New Jersey Employment Lawyer Blog

Articles Posted in Retaliation / Whistleblowing

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There are many ways to prove a retaliation claim.  Often, a key factor is the closeness in time between when the employee blows the whistle and when the employer takes an adverse employment action against her, such as firing or demoting her.  In most situations timing alone is not enough to prove retaliation. However, timing alone can be enough if it is “unusually suggestive” of retaliation.

There is no clear answer to how little time can be considered “unusually suggestive.”  But in a recent case the United States District Court for the District of New Jersey ruled a jury can find retaliation because the employer fired the employee eight days after her last protected activity.

Retaliation in the workplace and the Fair Labor Standards ActZalinskie v. Rosner Law Offices, P.C., Linda Zalinskie claims her employer, Rosner Law Offices, P.C., fired her because she complained about violations of the Fair Labor Standards Act (FLSA).  In contrast, the firm claims it spoke to Ms. Zalinskie about problems with her job performance and attitude nearly a year before she made these complaints, moved her into a new position at the time, and ultimately fired her because her performance and attitude did not improve.

In early September 2011, Ms. Zalinskie called the New Jersey Department of Labor (NJDOL) twice because the firm was giving her compensatory time off when she worked overtime instead of paying her time-and-a-half. She also submitted a written complaint to the NJDOL on September 4, 2011.

On September 19, Ms. Zalinskie called the NJDOL again because the law firm had docked her pay when she arrived to work 6 minutes late.  The following day she met with her supervisor and the firm’s office manager.  During the meeting, she complained about the firm docking her pay even though she was a salaried employee.  When asked why she believed this was unlawful, Ms. Zalinskie indicated she leaned it from the NJDOL.  The next day, the firm’s office manager asked Ms. Zalinskie to provide proof the firm had violated the law.

On September 23, 2011, an investigator from the NJDOL made an unannounced visit to the firm, claiming he was conducting a random audit.  Six days later, on September 29, 2011, the firm fired Ms. Zalinskie.  The firm says it decided to fire Ms. Zalinskie on September 21, 2012, the day on which it asked her to prove it was unlawful to dock her pay, but decided to wait to implement its decision.  Of course, the firm also claims it fired Ms. Zalinskie for poor performance rather than because of her complaints about violations of the FLSA.  In fact, it denies learning Ms. Zalinskie filed a complaint with the NJDOL until after it fired her.

Based on these facts, the court concluded there is enough evidence for a jury to find the firm fired Ms. Zalinskie because of her complaints to the NJDOL.  It found her termination was “almost contemporaneous” with her complaints to the NJDOL and the NJDOL’s audit of the firm because she was terminated “less than a month after she filed a written complaint with the NJDOL, eight days after she told [her boss] at the September 21, 2011 meeting that the source of her wage allegations was the NJDOL, and six days after” the NJDOL investigator audited the firm.  In contrast, although the firm could have fired her for poor performance for nearly a year, it did not decide to do so until shortly after she complained to the DOL.  Accordingly, the judge denied the firm’s motion for summary judgment, thereby giving Ms. Zalinskie a chance to try to prove her case to a jury.

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Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

Corporate Tax FraudThe Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation.  It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own.  The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC.  Their employers are private companies that manage and advise the Fidelity family of mutual funds.

Mr. Zang and Ms. Lawson claim they experienced retaliation after they reported fraud committed by the mutual funds.  Specifically, Mr. Zang claims he was fired and Ms. Lawson claims she experienced a series of adverse employment actions that eventually caused her to resign (a constructive discharge).

In determining whether Mr. Zang and Ms. Lawson are protected by the Sarbanes-Oxley Act, the Supreme Court focused on the relevant language of the anti-retaliation provision, which prohibits any publicly traded company or any “officer, employee, contractor, subcontractor, or agent of such company” from retaliating against an employee who provides information or otherwise assists in certain investigations into possible violations of the Act.  The Court concluded that the plain meaning of this provision prohibits contractors and subcontractors from retaliating against their own employees, rather than merely prohibiting them from retaliating against employees of publicly traded companies.  It supported this interpretation on the basis that normally contractors and subcontractors can only terminate, demote or suspend employees of their own company, rather than employees of the publicly traded companies which they manage.

