JERRY DEAN RIVERA VS. STATE OF NEW JERSEY (L-0946-16, SOMERSET COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0086-17T4
JERRY DEAN RIVERA,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY
DEPARTMENT OF HUMAN
SERVICES, a body politic,
ANTIONO BRINDISI,
WILLIAM DENKOVIC,
MARY JO KURTAIK,
CAROLYN TREFFINGER,
and VICTOR PATEL,
Defendants-Respondents.
______________________________
Argued February 11, 2019 – Decided March 28, 2019
Before Judges Haas, Sumners, and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0946-16.
Maurice W. McLaughlin argued the cause for appellant
(McLaughlin & Nardi, LLC, attorneys; Maurice W.
McLaughlin and Robert K. Chewning, on the briefs).
Agnes Irene Rymer, Deputy Attorney General, argued
the cause for the respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton Schaffer,
of counsel; Agnes Irene Rymer and Kimberly Ann
Eaton, Deputy Attorneys General, on the brief).
PER CURIAM
Plaintiff Jerry Dean Rivera appeals from the Law Division's August 22,
2017 order granting summary judgment to defendants and dismissing his
complaint with prejudice. Plaintiff's complaint alleged that his former
employer, the New Jersey Department of Human Services ("DHS"), created a
hostile work environment and terminated his employment as a housekeeping
supervisor in violation of (1) New Jersey's Law Against Discrimination
("LAD"), N.J.S.A. 10:5-1 to -49; (2) the Conscientious Employment Protection
Act ("CEPA"), N.J.S.A. 34:19-1 to -9; and (3) the common law under Pierce v.
Othro Pharmaceutical Corp., 84 N.J. 58 (1980).
For the reasons that follow, we reverse the trial court's grant of summary
judgment and remand for further proceedings.
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I.
A.
We summarize the following facts from the record, viewing "the facts in
the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co.
v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)).
Plaintiff's Position and Work History
Plaintiff, a Hispanic male of Puerto Rican descent, was employed by DHS
at the Green Brook Regional Center ("GBRC") since March 2008. Prior to his
termination, plaintiff held the position of "Housekeeper Supervisor 2" in the
housekeeping department at GBRC.
The New Jersey Civil Service Commission's job specification sheet
defines the position of Housekeeping Supervisor 2 as follows: "Under direction
in a medium size building complex in a state or local government department,
agency, or college, organizes and supervises a complete housekeeping program;
assigns personnel; recommends procedures and methods of all housekeeping
areas; does other related duties as required."
Although the job specification sheet does not specifically list regular
attendance as a requirement of the position of Housekeeping 2 Supervisor,
defendant Antonio Brindisi, the CEO of GBRC, certified: "Housekeeping
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Supervisors are required to be at facility, as an essential function of the job. I t
is a hands-on position that can only be performed at the facility. Regular
attendance at the assigned facility is an essential function of the Housekeeping
Supervisor's job."
Additionally, DHS has a policy regarding employee absences contained
in Administrative Order 4:08 - Disciplinary Action Polices and Responsibilities
("Discipline Policy"). The Discipline Policy provides the following schedule of
penalties for "chronic or excessive absenteeism from work without pay":
First Infraction: Minimum penalty of counseling to
maximum penalty of written warning.
Second Infraction: Minimum penalty of written
warning to maximum penalty of official reprimand.
Third Infraction: Minimum penalty of official
reprimand to maximum penalty of removal.
Fourth infraction: Removal is the only penalty.
However, the Discipline Policy does not define "chronic or excessive
absenteeism."
The Discipline Policy does indicate that under Civil Service Rule 4:1-
16.14(a):
Any employee who is absent from duty for more than
five (5) consecutive business days without notice and
approval of his superior of the reasons for such
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absences, and the time he expects to return, or who fails
to report to duty within five (5) business days after the
expiration of any authorized leave shall be held to have
resigned not in good standing.
The Discipline Policy further notes: "Such involuntary resignation is not
considered disciplinary action and is included here only as a matter of notice
and convenience."
Carol Miller, the Supervising Payroll Clerk of the Division of
Developmental Disabilities, certified that plaintiff received written warnings
and official discipline for excessive absenteeism during his employment with
DHS. In October 2012, plaintiff received two written warnings that he was
required to provide medical documentation for recent absences spanning over
five consecutive work days. On December 19, 2013, plaintiff received a written
warning for his first official infraction of chronic or excessive absenteeism for
being absent and unexcused for nine work days between August 7 and October
29, 2013.
On August 8, 2014, DHS issued a written reprimand to plaintiff, his
second official infraction of chronic or excessive absenteeism, for being absent
and unexcused for fourteen work days between April 15 and August 7, 2014.
On January 8, 2015, DHS issued a Final Notice of Major Disciplinary Action
("FNDA") charging him with his third official infraction of chronic and
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excessive absenteeism for being absent and unexcused for ten days between
September 24 and December 1, 2014. Plaintiff was suspended from work for
fifteen days.
Plaintiff denied that he was absent for all the days that Miller certified he
was absent and he also contends that not all of the charged absences were
consecutive. In this regard, defendants have submitted only one timesheet, for
the period from June 15 to September 8, 2015, to substantiate the charged
absences.1 Plaintiff, however, acknowledges he submitted administrative
appeals of the second and third charges, but later withdrew the appeals and
accepted the penalties without departmental hearings.
Despite this history of absenteeism, on January 30, 2015, CEO Brindisi
provided a positive evaluation in a "Performance Evaluation System" report.
The evaluation, which covered the period from March 1, 2014 to February 28,
2015, indicated that plaintiff received a final rating of "Satisfactory" and passed
all listed job expectations. The evaluation, however, noted "[plaintiff] needs to
work on attendance issues and apply for [Family Medical Leave Act] so that any
absences are appropriate."
1
Defendants do submit the written warning for plaintiff's first official
attendance infraction, as well as official notices of disciplinary action for the
second and third infractions.
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Plaintiff's Allegations of Discrimination and Hostile Work Environment
DHS has a formal policy for employees to submit complaints of
discrimination or harassment to the DHS's Equal Employment Opportunity
("EEO") officer. During his employment with DHS, plaintiff raised both
informal and formal allegations regarding racial discrimination by DHS.
