Department of Labor regulation has been adopted or amended to permit FWW for calculating overtime wages under the NJWHL. While there remains a dearth of New Jersey case law on this topic, there does exist a decision issued by Mark B. Boyd, former Commissioner of the New Jersey Department of Labor entitled New Jersey Department of Labor, Division of Workplace Standards, Office of Wage and Hour Compliance, et. al. v. Pepsi Cola Company, 2000 WL 34401845 (N.J. Adm.) decided August 29, 2000 (hereafter referred to as “the Pepsi-Cola Case”) rejecting the use of FWW for calculating overtime wages under New Jersey law.

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New Brunswick, N.J., November 1, 2016 – Brent Carter, Robert Haynes and Kenneth Cuoco, filed a class action lawsuit in Middlesex County Superior Court against Bed Bath & Beyond, Inc. (BBB) on behalf of themselves and all similarly situated current and former employees who worked in BBB stores located in New Jersey to recover for BBB’s failure to pay overtime wages in violation of The New Jersey Wage and Hour Law (NJWHL). The proposed Class consists of all persons employed by Defendant BBB in New Jersey who worked as either a Department Manager, Customer Service Representative, or Assistant Store Manager at any time two years prior to the filing of the lawsuit who worked over 40 hours per week and were not paid overtime pay at a rate of one and one-half times their regular rate for hours worked more than 40 hours during a workweek.

Carter, Haynes and Cuoco specifically complain that rather than Defendant BBB paying Plaintiffs and all other members of the proposed Class overtime pay at a rate of one and one-half times their regular rate for hours worked in excess of 40 hours during a workweek as required by the NJWHL, BBB instead unlawfully paid them and proposed Class members overtime pay based on a calculation which divided an employee’s base weekly salary by all hours worked in the week divided by 2 multiplied by all hours worked over 40 in the week.  The Complaint alleges that BBB unlawfully applied this Fluctuating OT formula to avoid paying their Department Managers, Customer Service Representatives and Assistant Store Managers overtime compensation at a rate required by law.  Indeed, the Complaint goes on to claim that by using its Fluctuating OT formula, Defendant BBB often paid Class members for hours worked over 40 hours in a week less than the State’s mandated minimum wage rate.

Plaintiffs’ attorney, Stephan T. Mashel, Esquire of the law firm of Mashel Law, L.L.C., located in Marlboro Township, New Jersey, said that his clients seek class certification and an award of money damages because BBB unjustly enriched itself by failing to pay its workers overtime pay at the legal overtime pay rate required under state law. As Mashel explains, “The overtime wage rate requirements contained in New Jersey’s Wage and Hour Laws benefits workers by dissuading employers from forcing employees to work excessively long hours. Such a disincentive has the salutary effect of promoting the health and quality of life of workers who value leisure and family time.  Conversely, these same overtime pay requirements afford workers the right to earn extra pay at a time when lower and middle class workers wages have remained stubbornly stagnant. BBB used its Fluctuating OT formula to defeat these public policy goals.”

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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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On September 19, 2016, the New Jersey Supreme Court upheld large emotional distress verdicts in a national origin discrimination case where the plaintiffs, Ramon and Jeffrey Cuevas, neither treated with a mental health professional, nor presented expert testimony at trial in support of their respective claims of emotional distress damages.  Ramon Cuevas v. Wentworth Group, 2016 N.J. LEXIS 891 (decided September 19, 2016). The Cuevas brothers filed a lawsuit under the New Jersey Law Against Discrimination against their former employer, the Wentworth Group, alleging they were routinely subject to racially disparaging and humiliating remarks by Wentworth executives; the Cuevas brothers also alleged they were the victims of retaliatory firings. The case was tried before a jury who awarded them $2.5 million in damages, including $800,000 to Ramon and $600,000 to Jeffrey for emotional distress damages. The defendants’ filed a post-trial motion with the court requesting a reduction of the emotional distress damages award because they felt they were unconscionably too high.  Defendants’ application to the court for reduction of a jury award is called remittitur. The trial court denied defendants’ motion finding that the award was not “shocking to the conscience.”   The Appellate Division affirmed the jury verdict and the trial judge’s denial of defendants’ remitter application.  The issue on appeal before the New Jersey Supreme Court was whether the trial court properly denied defendants’ application for remittitur.