The Supreme Court further supported its ruling based on the fact that the collapse of Enron involved fraud by its private accounting firm, Arthur Andersen.  The Act was passed in part because employees of Arthur Andersen who reported the fraud experienced retaliation, including demotions and terminations as a result.  The court reasoned that if the whistleblower provisions only protected employees of publicly trades companies, then it would not protect employee of companies like Arthur Anderson who blow the whistle on fraud committed by a public traded company for which they work.  This would thwart the Act’s express purpose of “protect[ing] investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.”

Accordingly, the Court held that the Sarbanes-Oxley Act’s whistleblower protection applies to individuals who work for publicly traded companies through privately held companies such as law firms, accounting firms and investment companies.  It therefore ruled that Mr. Zang and Ms. Lawson can proceed with their cases.

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Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

There was no dispute that Mr. Goldsmid was entitled to overtime pay when he worked more than 40 hours per week. However, there were at least 12 weeks in which Mr. Goldsmid worked overtime but was not compensated for it.

Although Mr. Goldsmid initially did not realize he was entitled to receive overtime pay, in February 2011 the company’s accountant provided him a factsheet from the United States Department of Labor that explains the Fair Labor Standards Act (FLSA)’s overtime requirements. Mr. Goldsmid provided copies of that document to some of his coworkers and his boss. In March 2011 he told one of the owners of the company he believed the company had decreased his pay when it started paying him a salary. Approximately three months later, Lee Rain fired Mr. Goldsmid, claiming he was disruptive and his job performance was poor. Mr. Goldsmid then filed a lawsuit claiming his employer failed to pay him overtime in violation of the FLSA, and retaliated against him in violation of the FLSA and New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA).

Lee Rain eventually filed a motion for summary judgment, asking the court to dismiss Mr. Goldsmid’s case. Among other things, the company argued there was not enough evidence to prove it fired Mr. Goldsmid because he objected about a violation of the FLSA, rather than because of his job performance.

Previous cases have recognized that when an employee attempts to rely solely on evidence of the timing between his legally protected objection and the company’s decision to fire him, he has to show the timing is so close that it is “unusually suggestive” of retaliation. Otherwise, timing alone is not enough to prove a retaliation claim.

The judge explained that the three months between Mr. Goldsmid’s complaint to his boss and the company’s decision to fire him was not “unusually suggestive” and therefore was insufficient to prove his case. However, she also noted that the company hired two new employees to work in its warehouse, and started their jobs on the day after Lee Rain fired Mr. Goldsmid. Although the company claimed it decided to hire those employees a month before it fired Mr. Goldsmid because it was getting ready for the busy summer season, the court ruled that a jury could find it really hired them to replace Mr. Goldsmid and delayed firing him until his replacements were ready to start their jobs. Based on that, the judge concluded a jury could find Lee Rain retaliated against Ms. Goldsmid in violation of the FLSA and CEPA. Accordingly, it denied the company’s motion for summary judgment.

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New Jersey Court Finds Protection for Whistleblower Who Objected as Part of Job Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job. There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA. The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service. Shortly thereafter, Mr. Dukin’s boss ordered him to repair the bus using a bumper-jack. Mr. Dunkin refused because he believed doing so was unsafe because the bus was on uneven ground. His boss then ordered him to go home. At home, Mr. Dukin filed a complaint with New Jersey’s Office of Public Employees Occupational Safety and Health department (PEOSH), which eventually found multiple safety violations. When the Superintendent learned what had happened he fired Mr. Dukin, only to rescind his termination five minutes later. Mount Olive subsequently scheduled a hearing to discuss Mr. Dukin’s employment. Prior to the meeting, Mount Olive offered Mr. Dukin the option of being paid for the final five months of his employment contract if he resigned and waived his legal claims against the school district. Mr. Dukin rejected this offer. Mount Olive permitted Mr. Dukin to finish out the school year, but did not renew his contract for the following year. Mr. Dukin then filed a retaliation lawsuit under CEPA. The Appellate Division found Mr. Dukin is protected by CEPA. It distinguished its previous rulings regarding employees who object in the course of performing their job duties, explaining that unlike Mr. Dukin each of those cases involves an employee whose “central job description was to assess and analyze risk for” their employer. In other words, it establishes a different standard for (1) employees whose jobs focus on safety or compliance, who either have limited or no protection under CEPA; and (2) all other employees, who are protected by CEPA whether or not their objections relate to their job duties. The Appellate Division also found Mr. Dukin has enough evidence to prove retaliation. This includes the fact that his supervisor previously told the mechanics he would “bury” them if they ever went over his head, the timing and circumstances of Mount Olive’s disciplinary actions toward him, and the fact that the school district changed its justification for firing him from budgetary concerns to poor performance. Accordingly, the court concluded that a jury should determine whether Mount Olive retaliated against Mr. Dukin in violation of CEPA. The Dukin opinion is unpublished, so it is not a binding precedent. However, it is a reminder that this question is in a state of flux that will remain until the New Jersey Supreme Court finally answers this question.

