Articles Posted in Retaliation / Whistleblowing

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.

United 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.

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.

The 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.

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.

Ridgewood 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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Last week, I discussed a case which Clarifies How to Prove Sexual Harassment Under New York City Law. The same case also demonstrates how broad the New York City Human Rights Law (NYCHRL)’s protection is for employees who object about unlawful discrimination or harassment at work. It is a particularly noteworthy employment law decision because it recognizes that a company can violate the NYCHRL if it fires an employee whose job performance is extremely poor if there is evidence the company did not make the decision to fire her until after she objected about sexual harassment.
The NYCHRL prohibits employers from retaliating against anyone who opposes unlawful discrimination or harassment. It has been interpreted to protect a wide range of opposition to discrimination and harassment, including something as simple as expressing the opinion that certain treatment by a supervisor was improper or wrong. It also has been interpreted to prevent a wide range of retaliatory actions. In addition to prohibiting severe forms of retaliation such as firing, demoting, or suspending an employee, it also prohibits any other form of reprisal that is likely to deter someone from objecting to illegal discrimination in the future.

In Mihalik v. Credit Agricole Cheuvreux North America, Inc., Renee Mihalik claims her company’s Chief Executive Officer, Ian Peacock, retaliated against her after she rejected his sexual advance in December 2007. In particular, she told him his behavior was “offensive and shameful.” She claims Mr. Peacock subsequently berated her in front of her coworkers by saying she adds “nothing of value” to the company, has “no f–ing clue” about what she is doing, and is “pretty much useless.” She also claims Mr. Peacock stopped sitting next to her at the trading desk, and told the staff not to invite her to meetings. The Second Circuit Court of Appeals concluded that a jury could find Mr. Peacock took these demeaning actions toward Ms. Mihalik in response to her objection to his sexual overtures, and his behavior reasonably could deter Ms. Mihalik and/or other employees from coming forward with complaints about discrimination in the future.

Ms. Mihalik further claims Mr. Peacock retaliated against her by firing her. During a meeting in April 2008, Mr. Peacock told Ms. Mihalik that things were not working out with her. She responded by asking what was not working out, “me and you or me at the company?” The Court ruled that a jury could believe her question was a reference to her previous rejection of Mr. Peacock’s sexual advances, and as a result could find his decision to fire her was retaliatory.

Notably, the court reached this conclusion even though there was proof that Ms. Mihalik’s job performance was extremely poor. However, there also was evidence that Mr. Peacock had never spoken to her about her job performance before this meeting, Mr. Peacock admitted he had not decided to fire Ms. Mihalik before the meeting, and there was evidence he decided to fire her only after he became angry about her objection to his inappropriate behavior. Alternatively, the court found that a jury could conclude that Mr. Peacock had more than one reason for firing Ms. Mihalik — her poor performance and her objection to his sexual advances. Either way, it ruled there is enough evidence to support Ms. Mihalik’s claim, and her case should proceed to a trial.

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A federal judge recently denied an employer’s attempt to dismiss an employee’s claim under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA). The employee, Mary Stapleton, claims her former employer, DSW, Inc., fired her in violation of CEPA. Ms. Stapleton worked for DSW, a shoe store, in New Jersey. In March 2012, she called New Jersey’s Division of Child Protection and Permanency (DCPP) because she saw a female customer who appeared to be neglecting her twenty-two month old child. Among other things, the customer refused to change the child even though she smelled of feces, did nothing to stop the child from painting the store’s shelves with nail polish, did not even notice when Ms. Stapleton took the nail polish from the child, and did not react when the child pulled on several other customers’ clothes. When the child took items from the counter and threw them on the floor, the customer threatened to hit the child when they got home. Ms. Stapleton reported this to DCPP, and provided the customer’s name and address so the agency could identify the customer.

The next day, the store’s District Manager learned that Ms. Stapleton had reported the customer to DCPP. She required Ms. Stapleton to submit a written statement about the incident. A few days later, DSW fired Ms. Stapleton because she provided the customer’s private identifying information to DCPP, in violation of a company policy prohibiting employees from giving out a customer’s identifying information. Ms. Stapleton indicated she was trying to act in the best interests of the child, and that DSW’s policy prohibiting her from providing the customer’s information was not in the best interests of the child. Nonetheless, DSW did not change its decision to fire her.