In January 2014, plaintiff objected to defendants' practice of refusing to
assign Hispanic employees to the preferential job assignment of snow removal.
In February 2014, plaintiff emailed Brindisi and DHS human resources staff
members regarding the failure to pay a Hispanic employee overtime pay. In
March 2014, plaintiff wrote to his union regarding a "hostile work environment,"
alleging that he was being singled out for investigations by supervisors and was
not being supported by management. Plaintiff asserts that he made additional
written and oral objections regarding the creation of a hostile work environment
due to his national origin.
Between April 25, 2014 and April 10, 2015, plaintiff submitted five EEO
complaints against twelve DHS employees, alleging discrimination based on
race and national origin, retaliation for complaining about discrimination, and
the creation of a hostile work environment. On August 14, 2015, the New Jersey
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Office of EEO sent plaintiff a letter, advising that it had investigated plaintiff's
complaints and could not substantiate any violations of State policy. The letter
stated that the twelve respondents and eighteen witnesses were interviewed, and
that over 200 documents were reviewed.
In this case, plaintiff alleges that defendants retaliated against him for
objecting to discriminatory practices by: (1) refusing to provide him with a
temporary employee to assist with clerical work and necessary equipment to
adequately perform his job responsibilities, while other similar situated
employees received such assistance and equipment; (2) verbally harassing and
embarrassing him in front of his coworkers; (3) requiring him to fill out daily
time sheets while other similarly situated employees were only required to fill
out bi-weekly time sheets; (4) suspending and disciplining him for his absences
due to his protected disabilities; (5) denying plaintiff's request to transfer to
another facility; and (6) removing him from his office at GRBC and relocating
his work area to a storage closet.
Plaintiff's Requests for Accommodations
On April 25, 2014, plaintiff sent a letter to Brindisi alleging a hostile work
environment. The letter stated: "A group of employees continue to attack me
and I feel it is racially motivated. They are engaging in mobbing and bullying
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type conduct in the work place. The conduct has risen to the level of a hostile
work environment." The letter did not request any particular accommodation
for a disability or specifically request reassignment to a new facility, but
requested that plaintiff be "provide[d] a harmonious respectful place . . . to
work."
After receiving the letter, Brindisi met with plaintiff. According to
Brindisi, he asked plaintiff if he wanted to be assigned out of the housekeeping
department and into another department at GRBC, but plaintiff responded that
he did not want any reassignment. Brindisi certified that plaintiff never
mentioned any disability during this meeting.
Plaintiff denies that Brindisi asked plaintiff if he wanted a reassignment
to another department at GBRC during this meeting. Additionally, plaintiff
certified that he told Brindisi that he wanted a reassignment or transfer "because
[d]efendants' continued discrimination, harassment, and hostile work
environment was worsening symptoms related to [his] disabilities."
Plaintiff asserts that he began to suffer from symptoms of major
depressive disorder and generalized anxiety disorder in or around May 2014.
On May 21, 2014, a psychologist sent a letter to GBRC's human resource
department stating that plaintiff was a current client at Summit Psychological
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Services and had been unable to attend work the past two days due to emotional
distress.
On December 17, 2014, plaintiff sent a letter to Brindisi requesting
"reassignment" pursuant to a provision of his union contract. The letter stated:
"As per Executive Order #49, The State of New Jersey recognizes its obligation
to provide a safe, respectful, and harmonious place for each of its employees to
work." Brindisi responded via letter on December 23 2014, stating that he would
look into reassignments, but could not make any promises as another DHS
facility had recently closed and was affecting staffing.
On May 5, 2015, plaintiff sent Brenda Baxter, of DHS, an email requesting
a transfer due to a hostile work environment and other employees "mobbing and
bull[y]ing against [him]." Baxter responded that she was "arranging a transfer."
Within this email exchange, plaintiff stated: "I apologize for the delay [i n
sending a formal reassignment request], however as you are well aware I am not
doing well emotionally."
Plaintiff asserts that after emailing Baxter, he met with her for
approximately two hours to discuss his need to be transferred to another facility
based on his disabilities. Plaintiff avers he specifically discussed how
defendants' discrimination, harassment, and hostile work environment were
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causing the symptoms of his disabilities to worsen and making it difficult for
him to adequately perform his job.
Additionally, in May 2015, plaintiff was officially diagnosed with major
depressive disorder and generalized anxiety disorder. On May 26, 2015, a
clinician from High Focus Centers sent a letter to defendant Carolyn Treffinger,
DHS's Human Resources Manager and ADA Coordinator, stating that plaintiff
had begun treatment in the adult psychiatric program on May 19, 2015. The
letter stated that plaintiff would be attending the program five days per week
from 1:30 to 4:30 p.m. until June 30, 2015. Although plaintiff never submitted
the required paperwork for an ADA accommodation, DHS allowed plaintiff to
work only half days on three days per week in May and June 2015 so that he
could attend the adult psychiatric program.
On May 29, 2015, the clinician sent another letter to Treffinger, reiterating
that plaintiff was attending the adult psychiatric program. The letter also stated
that plaintiff was diagnosed with major depressive disorder and generalized
anxiety disorder and was planning to return to work on a reduced schedule on
June 4. On June 4, the clinician again sent a letter to Treffinger, stating that
plaintiff was now attending the adult psychiatric program three days per week
and still planned on returning to work on a reduced schedule on June 4.
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It is undisputed that DHS's human resource office temporarily assigned
plaintiff to work at the Hunterdon Developmental Center from June 15, 2015 to
September 7, 2015. The parties, however, dispute the reason for this temporary
assignment. Treffinger certified that the transfer was to remove plaintiff from
GBRC while his EEO complaints were being investigated and that the transfer
was not an accommodation for a disability. On the other hand, plaintiff certified:
"As a result of meeting with Brenda Baxter, [d]efendants agreed to reassign
and/or transfer me to the Hunterdon facility as an accommodation for my
disability."
The parties do not dispute that plaintiff had limited attendance while he
was assigned to work the Hunterdon facility. Of the sixty days that he was
scheduled to work, plaintiff worked a full shift on only twenty-three days. He
was absent for the whole shift on thirty-one days and absent for partial shifts on
six days. Treffinger certifies that after plaintiff's EEO complaints were found
to be unsubstantiated in August 2015, the temporary assignment was ended and
plaintiff returned to his regular assignment at GBRC around September 8, 2015.