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Last month, in Gomez v. Town of West New York, the United States District Judge William Martini denied a motion to dismiss a civil rights lawsuit against the Town of West New York, New Jersey.

Alain Gomez worked for West New York as its Urban Enterprise Zone Coordinator. According to Mr. Gomez’s allegations, when Mayor Felix Roque ordered him to seek contributions to a private charitable not-for-profit organization the Mayor was running, Mr. Gomez refused because it was illegal to work for a private organization during his working hours for the Town. The Mayor then retaliated against Mr. Gomez by moving him into a small office without proper ventilation.

New Jersey Appellate Court Permits Whistleblower Lawsuit to Proceed.jpgIn response, Mr. Gomez filed a complaint under the New Jersey Public Employees Occupational Safety and Health Act (“PEOSHA”). The state eventually ordered West New York to provide Mr. Gomez safe working conditions. Around the same time Mr. Gomez also contributed information to a website called www.recallroque.com, and publicly accused Mayor Roque of misusing public resources.

Mr. Gomez eventually told West New York’s Town Administrator that the Mayor had illegally instructed him to spend working hours performing fundraising for the Mayor’s charity. The Town Administrator then scheduled a meeting between Mr. Gomez and the Town Commissioner to discuss this issue. Soon thereafter, the Mayor told Mr. Gomez he was unhappy about his meeting with the Commissioner and threatened to fire him. True to the Mayor’s threat, West New York fired Mr. Gomez two days later.

Mr. Gomez claims the Mayor and Commissioner continued to harass him after they fired him, including by threatening him, intimidating him, calling him names, making disparaging comments about him to the media, offering to rehire him as the Deputy Director of the Parks Department only to demote him to the position of garbage collector the next day, and threatening to fire his father who also works for the Town.

Mr. Gomez sued West New York, Mayor Roque and three other individuals under the First Amendment, the New Jersey Civil Rights Act (NJCRA) and the Conscientious Employee Protection Act (CEPA). West New York asked the Court to dismiss Mr. Gomez’s First Amendment and NJCRA, arguing his claims did not relate to a matter of public concern. To be protected by the First Amendment speech has to relate to a matter of public concern. The Court found this requirement was met since Mr. Gomez was attempting to “bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.”

The Town also argued Mr. Gomez’s speech was not constitutionally protected because he supposedly was speaking as part of his official duties. The United State Supreme Court has ruled the First Amendment does not protect speech if it is made as part of a public employee’s job duties. However, the Appellate Division found this did not bar Mr. Gomez’s claims because his point was he should not be spending time fundraising for the Mayor’s private charity during his working hours, and thus he was speaking in his capacity as a private citizen rather than as part of his official duties.

Finally, the Court found Mr. Gomez’s lawsuit sets forth a valid claim under CEPA. It explain that to prove a CEPA claim, an employee must show he (1) reasonably believed his employer “was violating a law, rule, or regulation or a clear mandate of public policy concerning the public health or safety;” (2) performed a whistle-blowing activity listed in CEPA; (3) experienced an adverse employment action; and (4) the employee’s whistle-blowing activity caused the adverse employment action. It found Mr. Gomez’s allegations could support each of these requirements. Accordingly, it ruled that Mr. Gomez can proceed with his case.

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New Jersey’s Conscientious Employee Protection Act (CEPA) has long been described as one of the broadest whistleblower laws in the nation. Among other things, it prohibits employers from retaliating against employees because they object to, disclose, or refuse to participate in an activity they reasonably believe is illegal, criminal or fraudulent.

Despite CEPA’s broad reach, several past cases have ruled that employees are not protected by CEPA if their objections were part of their job duties. For example, a safety officer who complains about an unsafe work condition or a human resources manager who reports sexual harassment would not be protected by CEPA under those cases.

But earlier this month, in Lippman v. Ethicon, Inc., New Jersey’s Appellate Division ruled that line of cases is inconsistent with the way the New Jersey Supreme Court has directed courts to interpret CEPA. It ruled that “an employee’s job title or employment responsibilities” should not be the deciding factor in a CEPA case.

