On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-867-04.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, Lisa and S.L. Reisner.
Plaintiff, Paul Zubrycky, appeals from a trial court order granting defendant's motion to dismiss his complaint filed under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.
Plaintiff worked for defendant, ASA Apple, Inc., a trucking company. His complaint alleged that he initially worked as a driver, a position in which he was entitled to overtime after fifty hours of work, but he transferred into a "yard switcher" position, in which he was entitled to be paid overtime after forty hours per week of work. He alleged that after he became a yard switcher, his employer continued to only pay him overtime for hours in excess of fifty hours per week. Hence, he was being denied overtime for ten hours per week. Plaintiff repeatedly complained about this situation, but his employer refused to pay the overtime. His complaint alleged that at one point his supervisor told him "[i]f you do not like the way things are run around here, then leave." Plaintiff also alleged that his employer promised that if he resigned, they would not contest his unemployment claim. His complaint alleged that he did resign, because of the denial of overtime, but defendant opposed his unemployment claim. Plaintiff's complaint alleged that this set of facts constituted constructive discharge and unlawful retaliation in violation of CEPA. N.J.S.A. 34:19-3(a).
After his resignation, Zubrycky filed a wage and hour claim and the Department of Labor ordered defendant to pay him for the overtime. But at the time plaintiff filed his CEPA complaint in 2004, the Board of Review had denied his unemployment claim. The Board found that plaintiff's expressed reason for resigning (as communicated to his supervisor) was that he was tired of doing everyone else's work, and concluded that if his true reason for resigning was dissatisfaction with the denial of overtime, he should have stayed on the job and filed a wage and hour complaint with the Department of Labor. On February 8, 2005, another panel of this court reversed the determination of the Board of Review and held that plaintiff was entitled to unemployment benefits. Zubrycky v. Board of Review, A-3190-03T2 (App. Div. 2005). Based on the unemployment benefit law, N.J.S.A. 43:21-5(a), which permits an employee to qualify for unemployment benefits if he resigns for good cause attributable to the work, the panel held that the employer's failure to pay Zubrycky overtime constituted good cause for his resignation.
In an oral opinion placed on the record on August 6, 2004, the Law Division dismissed plaintiff's CEPA claim. Judge O'Brien concluded that the failure to pay plaintiff overtime did not rise to the level of a constructive discharge, and defendant's opposition to plaintiff's unemployment claim was not actionable under CEPA because it occurred at a time when he was no longer an employee of defendant.
CEPA prohibits an employer from retaliating against an employee who reports "to a supervisor . . . an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law . . . or regulation." N.J.S.A. 34:19-3(a). Retaliation includes "discharge . . . or other adverse employment action." N.J.S.A. 34:19-2(e). The parties agree that plaintiff's complaint to his supervisor concerning the unlawful denial of overtime constituted protected activity under CEPA. They disagree on whether the employer's conduct violated CEPA.
On this appeal plaintiff contends, as he did in the Law Division, that he was constructively discharged in violation of CEPA. The difficulty with plaintiff's claim is that constructive discharge requires more than proof of an underlying unlawful wage situation. For example, an employee cannot quit a job in which she is being paid less because of her gender and claim constructive discharge solely by virtue of the discriminatory wage differential. Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980). For purposes of the laws against discriminatory or retaliatory discharge, an employee is expected to take all reasonable steps necessary to remain employed. Shepard v. Hunterdon Developmental Center, 174 N.J. 1, 28 (2002). In Shepard, a case filed under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, the Court held that a constructive discharge claim requires even more proof of egregious circumstances than that required to establish a hostile work environment:
In contrast [to a hostile work environment claim], constructive discharge requires not merely "severe or pervasive" conduct, but conduct that is so intolerable that a reasonable person would be ...