In agreeing with the Appellate Division panel below, and relying on its prior 2004 decision in Tarr v. Ciasulli, 181 N.J. 70 (2004), the New Jersey Supreme Court in Cuevas rejected defendants’ argument that, in a LAD case, only nominal damages may compensate for emotional distress when there is no “independent corroborative proof or a showing of resulting physical or psychological symptoms.” In affirming the trial court’s decision to leave intact the jury’s emotional distress verdict, the Court emphasized that, “the Legislature intended victims of discrimination to obtain compensation for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments.” (emphasis in original) quoting Tarr, supra., at 81. In doing so, the Court in Cuevas noted that a number of courts have upheld high emotional-distress LAD awards in the absence of expert testimony from mental-health experts. See, e.g., Rendine v. Pantzer, 141 N.J. 292, 311-13 (1995) (affirming trial court’s denial of remittitur and upholding jury’s emotional-damages awards of $105,000 and $125,000 for two plaintiffs in LAD gender-discrimination wrongful-termination case); Quinlan v. 36 Curtiss-Wright Corp., 409 N.J. Super. 193, 217 (App. Div. 2009) (upholding emotional-distress damages of $187,128 in LAD gender discrimination failure-to-promote case), rev’d on other grounds, 204 N.J. 239 (2010); Lockley v. Turner, 344 N.J. Super. 1, 12-14 (App. Div. 2001) (upholding $750,000 emotional-damages award), aff’d in part and modified in part on other grounds, 177 N.J. 413 (2003).

The Court further made clear that trial judges should be reticent to invade the province of the jury in determining what is a fair and reasonable damages verdict for a victim of proven discrimination.  This is because a jury’s verdict is cloaked with a “presumption of correctness” quoting Baxter v. Fairmont Food Co., 74 N.J.  588, 598 (1977).  The Court went on to opine that, “The unique nature of each case and the suffering of each plaintiff is the reason why juries are told that, in fixing a monetary amount for emotional-distress damages, there is ‘no better yardstick for your guidance than your own impartial judgment and experience.’” Model Jury Charges (Civil) § 2.36, 34 “Past and Future Emotional Distress in an Employment Law Case” (2014).

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In our blog article posted on August 3, 2016, we discussed the growing trend of court jurisdictions throughout the country adopting the cat’s paw causation theory to conclude that employers can be held liable for the discriminatory or retaliatory acts of supervisors and subordinate co-workers. To remind, under the cat’s paw theory of legal causation, also known as the “subordinate bias” theory, an employer may be held legally responsible to a complainant/plaintiff for employment discrimination or unlawful workplace retaliation based on the discriminatory or retaliatory animus of an employee who influenced the decision-maker (typically a managerial level employee), but who him or herself, did not make the employment decision adversely impacting the complainant/plaintiff.  Recently, a federal court sitting in the Second Circuit’s Southern District of New York adopted the cat’s paw theory in a sexual harassment case entitled Vasquez v. Empress Ambulance Service, Inc., (decided August 26, 2016).

The facts in Vasquez explain why the court there felt constrained to rule in the employer’s favor. Andrea Vasquez worked on an ambulance crew for Empress Ambulance as an emergency medical technician. A male dispatcher named Gray worked for Empress as a dispatcher.  After Gray met Vasquez, he began to pursue a romantic or sexual relationship by asking her out on dates, putting his arm around her and touching her shoulders. Vasquez made clear to Gray that she was not interested in such a relationship with him and tried to ignore him. Not wanting to take no as an answer, Gray thought he could woo Vasquez by texting her a picture of his erect penis with the message “Wat u think” (sic).  Vasquez was disgusted by Gray’s text and informed her supervisor about the unwanted text message. The supervisor instructed Vasquez to type up a complaint and send it to Empress’ human resources department and her supervisors.  Meanwhile, having caught wind of Vasquez’s complaints about him and fearing the loss of his job, Gray began to create the false impression that he and Vasquez were involved in an intimate personal relationship.  Deceitfully, Gray was able to manipulate his iPhone so that the record of a conversation with someone else containing consensual sexual text banter appeared to have taken place between Gray and Vasquez.  Gray gave printed screen shot portions of such text conversation to Empress Management.  Gray was also able to contrive a racy photograph of a woman he purported was Vasquez claiming she sent it to him in response to his erect penis photo. Gray’s effort to mislead Empress proved successful as Vasquez was fired by Empress based on the Empress Management Committee’s misapprehension that she had communicated a false sexual harassment claim against Gray.

Following her termination, Vasquez filed a sexual harassment discrimination and retaliation claims against Empress under federal Title VII and the New York State Human Rights Law.  Empress moved to dismiss Vasquez’s complaint arguing, in part, that a cat’s paw claim is only viable when the biased person who influences the adverse employment discrimination is the plaintiff’s supervisor, and not like Gray, a mere co-worker. In rejecting Empress’ argument, the court stated that a subordinate’s biased recommendation to a decision-maker supports a cat paw’s theory of liability when the biased person acts within the scope of his or her employment, or when the biased subordinate acts as the employer’s agent although not formally delegated the authority to do so.  Under either of these possibilities, the biased person by virtue of their position or relationship with the decision-maker(s) must occupy a position of confidence sufficient to corrupt the decision making process.  Applying these principles, the court concluded that Gray’s manipulative conduct fell outside the scope of his employment, Gray was not delegated authority to act for the company, and no evidence was presented showing Gray occupied a position of confidence in the eyes of the employer sufficient to corrupt the decision to terminate Vasquez’s employment. Because the court found an insufficient basis to impute Gray’s retaliatory intent to Empress, it dismissed the claims brought against Empress.