On the other hand, plaintiff asserts: "On or about September 8, 2015,
[d]efendants arbitrarily revoked my accommodation, forced me back to work at
GBRC, and relocated my work area to a storage closet. These arbitrary actions
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of discrimination, harassment, and hostile work environment worsened my
disability symptoms."
Plaintiff asserts that on October 9, 2015, he again requested reassignment
to another facility as a result of defendants' discrimination, harassment , or
hostile work environment. This request was supported by a handwritten note on
a prescription blank from his treating psychiatrist dated October 20, 2015. The
note stated, among other things, that the psychiatrist "recommend[ed] that
[plaintiff] return to Hunterdon [Developmental Center] for his mental health.
Recurrence of depression [and] anxiety when assigned back to [GBRC.]" On
October 20, 2015, Miller sent plaintiff a letter advising that the handwritten note
was not acceptable medical documentation under DHS's policies.
Plaintiff's Final Attendance Infraction and Termination
On November 4, 2015, plaintiff received a Preliminary Notice of
Disciplinary Action ("PNDA") charging him with his fourth infraction for
chronic or excessive absenteeism. The PNDA charged that plaintiff had been
absent and unexcused for fifteen work days between October 14 and November
3, 2015. The recommended penalty was removal.
Plaintiff administratively appealed the PNDA and received a departmental
hearing on December 8, 2015. Plaintiff was represented by a union
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representative at the hearing. His union representative did not explicitly dispute
the absences, but presented "a series of letters, notes, and other communications"
correlating to the days that plaintiff was absent. The union representative
indicated that the medical documentation showed that plaintiff has a mental
illness and requested that the penalty be lessened based on plaintiff's mental
illness. The hearing officer determined that the medical documentation was
"irrelevant and immaterial to the charges . . . [and] contain[ed] confidential
medical information of a highly sensitive nature." Therefore, the hearing officer
removed the medical documentation from the record and destroyed the physical
copies of the documentation.
The hearing officer sustained the charge and the penalty of termination in
a written decision. The hearing officer found that plaintiff: (1) had at least
fifteen absences without pay in 2015; (2) failed to provide acceptable medical
notes for numerous absences in 2015; (3) accepted a written warning in 2013 for
chronic and excessive absenteeism; (4) had an extensive history of prior
corrective/disciplinary actions, including oral warnings, written warnings,
official reprimand, and suspension; and (5) did not have an approved leave of
absence in place for his absences. Accordingly, on December 18, 2015, DHS
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issued a FNDA terminating plaintiff from employment. Plaintiff did not appeal
the FNDA to this court.
B.
On June 15, 2016, plaintiff filed a complaint against defendants, alleging
the following counts: hostile work environment in violation of CEPA (count
one); adverse employment actions in violation of CEPA (count two); violations
of public policy under Pierce, 84 N.J. 58 (1980) (count three); violation of the
New Jersey Civil Rights Act ("NJCRA"), N.J.S.A. 10:6-1 to -2 (count four);
hostile work environment in violation of the LAD (count five); adverse
employment actions in violation of the LAD (count six); failure to accommodate
in violation of the LAD (count seven); retaliation in violation of the LAD (count
eight); intentional infliction of emotional distress (count nine); respondeat
superior liability under Monell v. New York City Dep't of Soc. Servs., 436 U.S.
658 (1978) (count ten); and punitive damages (count eleven).
On September 27, 2016, defendants moved to dismiss the complaint. On
November 18, 2016, the trial court granted the motion in part, dismissing the
NJCRA count (count four) and the count of intentional infliction of emotional
distress (count nine), but declining to dismiss the remaining counts. Thereafter,
defendants answered the complaint.
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Defendants served plaintiff with interrogatories and document demands,
to which plaintiff responded on March 31, 2017. On March 9, 2017, plaintiff
served defendants with interrogatories and document demands. In response,
defendants filed a motion for a protective order as to all of plaintiff's
interrogatories and document demands.
During a conference regarding the discovery dispute, defendants advised
that they intended to move for summary judgment based on the holding of
Svarnas v. AT&T Communic'ns, 326 N.J. Super 59 (App. Div. 1999). Plaintiff
agreed to stay discovery pending the summary judgment motion as long as the
motion would be limited to plaintiff's LAD claims and discovery was not needed
to resolve the motion. Accordingly, the trial court stayed discovery pending the
motion for summary judgment. Thus, defendants provided no discovery prior
to filing the motion for summary judgment. On May 26, 2017, defendants filed
a motion for summary judgment as to all of plaintiffs' claims. Plaintiff opposed
the motion.
On August 22, 2017, the trial court issued a fifty-seven page written
opinion granting defendant's motion for summary judgment. First, the trial court
determined that regular attendance was an essential function of plaintiff's job.
Relying on Svarnas, the court found that defendants were not required to
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accommodate plaintiff's excessive absenteeism. The court also found that
plaintiff was precluded from challenging the documented absences and DHS's
application of its attendance policy, because he did not appeal the final agency
decisions or adequately deny the absences in his response to defendants'
statement of uncontested material facts. Therefore, the court concluded that
plaintiff's four LAD claims failed as a matter of law because defendant was not
performing the essential functions of his job. 2
The trial court also found alternative grounds for dismissing some of
plaintiff's LAD claims as a matter of law. The trial court concluded that
plaintiff's failure-to-accommodate claim under the LAD failed because: (1) an
employer is not required to accommodate a disability by permitting excessive or
chronic absenteeism; (2) plaintiff never asked for an accommodation for a
disability; and (3) plaintiff's chronic absenteeism continued after his transfer to
the Hunterdon facility. The trial court also determined that plaintiff's LAD
2
Alternatively, the trial court found that plaintiff's LAD claims failed as a
matter of law because defendants had presented a legitimate non-discriminatory
reason to terminate plaintiff: his excessive absenteeism. The court determined
that there were no disputed issues of material fact that would permit a jury to
find pretext.
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retaliation claim failed because admitted or substantiated disciplinary charges
and resulting punishments are not retaliatory. 3
Next, the trial court concluded that plaintiff's Pierce claim failed because
there was no public policy violated by his termination for excessive absenteeism.
The court also found that plaintiff's single complaint about overtime pay for one
Hispanic employee was insufficient to constitute a violation of public policy.