The Lippman case involved an employee, Joel Lippman, who worked for Ethicon, Inc., which is a subsidiary of Johnson & Johnson, Inc. Mr. Lippman was Ethicon’s Vice President of Medical Affairs and Chief Medical Officer. During his employment, Mr. Lippman repeatedly advocated for Ethicon to recall numerous products he believed were unsafe. He claims the company eventually fired him in retaliation for doing so, and brought a retaliation lawsuit under CEPA. The trial court dismissed Mr. Lippman’s case. It found he is not protected by CEPA because he was merely doing his job when he supported recalling the products he believed were unsafe, and therefore is not protected by CEPA.

The Appellate Division disagreed. It recognized that employees like Mr. Lippman are in the best position to know whether a company is complying with relevant legal standards. In fact, it labeled employees who are responsible for these types of issues “watchdogs.” It concluded:

New Jersey's Whistleblower Law Protects Watchdog Employees.jpg

[I]t would be a sad irony indeed if such a “watchdog” employee, like [Mr. Lippman], would be deemed by a court to fall outside the wall of protection created by the Legislature to whistleblowers. If an individual’s job is to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against such an individual because of his or her performance of duties in good faith, and consistent with the job description.

However, the court added a new requirement for “watchdog” employees under CEPA. Specifically, they must either prove they (a) “pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.” In contrast, other employees who object to apparent violations of the law do not need to prove they pursued all internal means of securing compliance to be protected by CEPA.

The Lippman opinion is published, making it a binding legal precedent. It fixes a major loophole other courts have created in CEPA’s protection by protecting watchdog employees. However, since the decision conflicts with previous rulings by the Appellate Division the case is likely to wind up in the New Jersey Supreme Court, which hopefully will resolve this issue once and for all.

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The Affordable Care Act, also known as “Obamacare,” is not just a health care law. It also includes whistleblower protection. The United States Department of Labor (DOL) recently released interim rules regarding the law’s anti-retaliation provisions.

Obamacare Anti-Retaliation Provisions2.jpgThe Affordable Care Act makes it illegal for employers to retaliate against employees who report certain violations of the Act. Specifically, it protects employees who complaint about apparent violations of its prohibition against (1) lifetime limits on medical insurance coverage, and (2) denying coverage because of a preexisting medical condition. It also prohibits employers from taking reprisal against employees who receive a tax credit or similar benefit for participating in a Health Insurance Exchange. It further protects employees who testify, participate or assist with a proceeding regarding a violation of one of those provisions.

To qualify for whistleblower protection, an employee must have complained to his employer, the federal government, or a state attorney general. In addition, the regulations make it clear the employee does not have to be correct about the violation of law he reported, as long as he had both an objectively reasonable belief (meaning reasonable from the standpoint of the employee who complained) and a subjectively reasonably belief (meaning from the standpoint of a reasonable person) that the company was violating one of the relevant provisions of the Act.

The interim regulations include a long list of examples of the type of actions by employers that would be prohibited if they are retaliatory. Specifically, in addition to termination, the regulations list “intimidating, threatening, restraining, coercing, blacklisting or disciplining” an employee regarding his or her “compensation, terms, conditions, or privileges of employment.”

Employees who experience retaliation in violation of the Act must bring a claim within 180 days after the retaliation occurred. The claim must be filed with the DOL’s Occupational Safety Health Administration (OSHA), which administers the Act’s whistleblower protections.

Under the interim regulations, once a claim has been filed OSHA has to determine whether it was filed within the 180 period and describes a claim that would violate the statute’s anti-retaliation provisions. Assuming these requirements are met, OSHA is then required to conduct an investigation. According to the regulations, OSHA is supposed to issue its initial written determination within 60 days after it receives the complaint. If the agency determines the employer violated the Act, it can order it to reinstate the employee and/or to pay the employee damages including lost wages and benefits.

After filing with OSHA, employees have the right to file a private lawsuit in federal court if either (1) the agency has not issued a final determination for 210 days after the employee filed the complaint with the agency, or (2) they are within 90 days after the agency issued its initial findings. However, an employee cannot bring a lawsuit after the DOL has issued its final determination.

The interim regulations also indicate that the employee who files the complaint has the burden to prove his or her complaint was a “contributing factor” in the employer’s decision to take the retaliatory action. In other words, the employee has to show his objection had at least some influence on the outcome of the company’s decision to take an adverse action against him. If the employee meets this burden then the employer is liable unless it can show, by clear and convincing evidence, it would have taken the same action toward the employee even if he or she had not complained.