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If your employer has a widely disseminated anti-harassment policy and you are a victim of harassment on the job, you must follow the victim reporting mechanism or procedures in the policy because failure to do so may bar you from recovering damages for the harassment you were forced to endure.  The New Jersey Supreme Court decision in Aguas v. State of New Jersey, 220 N.J. 494 (2015) is instructive on this point.  Ilda Aguas worked as a corrections officer for the New Jersey Department of Corrections (DOC). The DOC had in place a widely disseminated written anti-harassment policy which required employees to report sexual harassment or other forms of discrimination in writing.  Aguas claimed her supervisor and other officers were sexually harassing her.  However, Aguas only reported the harassing conduct verbally, not in writing.  Thereafter, Aguas filed a lawsuit against the DOC and her harassers alleging she was sexually harassed in violation of New Jersey’s Law Against Discrimination (LAD).  Ilda Aguas’ lawsuit was ultimately dismissed because she failed to follow the DOC’s anti-harassment policy and its requirement that victims of harassment make their complaints in writing.

In its decision affirming the dismissal of Ms. Aguas’ lawsuit, the New Jersey Supreme Court found that when an employer has in place a well-publicized and reasonably effective policy designed to eliminate discriminatory harassment in the workplace, and an employee fails to comply with the policy, the employer may avoid liability for the harassment perpetrated by its supervisors or the victim’s co-workers. This is called the “Ellerth-Faragher Defense” which gets its name from two United Supreme Court decisions Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Under the Ellerth-Faragher Defense an employer can avoid liability to a victim of harassment if no tangible job action was taken against the employee (such as a firing or demotion) and: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, supra., 524 U.S. at 807; Ellerth, supra,, 524 U.S. at 765.

Many victims of work related harassment are reluctant to report it for fear of retaliation; this is especially true if the harasser is a supervisor. Nonetheless, the Aguas decision instructs that failure to report the harassment could bar the victim from being able to sue an employer to recover damages for any physical, mental or emotional harms caused by the harassment. However, if you are a victim of harassment and fear retaliation if you report the harassment, you should consider that the LAD makes it unlawful for an employer, “to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.” N.J.S.A. 10:5-12(d). Simply put, if your employer retaliates against you for reporting the harassment, you can and should sue them under the LAD for having done so. Victims of harassment and retaliation must do whatever is necessary to protect their right to sue in court to hold their employer and the harasser(s) accountable for the damage and harm caused by their unlawful actions.

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Lisa is a new probationary employee with a New Jersey company who has been the target of sexually offensive remarks by Doug, a male co-worker.  Doug’s harassing behavior includes, but is not limited to, asking Lisa: a) to sit on his lap; b) what her bra cup size is; c) to wear short skirts to work; d) to have a drink with him after work after she already declined to do so; and e) to take a “selfie” with him at her desk.  Lisa’s complaints to her boss and Human Resources about Doug’s incessant behavior has not stopped his unwelcome antics.  As a result, Lisa finds herself constantly fearful, anxious, sad, irritable, crying; she is distracted and having trouble focusing both at work and home. Her appetite has greatly decreased and she is having trouble sleeping. Lisa went to see her doctor and was informed her blood pressure was elevated and she was suffering from anxiety and depression. In addition to prescribing her medicine, the doctor has recommended Lisa immediately go on disability and consult with a mental health professional. Lisa tells the doctor that as a new employee she will not be eligible for health insurance for another two months, she has no personal savings, and has so far paid very little money into the state disability insurance program. She is both sick and fearful of losing her job and doesn’t know what to do. What Lisa needs to do is to call both an employment lawyer and a workers compensation lawyer.

The employment lawyer will immediately do everything necessary to protect Lisa’s legal interests as a victim of workplace sexual harassment including, if necessary, filing a lawsuit on her behalf asserting claims for violation of New Jersey’s Law Against Discrimination (LAD). The workers compensation lawyer will immediately place the employer on notice that Doug’s unstopped harassment has caused Lisa to suffer mental health injuries arising out of her course of employment and will demand that she immediately receive authorized medical treatment and workers compensation temporary disability benefits. If the employer fails to provide such benefits, the workers compensation lawyer will then file a workers compensation claim petition with the New Jersey Department of Labor and Workforce Development, Division of Workers Compensation Workers and file a motion with the workers compensation court seeking to compel the employer (and its insurance company) to provide Lisa with authorized medical treatment and temporary disability benefits. Assuming Lisa has suffered a partial permanent psychiatric injury, the workers compensation lawyer will eventually petition the workers compensation court to award Lisa money for her disabling injuries.

