On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-11545-96.
Judges Stern, A. A. Rodriguez and Fall.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 28, 2000
Plaintiff Alexis Daniels sued her employer, The Mutual Life Insurance Company (MONY), and several of its upper-management employees, alleging a constructive termination of employment in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. This appeal concerns solely the dismissal of the CEPA claim. The issue presented is whether the one-year statute of limitation set by N.J.S.A. 34:19-5 commences to run on the date Daniels tendered her resignation or on the last day of actual employment. We hold that in a constructive discharge situation, the period of limitations begins to run on the date that the resignation is tendered. This holding is consistent with our opinions in Keelan v. Bell Communications Research, 289 N.J. Super. 531, 540-41 (App. Div. 1996) (holding that, in an actual discharge situation, the period of limitations runs from the last day of employment), and Holmin v. TRW, Inc., 330 N.J. Super. 30, 46 (App. Div.), certif. granted, 165 N.J. 531 (2000) (holding that, in an actual discharge situation, limitations period for fraudulent inducement cause of action began to run on last day of actual employment rather than on date employee was notified he was to be terminated).
Daniels asserts that she was employed by MONY from December 1980 until December 8, 1995. She first worked as Video Manager. In August 1986, she was promoted to Director of Programs and Production, a senior management position. Among her duties, Daniels was responsible for reviewing and approving invoices for expenditures. In June 1994, Daniels became aware that certain senior managers, including the President (Samuel Foti) and two Senior Vice Presidents (Richard Connors and Thomas Conklin), were using an audio visual consultant (Steven Peloquin) retained by MONY to perform personal services. The costs for such services were charged to MONY. Daniels believed that these actions were illegal and/or against public policy. She reported these actions, questioned her superiors as to their propriety, and met with other members of MONY's upper management, including the Chairman of the Board/Chief Executive Officer, Michael Roth.
Daniels alleges that as a direct result of her actions, she was isolated, intimidated, harassed and ostracized by some of her superiors. Her support staff was reduced while her performance demands increased. She was faced with a hostile work environment and perceived that her authority was compromised. According to her, Steven Huben was hired to work in her department without her consent. Daniels alleges that "Huben was hired to intimidate and harass [her] and cause her emotional harm and distress." This inflicted severe anxiety and depression for which she sought therapy. Eventually, these retaliatory actions caused Daniels to tender her oral resignation to Connors on December 4, 1995 effective immediately.
Connors' response was to ask "what could be done?" to get her to stay. He implored her to continue working at least until the end of that week because the department was short-handed and important projects were incomplete. Daniels acceded to stay through the end of the week. She submitted a resignation letter dated December 4, 1995, stating that her last work day would be December 8, 1995. She ceased her employment on that day.
On December 9, 1996, one year and four days after the date of her letter of resignation, but one year from her last day of work*fn1, Daniels filed the present suit against MONY, Connors, Conklin, Foti, Peloquin, Roth and Huben. She alleged that MONY had engaged in retaliatory actions against her, had created a hostile work environment on the basis of her gender and had constructively terminated her. MONY moved for partial summary judgment, seeking to dismiss the CEPA claim because it was time-barred. Daniels opposed the motion, asserting that the complaint had been timely filed within one year of her last day of work.
Judge Daniel Mecca granted MONY's motion and dismissed the CEPA claim. He supplemented his opinion from the bench with a written opinion. Judge Mecca reasoned that Daniels herself "declared that her working conditions had become so intolerable that she was forced to resign." Therefore, he concluded that at the very latest the retaliatory action "had necessarily occurred by the date she tendered her resignation." Because she filed her complaint more than a year from this date, her CEPA claim was time-barred.
Daniels moved for leave to appeal. We denied her application.*fn2 Thereafter, the parties consented to an order dismissing the remaining two counts in the complaint. This resulted in a final judgment.
Daniels now appeals contending that: (1) the trial court erred in its application of Keelan v. Bell Communications Research, 289 N.J. Super. 531 (App. Div. 1996); (2) CEPA is a remedial statute that must be liberally construed and it requires a completed action, i.e. separation from employment; and (3) "the Court should further support the goal of communication in the employment relationship and not penalize the employee who issues notice of resignation with a shorter statute of limitations." In her reply brief, Daniels also contends that ...