It is important to recognize that the interim regulations have not been formally approved, and are still in the review stage. As a result, they may change before they become official.

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In addition to prohibiting employment discrimination and harassment based on race, gender, sex, disability and other specific protected categories, the New Jersey Law Against Discrimination (“LAD”) also prohibits companies from retaliating against employees who object about discrimination or harassment in the workplace. The New Jersey Supreme Court recently clarified that this protection applies to employees who object about sexually offensive conduct toward women even if no women were aware of the offensive conduct. In the process, the Court seems to have expanded the LAD’s protection against retaliation to protect employees irrespective of whether it was reasonable for them to believe the harassment or discrimination violated the law.

NJ Supreme Court Lowers Burden to Prove Discrimination.jpgUnited Parcel Service, Inc. (UPS) demoted Michael Battaglia shortly after he objected that his supervisor, Wayne DeCraine, called female employees “c*nts,” referred to a particular woman as “that b*tch,” called another female employee “big t*ts,” expressed his desire to have sex with another female employee, referred to an employee named Regina as “Vagina,” and discussed pornographic websites he visited at home. He also reported the fact that Mr. DeCraine was involved in a sexual relationship with a female employee. What distinguishes Mr. Bataligia’s case from most other cases is Mr. DeCraine did not engage in this sexually offensive conduct in the presence of any women, so no women even arguably were subjected to a hostile work environment.

Two years ago, New Jersey’s Appellate Division ruled that Mr. Battaglia’s objections were not protected by the LAD’s anti-reprisal provision. It did so because Mr. DeCraine’s conduct was not unlawful sexual harassment since no woman heard his offensive language, the romantic relationship he was having with another female employee was consensual, and there was no suggestion any woman was fired, demoted, or experienced another adverse employment action because of her gender. It interpreted the LAD’s anti-retaliation provision to require evidence of actual discrimination or harassment.

But the New Jersey Supreme Court disagreed. In Battaglia v. United Parcel Service, Inc., it ruled employees are protected by the LAD’s anti-retaliation provision if they object about actions they in good faith believe violate the LAD even if they are wrong. The Court recognized that employees are not employment lawyers, and do not necessarily know where the line is between actionable discrimination and merely offensive conduct.

In reaching this conclusion, the Court seems to have eliminated the requirement that an employee must reasonably believe the conduct he complained about violated the LAD to be protected from retaliation. The Court initially noted that under one of its previous rulings an employee must show his “complaint was both reasonable and made in good faith.” But later on the Court seems to drop the reasonable belief requirement altogether, holding that:

[W]hen an employee voices a complaint about behavior or activities in the workplace that he or she thinks are discriminatory, we do not demand that he or she accurately understand the nuances of the LAD or that he or she be able to prove that there was an identifiable discriminatory impact upon someone of the requisite protected class. On the contrary, as long as the complaint is made in a good faith belief that the conduct complained of violates the LAD, it suffices for purposes of pursuing a cause of action.

In other words, the Court appears to have ruled employees only have to prove they had a good faith belief that the employer was violating the LAD, but not necessarily that their belief was reasonable. If so, the Court has extended the LAD’s protection to many employees who sincerely but unreasonably believe their employers have engaged in unlawful harassment or discrimination.

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Last week, in University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court ruled there is a higher burden for an employee to prove his or her employer retaliated than to prove it discriminated under Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employers from discriminating against their employees based on their race, color, religion, sex, or national origin. It also prohibits companies form retaliating against employees because they opposed, complained about, testified about, or otherwise pursued a claim of discrimination or harassment.

Supreme Court and Retaliation.jpgThe Civil Rights Act of 1991 makes it clear that an employee can prove a Title VII discrimination claim if she proves her race, color, religion, sex, or national origin was a “motivating factor” in the employer’s decision to take a negative employment action toward her even if the company considered other lawful factors in making its decision. If an employee meets this requirement, the company still can avoid paying damages if it proves it would have made the same decision even without considering the illegal factor. The question in the Nassar case was whether the same standards apply to retaliation claims.

Several years ago, the Supreme Court ruled that since the Civil Rights Act of 1991 only amended Title VII, claims under the Age Discrimination in Employment Act (ADEA) do not follow the same motivating factor test. Instead, employees bringing cases under the ADEA have to prove the treatment they experienced would not have occurred but for their age. It is considered significantly more difficult to prove an employer’s decision would not have happened but for your age than it is to prove your age was a motivating factor in the company making that decision.

