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Hernandez v. Montville Township Board of Education

March 23, 2004


On certification to the Superior Court, Appellate Division, whose opinion is reported at 354 N.J. Super. 467 (2002).


(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).

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the opinion below.)

The Court addresses whether the trial court properly granted a judgment notwithstanding the verdict in this CEPA case.

Following a one-month probationary period, Victor Hernandez was hired by the Montville Township Board of Education (Board) as a full-time night custodian at two of the township's elementary schools in January 1997. For twenty years prior to this job, Hernandez had been employed by Consolidated Edison as a custodian and later as a mechanic. During that employment, Hernandez attended OSHA seminars and was trained to identify and report safety hazards within the company. The Board also required Hernandez to attend health and safety meetings. At one meeting, he learned that OSHA regulated the cleanliness of bathrooms and mandated a sanitary environment. Hernandez was also provided a staff handbook, which emphasized the importance of safety at the schools and directed a custodian to assume responsibility for the general safety in the building.

Hernandez began noticing certain safety issues; specifically, a clogged toilet that often overflowed, causing feces and urine to spill out onto the floor; and a fire exit sign that was unlit for seven days because of a burned out bulb. Hernandez believed that those problems might be safety or health hazards. He told several of his immediate supervisors of his concerns and also attempted to speak directly with the Superintendent of Schools. Thereafter, Hernandez claims for the first time to have been criticized in a series of memos for poor work performance, engaging in lengthy personal phone calls while on duty, not arriving on time, theft of services, and not following the chain of command. On March 6, 1997, Hernandez was suspended from his position and on March 18, 1997, he was terminated.

On February 6, 1998, Hernandez filed suit against the Board, alleging he was wrongfully terminated in violation of the Conscientious Employee protection Act (CEPA). Hernandez and his wife, Deborah, who also was employed by the Board as a custodian, testified at trial in respect of Hernandez's complaints and their attempts to bring them to the attention of their superiors. Hernandez also testified about medical and emotional problems he experienced for about three to four months following his termination.

The trial court declined to grant the Board's motion to dismiss at the close of all evidence. In addition, the court ruled that only the issues of the exit sign and the clogged toilets could go to the jury. The jury returned a verdict in favor of Hernandez, awarding $44,000 for wage loss and $150,000 for emotional distress damages. The court declined Hernandez's request to send the issue of punitive damages to the jury, concluding that the facts did not support the imposition of such damages. Thereafter, the Board moved for a judgment notwithstanding the verdict (JNOV), for a new trial, or for remittitur. On September 14, 2001, the court granted the Board's motion for JNOV, stating that it should never have let the case go to the jury in the first place.

Hernandez appealed to the Appellate Division, arguing that the trial court erred in granting the JNOV motion, that it was error to fail to submit the punitive damage issue to the jury, and that, if the jury verdict is reinstated, he is entitled to interest, attorneys fees, and costs. The Appellate Division agreed and reversed the JNOV, reinstated the jury award, and remanded for trial on punitive damages, interest, attorney's fees and costs.

In reaching its determination, the Appellate Division noted that the primary question was whether Hernandez performed whistle-blowing activity by reporting the unsanitary conditions of the bathroom and the broken light in the fire exit sign and was terminated as a result. Because of the procedural posture of the case, the appellate panel had to accept as true the evidence supporting Hernandez's position and give him the benefit of all legitimate inferences that can be reasonably drawn therefrom. Initially, the panel noted that New Jersey's CEPA statute is the most far-reaching whistle-blowing statute in the country and was designed to give broad protections against employer retaliation for employees acting in the public interest. Because the legislation is remedial, it is to be construed liberally to effectuate its important social goal.

The panel concluded that Hernandez met the statutory criteria to maintain a cause of action under CEPA. He established that he reasonably believed the unsanitary conditions of the bathroom and the unlit exit sign violated health and safety rules and regulations and were contrary to a clear mandate of public policy. Moreover, there was ample credible evidence to support the jury's conclusion that Hernandez made his superiors aware of the problems. Further, there is support in the record demonstrating that until he began complaining, Hernandez had a good work record. Finally, there was ample evidence in the record for the jury to conclude that the Board's proffered reason for termination was a pretext and that the whistle-blowing itself was a substantial factor in Hernandez's termination. As such, the panel concluded that the trial court erred in substituting its judgment for that of the jury and reversing the jury's verdict.

In addition, the Appellate Division concluded that the punitive damage claim should have gone to the jury. Hernandez provided sufficient evidence enabling that issue to be submitted to the jury.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Axelrad's opinion below. The trial court erred in granting the Board's motion for JNOV, as there was sufficient credible evidence to support the jury's verdict that Hernandez was wrongfully terminated in violation of CEPA.

JUSTICE LaVECCHIA, dissenting, in which CHIEF JUSTICE PORITZ and JUSTICE VERNIERO join, is of the view that Hernandez's criticism of the timeliness of "maintenance's response" to occasional operational problems posed by toilets that clogged and light bulbs that burned out, or his dissatisfaction with the Superintendent's responsiveness to his request for a meeting, do not support a CEPA claim that rendered Hernandez immune from termination due to the Board's dissatisfaction with his work performance. Idiosyncratic ...

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