Similarly, the trial court concluded that plaintiff's CEPA claims failed as
a matter of law. The court reasoned that although the prima facie elements of a
CEPA claim do not expressly include proof that the employee was performing
the essential functions of the job, such a requirement was implicit in all
employment actions. The court further found that plaintiff had failed to establish
a causal connection between any alleged whistleblowing and his termination,
because plaintiff was fired for the non-retaliatory reason of excessive
absenteeism. The court also concluded that plaintiff's alleged instances of a
hostile work environment were insufficient to sustain a CEPA claim
Finally, the court found that plaintiff's respondeat superior claim failed as
a matter of law because plaintiff had not identified any discriminatory policy,
3
The Court further found that other than his termination, none of plaintiffs other
allegations against defendants constituted retaliation under the LAD.
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practice, or custom of DHS other than in conclusory terms. Similarly, the court
concluded that plaintiff had not set forth any facts sufficient to meet the stringent
standard for punitive damages.
For all of these reasons, the trial court found that defendants were entitled
to summary judgment as to all counts of plaintiff's complaint and dismissed all
counts of plaintiff's complaint with prejudice. Plaintiff appealed the trial court's
order granting summary judgment.
II.
A.
On appeal, plaintiff challenges each basis on which the trial court granted
summary judgment. Plaintiff contends the trial court ignored genuine issues of
material fact and inappropriately granted summary judgment prior to defendants
providing any discovery to plaintiff. Plaintiff argues that the trial court erred in
determining that: (1) plaintiff failed to perform the essential function of his
position; (2) defendants had a legitimate non-discriminatory reason to terminate
plaintiff; (3) defendants did not retaliate against plaintiff for his objection to
racial and national origin discrimination; and (4) defendants' actions did not rise
to the level of a hostile work environment.
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Defendants argue that the trial court appropriately granted summary
judgment because plaintiff failed to identify any genuine issue of material fact.
Defendants further submit that the issues that plaintiff argues require discovery
are not material, such as defendants' motivations for the disciplinary actions,
defendants' efforts to engage in the interactive practice to accommodate
plaintiff's disability, and communications regarding plaintiff's disciplinary
hearings. In this regard, defendants contend that the trial court correctly deemed
plaintiff's absences as admitted because he did not appeal the penalties imposed
by DHS for the official infractions of chronic and excessive absenteeism.
Therefore, defendants argue no reasonable jury could find that defendants
terminated plaintiff for any reason other than his excessive absenteeism.
Having reviewed the record in light of the applicable legal principles, we
agree with plaintiff that genuine issues of material fact exist as to each of
plaintiff's claims that preclude summary judgment.
B.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,
330 (2010). Summary judgment must be granted if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
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any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2(c). We consider whether "the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged disputed issue in favor of
the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995).
Although Rule 4:46-1 permits a party to file a motion for summary
judgment before the close of discovery, "[g]enerally, summary judgment is
inappropriate prior to the completion of discovery." Wellington v. Estate of
Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003) (citing Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)). A party opposing a motion
for summary judgment on the grounds that discovery is incomplete, however,
must "demonstrate with some degree of particularity the likelihood that further
discovery will supply the missing elements of the cause of action." Badiali v.
New Jersey Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (quoting Wellington, 359
N.J. Super. at 496); see also Trinity Church v. Lawson-Bell, 394 N.J. Super.
159, 166 (App. Div. 2007) ("A party opposing summary judgment on the ground
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that more discovery is needed must specify what further discovery is required,
rather than simply asserting a generic contention that discovery is incomplete.")
When additional discovery on material issues may give rise to a jury
question, the party opposing summary judgment should be given the opportunity
to take discovery before disposition of the motion. See Wilson v. Amerada Hess
Corp., 168 N.J. 236, 253-54 (2001) (reversing summary judgment where
requested discovery might support inference of bad faith sufficient to raise jury
question); Mohamed v. Iglesia Evangelica Oasis De Dalvacion, 424 N.J. Super.
489, 499-500 (App. Div. 2012) (reversing summary judgment where discovery
period had five months to run and additional discovery was material to whether
defendant engaged in commercial activity on its premises). However,
"discovery need not be undertaken or completed if it will patently not change
the outcome." Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div. 2004).
C.
At bottom, defendants contend they were entitled to summary judgment
because they were not required to accommodate plaintiff's chronic and excessive
absenteeism. Accordingly, the number of plaintiff's unexcused absences is an
issue of material fact. In this regard, the trial court found that plaintiff was
precluded from challenging the documented absences and DHS's application of
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its attendance policy, because he did not appeal the final agency decisions or
adequately deny the absences in his response to defendants' statement of
uncontested material facts.
Thus, we address the threshold issue of whether plaintiff is precluded from
challenging these absences before considering whether plaintiff has raised
genuine disputes of material fact on each of his claims. We conclude that the
trial court mistakenly determined that plaintiff was precluded from challenging
the number of days he was absent or DHS's application of its attendance policy.
The trial court relied on Winters v. North Hudson Reg'l Fire & Rescue,
212 N.J. 67 (2012) for the proposition that plaintiff could not challenge DHS's
disciplinary actions in the Superior Court because he did not appeal the
discipline when they became final agency decisions. In Winters, the Court
concluded that an employee was collaterally estopped from raising a CEPA
claim when he had raised, but failed to develop, a retaliation defense in a civil
service disciplinary proceedings. See id. at 87-88. The Court relied on the fact
that "[r]etaliation was a central theme of [the employee's] argument and that he
chose not to present [in the administrative proceeding] his comprehensive proof
of that claim does not afford him a second bite at the apple in this matter." Id.
at 88; see also Wolff v. Salem Cty. Corr. Facility, 439 N.J. Super. 282, 297-301
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(App. Div. 2015) (holding that employee was collaterally estopped from raising
CEPA claim where employee testified about retaliation in a disciplinary
hearing).
We find that the trial court's reliance on Winters was misplaced. We
interpret Winters to stand for the proposition that issue preclusion, not claim
preclusion, may apply to bar an employee from raising a CEPA retaliation claim
when the employee has already raised a retaliation defense in a disciplinary
proceeding. See Wolff, 439 N.J. Super. at 301-03 (Sabatino, J., concurring). In
this respect, "[n]either Winters nor our decision in [Wolff] should be construed
as signifying that an employee who believes that he or she has been the victim
of retaliation is obligated to raise those retaliation claims as a defense in such
disciplinary cases." Id. at 301.
