March 23, 2004
VICTOR HERNANDEZ, PLAINTIFF-RESPONDENT,
MONTVILLE TOWNSHIP BOARD OF EDUCATION, DEFENDANT-APPELLANT.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 354 N.J. Super. 467 (2002).
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).
(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 responses by employees to occasional operational problems do not constitute the type of "activity, policy or practice" actionable under CEPA.
JUSTICES LONG, ZAZZALI, ALBIN and JUDGE CONLEY, temporarily assigned, join in the PER CURIAM opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE VERNIERO join. JUSTICE WALLACE did not participate.
Argued October 7, 2003
The judgment is affirmed, substantially for the reasons expressed in Judge Axelrad's opinion for the Appellate Division, reported at 354 N.J. Super. 467 (2002).
JUSTICES LONG, ZAZZALI, and ALBIN and JUDGE CONLEY, temporarily assigned, join in the Court's opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE VERNIERO join. JUSTICE WALLACE did not participate.
JUSTICE LaVECCHIA, dissenting.
When the Conscientious Employment Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA), was signed into law, Governor Kean emphasized the statute's purpose to facilitate the exposure of "illegal activities" of employers. Office of Governor Kean, News Release at 1 (Sept. 8, 1986). In pertinent part, CEPA protects a whistle-blowing employee from "retaliatory action" by an employer when that employee "discloses, or threatens to disclose... an activity, policy or practice of the employer... that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law." N.J.S.A. 34:19-3a; see also N.J.S.A. 34:19-2e (defining "retaliatory action"). In Section 3a, the Legislature carefully sought to balance the rights of both employers and employees on matters that concern the way in which an entity carries out its business. The language of the provision does not suggest an intent to allow a CEPA cause of action for every employee who differs with an employer over the conduct of business on a day to-day basis within the bounds set by law. The question then is whether plaintiff has alleged a claim that meets the threshold established by the Legislature in CEPA.
The facts adduced at trial may be summarized briefly. After a one-month probationary period, the Board hired plaintiff as a full-time night custodian in January 1997. Allowing plaintiff the full benefit of his proofs, it appears that during his probation he began noticing problems at the buildings he was assigned to clean. Specifically, he observed that a clogged toilet and a missing light in an exit sign were not remedied for approximately one week. Plaintiff believed that those problems might be safety or health hazards.*fn1 He apprised his immediate supervisors of his concerns and attempted to speak directly to the Superintendent of Schools. At about the same time, plaintiff's supervisors were criticizing plaintiff's work performance in internal memoranda shared with plaintiff, including that he was "engaging in lengthy personal phone calls while on duty, not arriving on time, [sic] theft of services, and not following the chain of command." Hernandez v. Montville Township Bd. of Educ., 354 N.J. Super. 467, 471 (App. Div. 2002). On March 18, 2003, the Board terminated plaintiff, citing the unsatisfactory performance citations he had accumulated.
Plaintiff filed this complaint alleging wrongful termination, contending initially that the Board's action violated N.J.S.A. 34:19-3a and -3c, respectively.*fn2 In pre-trial rulings, the trial court effectively dismissed the Section 3c claim from the action and the parties have not disputed that determination.*fn3 After the jury returned a verdict for plaintiff, the trial court granted the Board's motion for judgment notwithstanding verdict (JNOV), observing that it never should have let the case go to the jury in the first instance. See R. 4:40-2.
The Appellate Division reversed, reinstated the jury's verdict in favor of plaintiff, and remanded the matter for consideration of punitive damages, interest, and attorney's fees. Hernandez, supra, 354 N.J. Super. at 477. A majority of this Court now affirms. I must respectfully disagree because I believe that the trial court correctly concluded that plaintiff's claim does not state the type of employee complaint that the Legislature ever intended to be cognizable under CEPA.
Section 3a prohibits retaliation against an employee who takes action in respect of "an activity, policy or practice" of the employer that the employee reasonably believes is contrary to law, rule, or regulation. N.J.S.A. 34:19-3a (emphasis added). Those words derive meaning from their textual association. See Gilhooley v. County of Union, 164 N.J. 533, 542 (2000) (noting that meaning of words in statute informed by words that accompany them). In context, the words included in the phrase "activity, policy or practice" connote ongoing, ubiquitous conduct, stitched together by a common directive or purpose, and not idiosyncratic responses to discrete maintenance problems. Plaintiff has not "disclosed" any sort of Board activity, policy, or practice discouraging the unclogging of clogged of toilets or preventing the purchase and distribution of working light bulbs for exit signs. He did not "blow the whistle" on an "activity, policy or practice." Moreover, a Section 3a whistle-blowing employee must disclose "an activity, policy or practice of the employer," not merely "any activity, policy or practice." Compare N.J.S.A. 34:19-3a (emphasis added), with N.J.S.A. 34:19-3c (emphasis added); see generally Higgins v. Pascack Valley Hosp., 158 N.J. 404, 419 (1999) (remarking on construction to be attributed to Legislature's choice of term "any" in Section 3c, but not 3a, and "omission of the phrase 'of the employer'" in Section 3c). Plaintiff may have observed incidents of lack of diligence on the part of certain maintenance employees when responding to operational problems concerning toilets. However, even if the person or persons did not repair or restore operation of the clogged toilet as quickly as plaintiff believed possible or preferable, that dereliction does not equate to an "activity, policy or practice" "of the employer."
Further, to trigger CEPA protection under Section 3a, an employee must disclose "an activity, policy or practice... that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law." N.J.S.A. 34:19-3a (emphasis added). Much of plaintiff's concern focused on the speed (or alleged lack thereof) with which the Board's employees addressed the maintenance issues he raised, and the Board's purported failure to schedule a meeting with plaintiff in a timely fashion. See Hernandez, supra, 354 N.J. Super. at 471, 475 (describing plaintiff's "attempts to bring [his concerns] to the attention of [the Board's] representatives" and "frustrat[ion] with maintenance's lack of response"). However, plaintiff has pointed to no law, regulation, or rule making it illegal for the Board not to address plaintiff's concerns as quickly as he would have liked.
Put simply, plaintiff's criticism of the timeliness of "maintenance's response" to occasional operational problems posed by toilets that clogged or 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 plaintiff immune from termination due to the Board's dissatisfaction with plaintiff's work performance. In that last respect, I cannot help but note that it was plaintiff's responsibility to clean the restrooms. His complaints about clogged toilets soiling the nearby floor of the restroom (however distasteful it is to contemplate such a circumstance in a school) is a complaint about a matter that lay within his own area of responsibility.
In summary, although plaintiff's desire for a more prompt response to the specific maintenance problems he encountered may have been admirable, he has failed to plead a cause of action under CEPA. Idiosyncratic responses by other employees to occasional operational problems do not constitute the type of illegal "activity, policy or practice" rendered actionable under N.J.S.A. 34:19-3a. We expect our trial courts to be gatekeepers to prevent the expenditure of time and resources on claims that do not raise a cognizable cause of action. The trial court's instincts were correct here. This matter should not have gone to the jury. The grant of JNOV to defendants should not be reversed, and plaintiff should not be allowed to return to the trial court to seek punitive damages, interest, and attorney's fees.
I respectfully dissent.
CHIEF JUSTICE PORITZ and JUSTICE VERNIERO join in this opinion.
Chief Justice Poritz PRESIDING
DISSENTING OPINION BY Justice LaVecchia