Ms. Stapleton eventually filed a lawsuit, claiming DSW fired her in retaliation for her refusal to follow a company policy she reasonably believed was incompatible with the best interests of the child, in violation of CEPA. DSW asked the judge to dismiss her case, arguing Ms. Stapleton did not engage in any whistleblowing activity that is protected under CEPA.

In Stapleton v. DSW, Inc., the United States District Court for the District of New Jersey denied DSW’s motion. The Court explained that the purpose of CEPA is to provide protection “to vulnerable employees who have the courage to speak out against or decline to participate in an employer’s actions that are contrary to public policy mandates.” Among its broad protections, CEPA makes it unlawful for an employer to retaliate against an employee who “objects to, or refuses to participate in” an employer’s activity which the employee “reasonably believes” violates the law, or a clear mandate of public policy relating to public health, safety, or welfare.

The Court agreed with DSW that Ms. Stapleton did not object to the company’s confidentiality policy until after she had been fired, and as a result could not prove retaliation on that basis. However, it found that if Ms. Stapelton’s allegations are true then the company fired her because she refused to comply with a policy she reasonably believed violated the law or a clear mandate of public policy regarding public health, safety, or welfare, since the policy prohibiting employees from giving out a customer’s private identifying information would have prevented her from taking an action she believed was necessary to protect the child’s health and safety. As a result, it found she has properly set forth a claim under CEPA and can proceed with her lawsuit.

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New Jersey has a very broad whistleblower law, the Conscientious Employee Protection Act (CEPA). CEPA protects employees from retaliation when they object to, disclose, or refuse to participate in an activity they reasonably believe (1) is in violation of a law, or a rule or regulation written pursuant to law, (2) is fraudulent or criminal, or (3) is incompatible with a clear mandate of public policy concerning public health, safety, or welfare or protection of the environment. Last month, in Hallanan v. Township of Fairfield Board of Education, New Jersey’s Appellate Division ruled that CEPA protects an employee of a local school district who objected to an apparent violation of her school district’s affirmative action policy since the policy was written to comply with a New Jersey Board of Education regulation.

Lynne C. Hallanan worked for the Township of Fairfield Board of Education as a Supervisor of Curriculum and Instruction. She was also the school district’s Affirmative Action Officer. One of her job duties was to prepare an annual Comprehensive Equity Plan (CEP). The CEP documented the school district’s compliance with its Affirmative Action Guidelines. The district established those guidelines to comply with a New Jersey Board of Education regulation, N.J.A.C. § 6A:7-1.4(c)(2). That regulation requires school districts to identify and correct all unfair educational and hiring policies to ensure “all persons regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status shall have equal and bias free access to all categories of employment in the public educational system of New Jersey.”

In preparing the CEP, Ms. Hallanan became concerned the Fairfield Board of Education had not posted certain job openings before filling the positions, as required under its Affirmative Action Guidelines. She asked the teacher’s union and the superintendent for documents showing that certain positions (including the superintendent’s position) had been posted before they were filled. She never received any such documents.

Ms. Hallanan then submitted a draft CEP to the superintendent in which she stated that the district was unable to find paperwork proving it had followed all of its affirmative action policies. According to her, the superintendent indicated he was unhappy she included that in her report, and told her to remove it from the final version. Ms. Hallanan testified that the superintendent then warned her that she was “calling a strike on yourself with this.” She also said she felt the superintendent started harassing her after she submitted her draft report. Approximately one month later, the superintendent told Ms. Hallanan that her position was going to be eliminated as a cost-saving measure.

The trial court dismissed Ms. Hallanan’s case. It found she did not fall within CEPA’s protection because she did not reasonably believe her employer violated a law or regulation, but only believed it had violated its own internal Affirmative Action policy. However, the Appellate Division saw it differently. It found Ms. Hallanan had objected to something she reasonably believed violated N.J.A.C. § 6A:7-1.4(c)(2), a Board of Education regulation that seeks to prohibit employment discrimination. It also found evidence that Ms. Hallanan reasonably believed the district had bypassed its own Affirmative Action Guidelines when it hired several employees, including the superintendent. Finally, it concluded that there was enough evidence for a jury to find that the decision to fire Ms. Hallanan was retaliatory. As a result, it reversed the lower court’s decision to dismiss Ms. Hallanan’s case, paving the way for her to have her day in court.