According to the hearing officer's decision, plaintiff's union representative
argued only that plaintiff should receive a reduced penalty based on his
disability. The representative did not argue that DHS had a duty to reasonably
accommodate plaintiff's disability under the LAD by modifying his work
schedule, arranging for a transfer, or allowing a leave of absence. Nor did the
representative argue that plaintiff's termination was discriminatory or
retaliatory. Because these issues were not actually litigated in the departmental
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hearing, plaintiff is not collaterally estopped from raising these issues by way
of his LAD and CEPA claims.
Plaintiff, however, is collaterally estopped from challenging the
disciplinary hearing officer's factual finding that plaintiff was absent without
appropriate medical documentation for fifteen days in 2015, as all of the
elements for issue preclusion are met because, among other things, the issue was
actually adjudicated in the disciplinary hearing and was essential to the final
determination. See Winters, 212 N.J. at 85 (listing elements of collateral
estoppel).
Nonetheless, the hearing officer did not make any factual findings that
plaintiff was actually absent on the days charged for the three prior attendance
violations, only that plaintiff had been disciplined for the previous infractions.
Further, it is unclear from the record whether plaintiff was actually charged with
being absent for five consecutive work days for his four official attendance
infractions, and the hearing officer did not make any findings as to whether the
absences were consecutive. Therefore, we conclude that plaintiff may challenge
the absences charged in his first three offenses, whether all of the charged
absences were consecutive, and his total number of unexcused absences during
his employment with DHS.
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In sum, although plaintiff cannot challenge the hearing officer's factual
finding that he was absent without pay for fifteen days in 2015, he is not
collaterally estopped from: (1) arguing that DHS should have relaxed its
attendance policy or provided another reasonable accommodation for his
disability; (2) arguing that that DHS applied its attendance policy in a
discriminatory or retaliatory manner; or (3) disputing whether his charged
absences were consecutive and the total number of unexcused absences. 4
D.
Having addressed the above threshold issue, we first turn to plaintiff's
LAD claims. In this case, because plaintiff does not attempt to prove
discrimination by direct evidence, we analyze his claims under the three-step
burden-shifting test articulated by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Grande v. Saint
Clare's Health Sys., 230 N.J. 1, 17 (2017).
4
We similarly find that the trial court erred in its determination that plaintiff
did not sufficiently deny his charged absences in response to defendants'
statement of uncontested material facts, as defendant clearly denied Miller's
certification as to the days plaintiff was absent and scheduled to work. We note,
however, that plaintiff did admit his limited attendance during his transfer to the
Hunterdon facility.
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Plaintiff brings four LAD claims, each with different elements for a prima
facie case. See Victor v. State, 203 N.J. 383, 408 (2010) ("There is no single
prima facie case that applies to all employment discrimination claims.").
Accordingly, we address each cause of action individually.
Adverse Employment Action (count six)
For plaintiff's claim of adverse employment action based on race, national
origin, or disability discrimination in violation of the LAD (count six), plaintiff
must present the following elements for a prima facie case based on
discriminatory discharge: "(1) that plaintiff is in a protected class; (2) that
plaintiff was otherwise qualified and performing the essential functions of the
job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought
similarly qualified individuals for that job." Victor v. State, 203 N.J. at 409
(2010) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97 (1988)).
On summary judgment, only the second prima facie element is at issue:
whether plaintiff was performing the essential functions of his position. In this
regard, the trial court found that plaintiff was not performing the essential
functions of his position because of his chronic and excessive absenteeism.
Considering the limited record, we conclude that plaintiff presents a
genuine factual dispute as to whether the defendants could reasonably
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27
accommodate plaintiffs' absences resulting from his disability and if plaintiff
could perform the essential functions of his job with accommodations. Our
Supreme Court recently held "that the reasonable-accommodation consideration
belongs in the second-prong analysis." Grande, 230 N.J. at 21.
A plaintiff may satisfy the second prong of the prima
facie case for an allegation of discriminatory discharge
based on a disability by putting forth evidence either
that she was actually performing her job or was able,
with or without reasonable accommodation, to perform
her job to her employer's legitimate expectations.
[Ibid. (emphasis added).]
Accordingly, we consider whether, viewing the evidence in the light most
favorable to plaintiff, a reasonable jury could conclude that plaintiff was able to
perform the essential functions of his positions with a reasonable
accommodation.
"Administrative regulations set out the specific requirements of the
reasonable accommodation process mandated by the LAD." Potente v. Cty. of
Hudson, 187 N.J. 103, 110 (2006). "An employer shall consider the possibility
of reasonable accommodation before firing, demoting or refusing to hire or
promote a person with a disability on the grounds that his or her disability
precludes job performance." N.J.A.C. 13:13-2.5(b)(2). The regulations provide
that reasonable accommodations may include "[j]ob restructuring, part -time or
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28
modified work schedules or leaves of absence; . . . [or] [j]ob reassignment and
other similar actions." N.J.A.C. 13:13-2.5(b)(1)(ii) and (iv).
"An employer may rebut a plaintiff's reasonable-accommodation showing
by providing evidence that the proposed accommodation is unreasonab le."
Grande, 230 N.J. at 21 (citing N.J.A.C. 13.13-2.5(b), -2.5(b)(3)(i) to (iv)). In
this regard, the regulations provide factors to consider in determining whether
an accommodation would impose an undue hardship on the operation of the
employer's business. N.J.A.C. 13:13-2.5(b)(3)(i) to (iv). "[A]n employer is not
required to take action 'where it can reasonably be determined that an . . .
employee, as a result of the individual's disability, cannot perform the essential
function of the job even with reasonable accommodation.'" Potente, 187 N.J. at
110-11 (quoting N.J.A.C. 13:13-2.8(a)).
Defendants rely on Svarnas and contend "that there is no way to
reasonably accommodate the unpredictable aspect of an employee's sporadic and
unscheduled absences . . . even if the employee is using time allotted to her, and
even if the absences are disability related." Svarnas, 326 N.J. Super. at 77. In
Svarnas, an employee who suffered from asthma and bodily injuries from a car
accident was absent for "more than 600 days in a twenty-two-year period" and
did not improve her attendance when allowed to work part-time as requested.