New Jersey law permits Lisa to file a LAD discrimination claim with the New Jersey Superior Court while at the same time pursuing a workers compensation claim before the New Jersey Division of Workers Compensation. This is because LAD claims and other intentionally caused harms are claims not subject to the exclusivity provision of the Workers Compensation Act.  In 1997, our State Supreme Court affirmed that employees could bring both a workers compensation claim  and a collateral discrimination and/or intentional infliction of emotional harm claim arising out of similar sets of facts and circumstances against the same employer where intentional acts by co-workers or the employer cause psychological disability to the employee. Schmidt v. Smith, 294 N.J. Super. 569, 584 (App Div. 1996) aff’d 155 N.J. 44 (1997) (“If the Legislature had intended workers compensation to be the exclusive remedy for victims of harassment and discrimination in the workplace it would not have provided for a jury trial as well as compensatory and punitive damages.”); Gardenshire v. N.J. Manufacturers Ins. Co., 333 N.J. Super. 219, 230 (Law Div. 2000).

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Amir is an American born Muslim of Pakistani descent. Amir has recently obtained an entry level administrative position at ABC, Inc., a large pharmaceutical company.  Two white co-workers in Amir’s department, Billy and Bob, who similarly hold entry level positions at ABC, dislike Muslims.  As a result, Billy and Bob scheme to get Amir fired by falsely reporting to their department manager Tony having seen Amir stealing drug samples used by the company’s sales team.  Relying on what Billy and Bob reported to him, Tony decides to fire Amir. Thereafter, Amir retains an employment lawyer and files a wrongful discharge discrimination lawsuit against ABC. While the lawsuit is pending, Billy and Bob’s discriminatory scheme is uncovered. Will Amir and his attorneys be able to hold ABC liable for Manager Tony having fired Amir based on what Billy and Bob reported? Under the so-called “cat’s paw” theory of liability, the answer appears to be yes.

Our United States Supreme Court in a case entitled Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), held that “an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make the ultimate decision.”  Id. at 1187.  Prior to this ruling, lower federal courts had favorably applied the cat’s paw theory in discrimination cases. Abramson v. William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001) (“it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate.); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (“If the employee can demonstrate that others had influence or leverage over the official decision maker . . . it is proper to impute their discriminatory attitudes to the formal decision maker.”); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (stating that “discriminatory comments . . . made by . . . those in a position to influence the decision maker” can be evidence of pretext); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“Evidence of a subordinate’s bias is relevant where the ultimate decision maker is not insulated from the subordinate’s influence”). Similarly, the New Jersey Appellate Division adopted the cat’s paw theory from Staub and applied it under New Jersey’s whistleblowing law known as the Conscientious Employee Protection Act, or CEPA. Battaglia v. United Parcel Service, 2011 N.J. Super. Unpub LEXIS 2180 at * 29 (App. Div. Aug. 12, 2011); see also Lowe v. Medco Health Solutions of Willingboro, LLC, 2012 U.S. Dist LEXIS 59137 at *48-49 (D.N.J. Apr. 27, 2012) (“it appears likely that New Jersey will adopt a standard similar to the “cat’s paw’ theory enunciated in Staub”).

In Burlington v. News Corp., 55 F. Supp. 3d 723 (E.D. Pa. 2014), the United States District Court for the Eastern District of Pennsylvania concluded the “cat’s paw” theory of imputed causation in discrimination cases should be extended to situations where the discriminatory animus influencing the decision-maker stemmed from a nonsupervisory employee. Id. at 738; see also Harris v. Warrick Cnty. Sheriff’s Dep’t., 666 F.3d 444, 448 (7th Cir. 2012) (noting that co-worker “cat’s paw” liability might have been available had the plaintiff established causation); Keefer v. Olin Corp., No. 09-cv-23-WDS, 2011 WL 4474966, at *3 (S.D. Ill. Sept. 26, 2011) (“Plaintiff has to show that there is supportable evidence that the unidentified ‘nurse’ somehow actually influenced the decision maker . . . or that the nurse was in a supervisor capacity.”); Johnson v. Koppers, Inc., No. 10 C 3404, 2012 WL 1906448, at *6-7 (N.D. Ill. May 25, 2012) (expressly extending the cat’s paw doctrine to co-workers).

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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.