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Green v. Jersey City Board of Education

August 11, 2003

DORIS GREEN, PLAINTIFF-RESPONDENT,
v.
JERSEY CITY BOARD OF EDUCATION, A BODY CORPORATE AND POLITIC, DEFENDANT-APPELLANT, AND CASSANDRA WIGGINS, INDIVIDUALLY, SHERYL SULLIVAN, INDIVIDUALLY AND FRANK PICCILLO, INDIVIDUALLY, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

Justices Coleman, Long and Zazzali join in Chief Justice PORITZ's opinion. Justices Verniero, LaVECCHIA, and Albin have filed a separate, dissenting opinion.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

PORITZ, C.J., writing for the Court.

In this case, the Court confronts once again the question whether the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, permits an award of punitive damages against a public entity.

Doris Green was a science teacher in the Jersey City Public School system for the thirty-year period from 1967 to 1997. In 1994, she sought and obtained an assignment to Public School 22 because of the teacher programs offered there. Green participated in training seminars and other non-classroom activities, including workshops in mediating student disputes and increasing student interest in scholarships. She also attended a summer program at Stevens Institute of Technology, for which she received no compensation but which resulted in a $1,000 grant of computers and materials to her classroom.

According to Green, she was asked in May of 1995 by her supervisor and principal, Cassandra Wiggins, to expect a check for more than $500 on behalf of another employee. Wiggins explained that the other teacher had supervised an after-school program for which he did not have adequate credentials. Wiggins had submitted Green's name and credentials to the District and was asking Green to give the money to Wiggins when she received the check so that Wiggins could, in turn, ensure the other teacher was compensated. Green refused to participate in the scheme because she believed it to be fraudulent or illegal. Green presumed the matter was closed.

Two months later, Green received a check for $543.63 that she deposited in her bank account believing it to be payment for her participation in a mediation program. It was not until Wiggins telephoned Green at home in July asking whether Green had received the check and demanding payment that Green realized the check she had deposited was not money she had earned. Green brought the matter to the attention of the Vice Principal and then to Lorraine Casey Church, the payroll supervisor for the Jersey City Board of Education. Church advised Green to send a check to the Board enclosing a letter of explanation and to have Wiggins call her.

Green followed Church's instructions. Subsequently, Church returned the check to Green with a note informing her that Wiggins had authorized Green's receipt of a portion of the money and that the difference would be taken out of Green's next paycheck. Green kept the remainder of the money, again believing that it was for the mediation program.

When the school year started the following September, Wiggins informed Green that she was very angry with her for reporting the incident to Church, and that Green would no longer be able to participate in the Stevens Institute program or the student mediation program. Green was told she was on Wiggins's "shit list" and that any requests Green made for additional programs or training would be denied. A host of other retaliatory acts followed, including: Green was given substandard evaluations even though her previous evaluations had been consistently satisfactory; she was moved to a dilapidated classroom with inadequate furniture; and she was denied a key to the science lab. In addition, Green's class was treated unfairly. Her students were no longer allowed to participate in opening exercises, an honor roll ceremony, or field trips. These incidents continued throughout two school years, from September 1995 to spring of 1997.

Green left her teaching position in May 1997 and went on medical leave as a result of severe headaches and other physical symptoms. Her psychiatrist diagnosed her with a major depressive disorder, finding a causal relationship between her work situation and her illness. Green has never returned to teaching.

On May 14, 1997, Green filed suit against the Jersey City Board of Education and several individual defendants, including Cassandra Wiggins, alleging defendants had engaged in "continuous and increased forms of harassment" dating back to July 23, 1995. She contended defendants' behavior caused her loss of employment and that their harassing conduct amounted to a violation of her rights under CEPA. Defendants countered that Green's claims were barred by the Tort Claims Act (TCA) and the one-year statute of limitations of CEPA.

The case was tried before a jury in February 2000. After both sides had concluded, but before the jury rendered a verdict, the trial judge dismissed both individual defendants and plaintiff's common law claims. On the CEPA claim, however, the jury returned a verdict against the Jersey City School Board, awarding plaintiff $265,000 in compensatory damages and $300,000 in punitive damages. The trial judge imposed prejudgment interest on both awards.