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29
Id. at 80. Additionally, the employee's "absences were due to a host of illnesses,
not simply her claimed disabilities of asthma and the car-accident-related
injuries." Id. at 77. In that context, we concluded that the employee "failed to
demonstrate that, with a reasonable accommodation, she would have been able
to perform her job functions satisfactorily." Id. at 80; see also Muller v. Exxon
Research & Eng'g Co., 345 N.J. Super. 595, 604-05 (App. Div. 2001) (finding
that the employer was not required to accommodate an employee who had been
absent approximately 700 days over a seven-year period).
We find that defendants' reliance on Svarnas is misplaced. Our opinion
in Svarnas reflects that discovery was undertaken as to the employer's ability to
accommodate the employee's disability. See Svarnas 326 N.J. Super. at 69
(discussing employee's deposition testimony that her former employer
accommodated other employees' disabilities, such as alcoholism or drug
addiction, with time off). By contrast, in this case, defendants have provided
plaintiff no discovery as to DHS's ability to accommodate plaintiff's absences
with a modified work schedule, leave of absence, transfer, or other
accommodations. See id. at 78 ("The necessary level of attendance is a question
of degree depending on the circumstances of each position"). In this regard,
discovery as to the factors delineated in N.J.A.C. 13:13-2.5(3)(i) to (iv), such as
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30
the overall size of DHS and the number of similar position available, may aid in
assessing whether defendants could reasonably have accommodated plaintiff's
disability.
Moreover, as discussed above, plaintiff has raised disputes of material fact
as to his total number of unexcused absences and DHS's application of its
attendance policy. Plaintiff also emphasizes that CEO Brindisi provided a
positive performance evaluation in January 2015, evidence that plaintiff was
performing the essential functions of his position. See Grande 230 N.J. at 24-
26 (finding issue of disputed fact as to whether absences from work were
sufficiently excessive to prevent employee from performing essential functio ns,
where employee was absent for over twelve months due to injuries during her
ten-year employment). Furthermore, viewing the evidence in the light most
favorable to plaintiff, he repeatedly communicated to defendants, supported by
a note from his treating psychiatrist, that a transfer would assist him with his
mental health issues.
In these ways, with further discovery, plaintiff may be able to establish
that with a reasonable accommodation he could adequately perform the essential
duties of his position. We therefore conclude that trial court erred in
determining that plaintiff's LAD claims failed as a matter of law because he was
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31
not performing the essential function of his position due to his absences and that
defendants were not required to accommodate plaintiff's absences.
We similarly conclude that the trial court erred in finding that plaintiff
presented insufficient evidence to rebut defendants' proffered legitimate, non -
discriminatory reason, plaintiff's excessive absenteeism, for terminating
plaintiff at the second step of the McDonnell Douglas analysis. The cases cited
by defendants and the trial court on this point involve grants of summary
judgment after discovery, unlike the circumstances of the instant matter. See
Svarnas, 326 N.J. Super. at 82; Fuentes v. Peskie, 32 F.3d 759, 767 (3d Cir.
1994) (discussing deposition testimony); Hood v. Pfizer, Inc., 322 Fed. App'x.
124, 128 (3d Cir. 2009) (discussing deposition testimony). We find that with
further discovery, plaintiff may be able to obtain evidence to discredit
defendants' proffered non-discriminatory reason for terminating plaintiff. As
discussed above, disputes of material facts regarding DHS's ability to
accommodate plaintiff's absences and its application of its attendance policy
abound the record.
Failure to Accommodate (count seven)
Plaintiff contends the trial court erred in determining that his failure-to-
accommodate claim under the LAD failed on the additional grounds that (1)
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32
plaintiff never asked for an accommodation for a disability, and (2) plaintiff's
chronic absenteeism continued during after his transfer to Hunterdon
Developmental Center. 5 We agree.
To trigger an employer's duty to engage in the interactive process to
determine reasonable accommodations, the employee must make a request for
an accommodation. See Tynan v. Vicinage 13 of Superior Court, 351 N.J.
Super. 385, 400-01 (App. Div. 2002). The request, however, need not be in
writing, use any "magic words," or reference any legal source. See id. at 400.
In this case, plaintiff asserts that he requested a transfer to accommodate
his mental illness (1) during a meeting with Brindisi in 2014; (2) in emails and
a meeting with Baxter in May 2015, and (3) in a note from his treating
psychiatrist in October 2015. Plaintiff also avers his transfer to the Hunterdon
facility was an accommodation for his disability. The trial court concluded that
this evidence was insufficient as a matter of law to constitute an adequate request
for an accommodation because plaintiffs' documented requests only advised
DHS of a mental illness, not a disability, and because plaintiff never submitted
5
For the reasons discussed above with respect to plaintiff's adverse employment
action claim under the LAD, we conclude that the trial court erred in its
determination that defendants were not required to consider reasonable
accommodations for plaintiff's absences that resulted from his disability.
A-0086-17T4
33
a written request for a leave of absence or other accommodation for disability
pursuant to DHS's policies.
Viewing the evidence in the light most favorable to plaintiff and mindful
that no depositions have been taken, however, we find that plaintiff raises a
genuine dispute of material fact as to whether he adequately requested a
reasonable accommodation for his disability. The exact nature of plaintiff's
requests for accommodation, how defendants interpreted these requests, and
whether defendants took adequate steps to engage in the interactive process and
explore reasonable accommodations, are all issues that are disputed by the
parties and which cannot be resolved on the limited record.
Similarly, we reject the trial court's finding that the undisputed facts
demonstrate that plaintiff's desired accommodation of a transfer did not permit
him to perform the essential functions of his position because his absences
continued after his transfer to the Hunterdon facility. Although plaintiff admits
to his absences during this transfer, we find that this fact alone does not dictate
as a matter of law that plaintiff was unable to perform the essential functions of
his position with a reasonable accommodation. As stated above, the reasons for
plaintiff's transfer to the Hunterdon facility, as well as the reasons for the
termination of the transfer, are disputed by the parties.
A-0086-17T4
34
For these reasons, we find that the trial court erred in determining that
plaintiff's failure-to-accommodate claim failed as a matter of law based on these
alternative rationales.