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The New Jersey Appellate Division recently ruled, in an employment law case in which the same law firm represented two clients, and only one of those clients won at trial, it was improper to reduce the attorney’s fee award by 50%. Many employment laws, including New Jersey’s Conscientious Employee Protection Act (CEPA) and the New Jersey Law Against Discrimination (LAD), allow an employee who wins his case to recover his reasonable attorney’s fees and costs. Ordinarily, when an attorney achieves excellent results for his client, he should be awarded all of his attorney’s fees. Otherwise, the judge can reduce the fee based on the time that he finds was unnecessary or unreasonable.

The case, Donelson v. DuPont, involved two employees. Joseph Donelson brought a whistleblower claim under CEPA and an age discrimination claim under the LAD. However, he lost his case at trial. The other employee, John Seddon, brought a whistleblower claim under CEPA. Seddon won at trial, and the jury awarded him $724,000 in economic damages, plus $500,000 in punitive damages. As I discussed in June, in an earlier decision stemming from Donelson, the New Jersey Supreme Court ruled that New Jersey Employees Can Recover Lost Wages if Forced to Resign Because Retaliation Caused Psychiatric Disorder. But the Court sent the case back to the Appellate Division to decide whether the trial court had properly reduced Seddon’s attorney’s fees.

Since Seddon and Donelson were represented by the same lawyer, and their cases were factually related, it was difficult to determine how much of the total time the lawyers spent on the case was necessary to Seddon’s case, and how much was only necessary for Donelson’s case. As a result, the trial judge decided to cut Seddon’s attorney’s fee award in half.

The Appellate Division ruled that, when the trial judge calculated Seddon’s attorney’s fees, it was proper to consider the fact that Donelson lost his LAD case. However, it found it was improper to reduce Seddon’s attorney’s fee by 50 percent because Donelson would have been a witness in Seddon’s case even if he was not a party to the lawsuit, and his attorney would have had to spend much of the same time either way. Accordingly, the Appellate Division sent the case back to the trial court to reassess the appropriate attorney’s fee.

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Last week, I discussed the case of Thomas Bowers, an IT Professional who won his appeal of his race discrimination case against the New Jersey Judiciary. That case, Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, also discusses Mr. Bowers’ retaliation claim.

Mr. Bowers filed an internal Equal Employment Opportunity (“EEO”) complaint with his employer, the New Jersey Judiciary. He claimed his new supervisor, Troy Fitzpactrick, was harassing him because of his race. For example, he indicated that Mr. Fitzpatrick gave him assignments with unrealistic deadlines.

According to Mr. Bowers, the day after Mr. Bowers was interviewed about his EEO complaint, Mr. Fitzpatrick called him into his office and asked him about his complaint and work assignments. That meeting eventually became heated, and Mr. Fitzpatrick made threatening statements. Three days later, Mr. Bowers filed a second EEO complaint about Mr. Fitzpatrick’s behavior during that meeting.

Mr. Bowers then went on a medical leave due to anxiety and stress caused by the harassment and discrimination he had been experiencing at work. During the first month of Mr. Bowers’ medical leave, several Judiciary employees and a sheriff’s officer came to Mr. Bowers’ home to take back his laptop, supposedly because they were investigating a security breach. However, there is evidence that the Judiciary had little or no reason to suspect that Mr. Bowers was involved in that security breach.

Approximately three months later, the Judiciary terminated Mr. Bowers’ employment, claiming he “abandoned” his job. However, at that point Mr. Bowers still had not been cleared to return from his medical leave.

The trial court dismissed Mr. Bowers’ retaliation claim, concluding that the lower-level job duties he was assigned were part of his job description, his argument with Fitzpatrick and the confiscation of his laptop were not legally actionable, and his termination was not retaliatory. But New Jersey’s Appellate Division found these conclusions were reasonable, but that it was possible that a jury would instead find that some or all of the Judiciary’s actions toward Mr. Bowers were retaliatory. It therefore sent Mr. Bowers’ case back to the trial court, to give him an opportunity to try to prove his retaliation claim.

The Appellate Division’s decision also addressed Mr. Bowers’ claim that the Judiciary failed to provide a reasonable accommodation for his disability, Anxiety Disorder. I will discuss that aspect of his case in my next article.

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