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Keelan v. Bell Communications Research

April 11, 1996

JAMES G. KEELAN, PLAINTIFF-APPELLANT,
v.
BELL COMMUNICATIONS RESEARCH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication April 11, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by

KLEINER, J.A.D.

This appeal involves two issues: (1) when does the statute of limitations commence to bar a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and (2) when is a release of such a claim valid.

Plaintiff James G. Keelan filed a complaint under CEPA on November 30, 1994. Plaintiff and 750 other workers received written notification on September 23, 1992 that their employer, defendant Bell Communications Research, Inc., intended to implement a "force adjustment" effective December 2, 1992, and that their employment with defendant would terminate on that date.

With his notice of termination, plaintiff received a proposed form of release. He was advised that in exchange for an executed release, he would receive a termination allowance of $41,000 less appropriate deductions, six months of paid medical benefits, and outplacement services to assist him in locating new employment. Plaintiff was specifically advised, "If you are eligible, you will receive your service pension regardless of whether you sign the Release Agreement or not." Plaintiff executed the release on November 2, 1992. Thereafter, he received his termination allowance.

Plaintiff's complaint alleged that he was included in the group of employees being terminated because he had conscientiously opposed defendant's failure to protect the safety and health of employees working in one of defendant's facilities from the hazards of poisonous gases used in a research laboratory and for raising other safety-related issues. Defendant moved for summary judgment, contending that plaintiff's claim under CEPA was untimely filed and, alternatively, that plaintiff was not entitled to damages because he had executed a general release. Plaintiff cross-moved for partial summary judgment, contending that the release contravenes public policy and is unenforceable as a matter of law.

The motion Judge denied plaintiff's cross-motion and granted summary judgment to defendant. The Judge concluded that the one-year limitations period of N.J.S.A. 34:19-5 commenced September 23, 1992, when plaintiff was notified of his impending employment termination. Plaintiff's complaint, filed November 30, 1993, was consequently deemed barred by the statute of limitations. The Judge, relying upon our decision in Swarts v. The Sherwin-Williams Co., 244 N.J. Super. 170, 581 A.2d 1328 (App. Div. 1990), alternatively concluded that the release was voluntarily executed and also barred plaintiff's claim.

Plaintiff appeals both Conclusions of the motion Judge. We find that the one-year limitations period under N.J.S.A. 34:19-5 commenced to run on December 3, 1992, when plaintiff's employment with defendant ceased, and that plaintiff's complaint therefore was filed timely. We also conclude that genuine material issues exist as to the voluntariness of the release. Those issues precluded a grant of summary judgment. See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523, 666 A.2d 146 (1995); Rosenberg v. Rosenberg, 286 N.J. Super. 58, 68, 668 A.2d 84 (App. Div. 1995).

I

Plaintiff was employed as Staff Manager for Environmental Health and Safety for defendant. In this capacity, he was responsible primarily for safety and health at the Building III site at Navesink. From 1985 to 1992, plaintiff pressed his superiors to address and correct safety concerns pertaining to the use of toxic gases in Building III.

In late 1991, an outside consultant found that "highly toxic, poisonous and unstable gases are being used in Building III and the areas are not protected in accordance with the high hazard criteria. Table 306.2.1 specifically prohibits use of poisonous gases except in high hazard areas."

In early 1992, defendant's Director issued an annual job-performance evaluation ranking plaintiff as "needing improvement" on 10 out of 13 measures of "team work." In response to this unfavorable evaluation, plaintiff filed a whistleblower complaint (a complaint under the Conscientious Employee Protection Act) with defendant's Manager of Corporate Security, alleging that he was being harassed because of his safety work. Plaintiff alleged that for the next several months, defendant's internal process for resolving his whistleblower complaint "whitewashed the misconduct by defendant's mismanagement." In May 1992, plaintiff and the Director reached an agreement under which plaintiff refrained from further pursuing his internal CEPA claim. In return, the Director agreed they would work together constructively to resolve any future safety concerns on plaintiff's part.

Later in 1992, Bell conducted a major force reduction. On September 23, 1992, plaintiff was notified both orally and in writing that his job would be eliminated effective December 2, 1992. The notice also informed plaintiff that he could apply for termination benefits consisting of a termination allowance of $41,000 less appropriate deductions, six months' company-paid medical benefits, and outplacement services (force adjustment benefits) to help him locate new employment. The notice specified that to be eligible for termination benefits, plaintiff had to sign and return the release agreement attached to the notification. Defendant contends that the written notification made clear that termination benefits were not an entitlement but constituted new and separate consideration. The notification stated, "If you are eligible, you will receive your service pension regardless of whether you sign the Release Agreement."

Plaintiff charges that his inclusion in the force reduction was merely a pretext giving defendant the chance to terminate his employment. Plaintiff stated, "The only reason I could see why I was selected for termination was to retaliate against me for voicing my safety concerns." Plaintiff also contends that he told several co-employees that he was being terminated in retaliation for conscientiously opposing unsafe practices. Shortly thereafter, he claims that he was threatened with immediate discharge if he was not quiet. Plaintiff also claims that he tried to appeal defendant's termination decision but was told that no internal company appeal was possible.

Plaintiff discovered that the release form which was provided to him was incomplete, as the second page, which required his signature, was missing. At plaintiff's request, he was provided with a second page but was given only seven days to sign it. Defendant claims that plaintiff signed the release the same day he received the missing second page. Thereafter, plaintiff received the promised severance package and his employment terminated. On November 30, 1993, plaintiff filed his complaint.

II

The CEPA provides in pertinent part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer or another employer with whom there is a business relationship; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or ...


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