Retaliation Claim (count eight)
Plaintiff also contends that the trial court erred in concluding that
plaintiff's retaliation claim under the LAD failed as a matter of law because
plaintiff cannot challenge substantiated discipline as retaliation. We again agree
with plaintiff.
A retaliation claim under the LAD has following prima facie elements:
"(1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity
known to the employer; (3) plaintiff was thereafter subjected to an adverse
employment consequence; and (4) that there is a causal link between the
protected activity and the adverse employment consequence." Victor, 203 N.J.
at 409. The trial court held that plaintiff could not establish the fourth element
because the substantiated discipline for attendance violations severed the chain
of causation from any of plaintiff's alleged protected activities.
In so holding, the trial court relied on case law suggesting that
substantiated discipline is not a retaliatory action under the LAD or CEPA. See
Beasley v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div. 2005) ("Where the
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35
affected party does not deny committing an infraction that resulted in discipline,
the discipline cannot be considered 'proscribed reprisal.'" (quoting Esposito v.
Tp. of Edison, 306 N.J. Super. 280, 291 (App. Div. 1997))); Hancock v. Borough
of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002) ("Plaintiffs cannot claim
that the substantiated disciplinary charges and resulting brief suspensions from
work were retaliatory."), appeal dismissed as improvidently granted 177 N.J.
217 (2003).
We find, however, that the foregoing cases are distinguishable from the
instant case. Both Hancock and Esposito are factually distinguishable because
the employees were disciplined for conduct unrelated to a protected class or
protected conduct. In Hancock, plaintiff police officers, who had made
disclosures regarding a lieutenant's potential falsification of payment vouchers,
were disciplined for a variety of conduct unrelated to these disclosures,
including failing to follow the chain of command, conducting personal business
during work hours, and failing to wear body armor. 347 N.J. Super. at 354 -58.
In Esposito, the plaintiffs "did not deny their commission of the infractions that
resulted in the discipline." 306 N.J. Super. at 291.
In this case, by contrast, plaintiff alleges that the absences for which he
was disciplined resulted from a protected disability and that defendants
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36
terminated him in relation for his objections to discriminatory practices rather
than providing a reasonable accommodation for his disability. Thus, unlike in
Hancock, plaintiff faced discipline for conduct that he alleges was directly
caused by his disability and was exacerbated defendants' discriminatory and
retaliatory actions.
We also find that Beasley does not support the trial court's determination.
In Beasley, we remanded for a new trial because of an evidential issue and did
not make a determination as to whether the disciplinary actions faced by the
employee constituted retaliation under CEPA. 377 N.J. Super. at 604-05. Thus,
although we cited favorably to Hancock and Esposito, we did not determinate
that the employee was barred from advancing on a CEPA claim based on
substantiated discipline from his employer.
On the limited record of this case, we conclude that the trial court erred in
concluding that plaintiff's retaliation claim failed as matter of law. To be sure,
"filing a complaint . . . does not insulate the complaining employee from
discharge or other disciplinary action for reasons unrelated to the complaint."
Higgins v. Pascack Valley Hosp., 158 N.J. 404, 424 (1999). Given the particular
facts of this case, however, with further discovery plaintiff may be able to
A-0086-17T4
37
present evidence to support that his termination was actually retaliation for
plaintiff filing EEO complaints and was not solely due to his absences.
For example, plaintiff may obtain evidence in discovery supporting that
DHS applied its attendance policy more stringently to Hispanic employees or
employees suffering from protected disabilities. See Jason v. Showboat Hotel
& Casino, 329 N.J. Super. 295, 305 (App. Div. 2000) ("A disparate treatment
claim with regard to discipline requires comparison between the defendant's
conduct toward plaintiff and other members of the protected class on one hand,
and similarly situated employees not within the protected class on the other.").
For these reasons, we conclude that the trial court erred in holding that
plaintiff's retaliation claim failed as a matter of law because plaintiff cannot
challenge substantiated discipline as retaliation
Hostile Work Environment (count five)
Plaintiff argues that the trial court erred in concluding that plaintiff's
allegations were insufficient to constitute a hostile work environment as a matter
of law under the standards articulated in Lehmann v. Toys R Us, Inc., 132 N.J.
587 (1993).6 We find that the trial court erred in this determination.
6
The trial court's opinion addressed plaintiff's hostile work environment claim
under CEPA, but the same analysis is applicable under the LAD or CEPA. See
A-0086-17T4
38
A hostile-work-environment claim under the LAD requires, among other
elements, that "(3) [a] reasonable [plaintiff would] believe that (4) the conditions
of employment are altered and the working environment is hostile or abusive."
Lehman, 132 N.J. at 603-04. Whether the conduct alleged is severe and
pervasive enough to alter the conditions of employment is judged according to
an objective standard. Cutler v. Dorn, 196 N.J. 419, 431 (2008).
The determination of whether conduct rises to the level of a hostile work
environment is based on "the totality of the circumstances." Ibid. These
circumstances include "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). "Rather
than considering each incident in isolation, courts must consider the cumulative
effect of the various incidents[.]" Lehmann, 132 N.J. at 607.
In this case, plaintiff alleges that defendants created a hostile work
environment by: (1) refusing to provide him with a temporary employee to assist
with clerical work and necessary equipment to adequately perform his job
Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 386-87 (Law. Div.
2002), aff'd sub nom. 362 N.J. Super. 245 (App. Div. 2003).
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39
responsibilities while other similar situated employees received such assistance
and equipment; (2) verbally harassing and embarrassing him in front of his
coworkers; (3) requiring him to fill out daily time sheets while other similarly
situated employees were only required to fill out bi-weekly time sheets; (4)
suspending and disciplining him for his absences due to his protected
disabilities; (5) denying plaintiff's request to transfer to another facility; and (6)
removing him from his office at GRBC and relocating his work area to a storage
closet.
While some of these allegations standing alone may be insufficient to
support a claim of a hostile work environment, we find that these allegations
taken together raise a factual dispute as to whether plaintiff can establish a
hostile work environment with further discovery. See Cutler, 196 N.J. at 432("Viewing incidents solely in isolation fails to account for the cumulative and
debilitating effect that harassing conduct can have in the workplace."); Shepherd
v. Hunterdon Developmental Ctr., 174 N.J. 1, 26 (2002) ("Viewed cumulatively,
however, the acts alleged by plaintiffs are sufficient to present a hostile work
environment claim to a jury.").