In Nassar, the Supreme Court ruled that since the Civil Rights Act of 1991 only mentions discrimination based on race, color, religion, sex and national origin when it created the motivating factor test, that test does not apply to retaliation claims. Instead, an employee trying to prove a retaliation claim under Title VII has to prove he or she would not have been fired, demoted, or otherwise treated worse but for his or her objection or complaint about discrimination.

Notably, the Court noted the number of retaliation cases being filed is increasing. It indicated that the number of such cases filed with the Equal Employment Opportunity Commission (EEOC) almost doubled between 1997 and 2012, to the point that the only type of case filed more frequently with the EEOC are race discrimination claims.

Fortunately, New Jersey and New York State have not adopted this heightened burden of proof in retaliation cases, and in my opinion neither state is likely to do so at any time soon. Rather, at least for now, both states only require employees to prove their objection or complaint about discrimination was a motivating factor in the company taking an adverse action against them. Nonetheless, it is part of a disturbing trend in which the Supreme Court is slowly making it more difficult for employees to enforce their legal rights. In fact, as discussed in a previous article, on the same day Nasser was decided the Supreme Court also Limited the Definition of a “Supervisor” under Title VII.

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Earlier this year, New Jersey’s Appellate Division affirmed a trial court’s decision to reduce a firefighter’s emotional distress damages award from $3.5 million to $500,000. The case involved a retaliation claim brought by Firefighter Kevin Reilly against the Village of Ridgewood. Mr. Reilly had objected about numerous violations of fire safety and Occupational Safety & Health Act (“OSHA”) regulations. He claimed the fire department retaliated against him by, among other things, placing a negative memo in his personnel file, investigating an argument he had with another firefighter while off duty, and repeatedly skipping him for a promotion. He filed a lawsuit alleging Ridgewood retaliated against him in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”).

It is unclear why, but prior to the trial the judge dismissed Mr. Reilly’s claim for lost salary and benefits. At the trial, the jury found Ridgewood retaliated against Mr. Reilly, and awarded him $3.5 million for his emotional distress. On a post-trial motion, Ridgewood asked the judge to throw out the entire verdict, but the court found no basis to do so.

Judge Reduces $3.5 Million Retaliation Verdict to $500,000.jpgRidgewood also asked the judge to reduce the amount of Mr. Reilly’s emotional damages award, claiming $3.5 million was so high it was a miscarriage of justice. The judge agreed, finding the award was so excessive that it was “shocking.” Although Mr. Reilly appealed, in Reilly v. Village of Ridgewood the Appellate Division affirmed.

As the trial court explained, in deciding whether to remit a jury verdict, a court is required to consider (1) the facts supporting the damages, (2) damage awards in similar cases, and (3) the judge’s “feel of the case,” to determine whether the damages were so “wide of the mark” to require a reduction.

With respect to the first factor, Mr. Reilly testified about the anxiety and depression he experienced but did not rely on any medical testimony. He explained he was a third generation firefighter whose career had been destroyed. He told the jury he no longer felt safe at his job because he could not trust his co-workers to back him up at a fire scene. He also indicated he was worried Ridgewood would fire him for any small error he might make.

With respect to the second factor, the judge reviewed numerous other employment law cases, and noted that none of them awarded close to $3.5 million for emotional distress. He discussed cases with emotional distress awards ranging between $125,000 and $1.5 million. He noted that the cases at the higher end of that range involved medical testimony regarding the employee’s pain and suffering, treatment for the emotional distress, physical symptoms, and/or other more serious manifestations of the emotional harm. He also noted that the cases at the lower end of the spectrum did not involve anything comparable to Mr. Reilly’s fear that his fellow firefighters would not back him up and that Ridgewood would fire him for any mistake he made.

With respect to the final factor, the judge described his observations about Mr. Reilly at the trial, including that he cried and showed emotion during his testimony, but seemed composed during the rest of the trial and did not otherwise demonstrate any behavior that suggested he was experiencing emotional distress.

When a judge concludes a jury’s verdict is so shocking that it must be reduced, he is required to replace it with “the highest figure that could be supported by the evidence.” After weighing all three factors, the trial judge determined that $500,000 was the highest award that could be supported by the evidence. Accordingly, he reduced Mr. Reilly’s emotional distress damages to $500,000, a very substantial award for an individual who did not have any medical testimony to support his emotional distress damages, but $3 million less than the jury had awarded.

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