On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Passaic County.
Approved for Publication December 3, 1997.
Before Judges Havey, Brochin and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by
Plaintiff appeals on leave granted from the trial court's order dismissing three counts of her amended complaint asserting causes of action for wrongful discharge and assault and battery. We affirm in part and reverse in part.
On August 24, 1994, plaintiff was discharged from her employment as an activities assistant at defendant Oakland Care Center (Center). Defendant Laura Allen, the recreation director of the Center, was plaintiff's immediate supervisor. Defendant Susan Grosser was the administrator of the Center.
The complaint, as initially filed on March 19, 1996, was in five counts. The first count asserted a cause of action for wrongful discharge arising from the statute establishing the Office of the Ombudsman for the Institutionalized Elderly (Ombudsman Act or Act), N.J.S.A. 52:27G-1 to -31, specifically N.J.S.A. 52:27G-14a. The latter provision prohibits, inter alia, disciplinary or retaliatory action against any employee of a covered facility for reporting violations of the Act's standards, and establishes such disciplinary or retaliatory action to be a crime of the fourth degree. The second count of the complaint pled a cause of action for wrongful discharge pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, which prohibits, inter alia, retaliatory action against an employee for disclosing unlawful activity of the employer. The third count charged that Allen had committed an assault and battery on plaintiff, with resulting injuries, during a confrontation about a report plaintiff was alleged to have made to the Office of the Ombudsman about Allen and the Center. The fourth count asserted vicarious liability on the part of the Center for the conduct attributed to Allen, and repeated the retaliatory discharge cause of action based on N.J.S.A. 52:27G-14a. The fifth count pled a common law action for wrongful discharge.
On July 23, 1996, defendants, without joining issue, filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. R. 4:6-2(e). The motion was returnable on August 9, 1996. The bases of the motion were the one-year statute of limitations in CEPA, N.J.S.A. 34:19-5, the CEPA waiver provision, N.J.S.A. 34:19-8, and the absence of a private cause of action under the Ombudsman Act, N.J.S.A. 52:27G-14a.
On July 31, 1996, plaintiff filed an amended complaint which deleted the second count, the CEPA claim. The remaining four counts of the complaint were renumbered and restated, but were essentially unaltered.
After oral argument of the motion, the trial court dismissed all counts of the amended complaint except the second, containing the assault and battery cause of action against Allen. In an oral opinion, the motion Judge based her decision upon the CEPA waiver provision:
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.
We hold the application of the foregoing provision to bar plaintiff's common law wrongful discharge cause of action to have been erroneous. The trial court erred, as well, in dismissing plaintiff's vicarious liability claim against the Center, subsumed in the third count of the amended complaint, for the tort allegedly committed by Allen. We conclude, however, for reasons different from those employed by the motion Judge, that the trial court appropriately dismissed the first count of the amended complaint, alleging a cause of action for violating the Ombudsman Act, as well as the portion of the third count which repeated that claim. Hence, we affirm in part and reverse in part, remanding for ...