NJSCT Eases Burden for Whistleblowers Seeking Economic Damages
June 13, 2011
On June 9, 2011, the New Jersey Supreme Court issued its decision in Donaldson, et al v. DuPont Chambers Works. This decision, issued by a four-two majority (with Justice Rivera-Soto abstaining), significantly eases the burden for employees seeking front and back pay damages under the New Jersey’s Conscientious Protection Act (CEPA).
The Donaldson case involved the plaintiff who allegedly suffered retaliation after complaining about alleged safety violations in the workplace. The alleged reprisals included false accusations of misconduct, negative performance reviews, unwarranted suspensions, pretextual mental health evaluation, and the assignment of plaintiff to a twelve-hour shift that he was required to work by himself, (which the plaintiff described as a form of “torture”). The plaintiff presented expert testimony that these alleged acts of reprisal caused him to suffer a mental breakdown, rendering him unfit for continued employment and eligible for disability retirement. However, the plaintiff did not establish that his work environment had become so hostile and abusive that a reasonable person would see no alternative but to quit – – the standard for a so-called “constructive discharge.”
The Appellate Division had held that a CEPA plaintiff could not claim front or back pay in a non-termination case unless he or she could demonstrate a constructive discharge. The Supreme Court reversed. The majority held that proof of constructive discharge was not necessary when a CEPA plaintiff could show that the employer’s retaliatory action “proximately caused” the plaintiff “to suffer a mental injury incapacitating him from his former employment.” In reaching this conclusion, the majority reasoned that a CEPA plaintiff is statutorily entitled to all remedies available in common law tort actions.
The dissenting Justices argued that a CEPA plaintiff should be permitted to recover front and back pay only in cases of actual or constructive discharge. A “constructive” discharge occurs when one’s objective working conditions become so intolerable that a reasonable person would see no alternative to quitting. Because such a case was not presented the facts before the court, the dissent would have denied the plaintiff back and front pay.
The Donaldson case allows CEPA plaintiffs to claim back pay and front pay damages whenever they are able to persuade the jury that workplace retaliation rendered them psychologically unfit for work. It is yet another decision in favor of plaintiffs that only adds the burden of litigation facing New Jersey employers.