A-0086-17T4
40
Therefore, we find that the trial court erred in determining as a matter of
law that none of the actions alleged by plaintiff rose to the level of a hostile
work environment.
E.
We next turn to plaintiff's Pierce claim. Under Pierce, "an employee has
a cause of action for wrongful discharge when the discharge is contrary to a
clear mandate of public policy." 84 N.J. at 72. "The sources of public policy
include legislation; administrative rules, regulations or decisions; and judicial
decisions. In certain instances, a professional code of ethics may contain an
expression of public policy." Ibid. The trial court concluded that plaintiff's
Pierce claim failed because there was no public policy violated by his
termination for excessive absenteeism and because single complaint about
overtime pay for one Hispanic employee was insufficient to constitute a
violation of public policy.
For the reasons discussed above with respect to plaintiff's LAD claims,
we find that there are genuine disputes of material fact as to plaintiffs absences
and defendants' responses to plaintiff's objections of discriminatory practices.
On the limited record before use, we are unable to conclude that no reasonable
jury could find that defendants terminated plaintiff in retaliation for him
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41
objecting to discriminatory practices. Therefore, we reverse the trial court's
grant of summary judgment and dismissing plaintiff's Pierce claim.
F.
We next address plaintiff's CEPA claims (counts one and two). Plaintiff
argues that the trial court erred in finding that there was an implicit requirement
that a plaintiff is performing the essential functions of his job in order to advance
a CEPA claim. Additionally, he argues that the trial court erred in finding that
he could not establish the defendants retaliated against him or created a hostile
work environment as a matter of law. We agree that the trial court improvidently
granted summary judgment as to plaintiff's CEPA claims.
The prima facie elements of a CEPA claim are:
(1) [the employee] reasonably believed that his or her
employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she performed a
"whistle-blowing" activity described in N.J.S.A. 34:19-
3(c); (3) an adverse employment action was taken
against him or her [or a hostile work environment was
created]; and (4) a causal connection exists between the
whistle-blowing activity and the adverse employment
action.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
Initially, we find that the trial court did not err in finding that there is an
implicit requirement that an employee be performing the essential functions of
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42
his job in order to advance a CEPA claim. Such a requirement indeed appears
to be implicit in the fourth prima facie element, because there would be no causal
connection between a termination and whistle-blowing if a plaintiff were
terminated because he or she could not perform the essential functions of the
position. However, as discussed above with respect to plaintiff's LAD claims,
plaintiff raises a factual dispute as to whether he could perform the essential
functions of his position with reasonable accommodations.
Similarly, we conclude that plaintiff has raised a factual dispute as to
whether there is a sufficient casual connection between his whistle-blowing and
his termination. The McDonnell Douglas burden shifting analysis is applicable
in CEPA cases. See Massarano v. New Jersey Transit, 400 N.J. Super. 474, 492
(App. Div. 2008). As discussed above with respect to plaintiff's LAD retaliation
claim, plaintiff may be able to present evidence to support that his termination
was actually retaliation for plaintiff filing EEO complaints, not as discipline for
his poor attendance.
Additionally, for the reasons discussed above with respect to plaintiff's
hostile-work-environment claim under the LAD, we conclude that plaintiff
raises a factual dispute as to whether defendants' actions rose to the level of a
hostile work environment.
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43
For these reasons, we conclude that the trial court erred in finding that
plaintiff's CEPA claims failed as a matter of law. 7
G.
We finally conclude that the trial court erred by dismissing plaintiff's
respondeat superior and punitive damage claims (counts ten and eleven) on
summary judgment.
Respondeat superior liability is available both under the LAD and CEPA.
Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 421 (1994) (CEPA);
Lehmann, 132 N.J. at 624 (LAD). The Court has delineated the following
framework for determining the liability of employers of the actions of their
employees:
First, strict liability should apply for relief that is
equitable in nature. Second, agency principles, which
7
We note that the parties have not raised the issue of CEPA's waiver position,
which provides, "the institution of an action in accordance with this act shall be
deemed a waiver of the rights and remedies available under any other contract,
collective bargaining agreement, State law, rule or regulation or under the
common law." N.J.S.A. 34:19-8. "By pursuing a CEPA claim, a plaintiff
waives any alternative remedy that would otherwise have been available for the
same retaliatory conduct, although not at the expense of pursuing other causes
of action that are substantially independent of the CEPA claim." Battaglia v.
United Parcel Serv., Inc., 214 N.J. 518, 556 n. 9 (2013) (citing Tartaglia v. UBS
PaineWebber, Inc., 197 N.J. 81, 103 (2008)). We have interpreted the waiver
provision as requiring a plaintiff to elect remedies after completing discovery
and gaining access to all the facts. Maw v. Advanced Clinical Comms., 359 N.J.
Super. 420, 441 (App. Div. 2003), rev'd on other grounds, 179 N.J. 439 (2004).
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44
include negligence, should be applied to decide if an
employer is liable for compensatory damages that
exceed that equitable relief. Third, a higher level of
culpability than mere negligence should be required for
punitive damages.
[Lehmann, 132 N.J. at 626.]
The LAD and CEPA also both permit an award of punitive damages
against public entities. See Green v. Jersey City Bd. of Educ., 177 N.J. 434,
443-46 (2003) (CEPA); Lehmann, 132 N.J. at 624-25 (LAD). To obtain punitive
damages against a public entity for a claim brought under either statute, a
plaintiff must prove the statutory requirements of the Punitive Damages Act ,
N.J.S.A. 2A:15-5.9 to -5.17, and also prove "actual participation by upper
management or willful indifference." Lehmann, 132 N.J. at 625; see also Green,
177 N.J. at 444-45.
In this case, we find that with further discovery as to the actions of each
defendant in response to plaintiff's discrimination complaints and requests for
accommodations, plaintiff may be able to establish the elements of these claims.
Therefore, we reverse the trial court's grant of summary judgment and dismissal
with prejudice of counts ten and eleven of plaintiff's complaint.
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45
H.
For the reasons set forth above, we reverse the trial court's grant of
summary judgment and dismissal of plaintiff's complaint, and remand for further
proceedings. To the extent we have not specifically addressed any issues raised
by the parties, we find them to be without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
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