On appeal, the Jersey City Board of Education argued, among other things, that the TCA bars punitive damages in CEPA claims and that prejudgment interest is not allowable on punitive damages. In an unpublished opinion, the Appellate Division affirmed the jury verdict, but reversed the award of prejudgment interest on punitive damages. The Supreme Court granted the Jersey City Board of Education's petition for certification.

HELD Punitive damages may be awarded under CEPA against public entity defendants in appropriate cases. The CEPA one-year statute of limitations begins to run from the final action of retaliation.

1. The Legislature enacted CEPA to protect employees who report illegal or unethical work-place activities. In Abbamont v. Piscataway Bd. of Educ., 138 N.J. 405 (1994) (Abbamont I), this Court was evenly divided on the question whether punitive damages are available in a CEPA action brought against a public body. CEPA defines employers to include governmental entities and specifically permits a court to award punitive damages. The justices concurring in the judgment of the Appellate Division cited to these provisions, explaining that the Legislature easily could have exempted government entities from CEPA's punitive damages provision had it wished to do so. They also compared CEPA to the Law Against Discrimination (LAD), finding support for punitive damages against public sector defendants in the unique legislative purpose of the two statutes. Most important, the concurring justices turned to the heightened standard the Court had adopted for imposing punitive damages against public entities, which require willful indifference or actual participation by upper management. In Lockley v. Dept. of Corrections, __ N.J. __ (2003), also decided today, the Court emphasized the importance of that heightened standard when considering whether an award of punitive damages is warranted in the first instance. Since the opinion of Abbamont I nine years ago, the Court has repeatedly requested the Legislature to take up the issue of punitive damages against public entities if it deems the Court's interpretation mistaken. The Legislature has not acted. The Court can only assume from that silence that it intended to subject public entities to punitive damages under CEPA. (pp. 7-15)

2. The Jersey City Board of Education also asserts that because the retaliatory conduct began in September 1995, and Green's complaint was filed on May 14, 1997, her lawsuit is barred by the one-year statute of limitations. This Court has held that under the LAD, where an individual is subject to a continual pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases. The policy concerns underpinning that determination in respect of LAD claims require the application of the same framework in CEPA claims. Adverse employment action taken against an employee can include, as it did in this case, many separate instances of behavior. Because the acts of retaliation against Green continued until she resigned her teaching position in May 1997, and because Green filed her lawsuit on May 14, 1997, CEPA's one-year statute of limitations does not bar her claim. (pp. 15-19)

Judgment of the Appellate Division is AFFIRMED.

JUSTICES VERNIERO, LaVECCHIA, and ALBIN filed a separate, dissenting opinion, expressing the view that the State's presumptive immunity from punitive damage awards can be breached only by a clear and unmistakable pronouncement by the Legislature. Such a pronouncement is not found in CEPA.

The opinion of the court was delivered by: Poritz, C.J.

Argued January 6, 2003

In this case, the Court confronts once again the question whether the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, permits an award of punitive damages against a public entity. See Abbamont v. Piscataway Bd. of Educ., 138 N.J. 405 (1994) (Abbamont I), appeal after remand, 314 N.J. Super. 293 (App. Div. 1998), aff'd, 163 N.J. 14 (1999).

We hold today that punitive damages may be awarded under CEPA against public entity defendants in appropriate cases. We also hold that the CEPA one-year statute of limitations, N.J.S.A. 34:19-5, begins to run from the final act of retaliation when there is a continued course of retaliatory conduct by the employer.

I.

Plaintiff Doris Green was a science teacher in the Jersey City Public School system for the thirty-year period from 1967 to 1997. In 1994, she sought and obtained an assignment to Public School 22 because of the teacher programs offered there. At Public School 22, Green participated in training seminars and other non-classroom activities, including workshops in mediating student disputes and increasing student interest in scholarships. She also attended a summer teachers' program at the Stevens Institute of Technology in Hoboken ...


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