On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. 000128-03.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Parrillo and Grall.
On remand from the Supreme Court of New Jersey, Notte v. Merchants Mutual Insurance Company, 185 N.J. 490 (2006).
On remand from the Supreme Court, Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490 (2006), we have been asked to determine whether granting plaintiff's request for leave to amend his complaint to replead his time-barred claims under the Conscientious Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -8, as separate common law and statutory wrongful discharge claims, would be futile on application of CEPA's waiver provision, N.J.S.A. 34:19-8. Notte, supra, 185 N.J. at 503. We now answer in the negative.
The facts may be briefly stated. From October 2000 through March 2001, Theresa Notte was employed by defendant, Merchants Mutual Insurance Company, where she was supervised by defendant, William Wolfe. Over the same period, plaintiff, Robert Pantano (plaintiff), was employed by Merchants as a supervisor. Notte alleged that after she rejected Wolfe's sexual advances, she was subjected to a hostile work environment, sexual discrimination, and retaliation, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, that led to her constructive discharge from employment on March 28, 2001. Pantano alleged that his employment with Merchants was terminated on March 27, 2001, because he objected to Wolfe's harassment of and retaliation against Notte. Notte's and Pantano's allegations were made in a joint complaint that they filed on January 13, 2003, against Merchants and Wolfe.
Specifically, in three separate counts, Notte alleged that Merchants was liable to her for creating a hostile work environment, quid pro quo sexual discrimination, and retaliation, in violation of N.J.S.A. 10:5-12a and 12d, and, in a fourth count, Notte alleged that Wolfe was liable to her under the LAD as aider and abettor, N.J.S.A. 10:5-12e. None of her claims are at issue in this appeal. Pantano, on the other hand, alleged only that his wrongful discharge was in violation of CEPA. Following responsive pleadings and completion of discovery, defendants moved for partial summary judgment on the basis that plaintiff's CEPA claims were time-barred under CEPA's one-year statute of limitations, N.J.S.A. 34:19-5, a fact Pantano conceded. Pantano then sought leave, pursuant to Rule 4:9-1 and Rule 4:9-3, to replead his time-barred CEPA claims as separate common law discharge and LAD retaliation claims (N.J.S.A. 10:5-12d and N.J.S.A. 10:5-12e), which by that point were themselves time-barred. In all relevant respects, plaintiff's original complaint and his amended complaint are identical. The underlying conduct charged is the same in both pleadings, and the gist of the action remains the same.
The trial court denied plaintiff's request to amend his complaint. We granted plaintiff's motion for leave to appeal and reversed, holding that plaintiff's new claims "relate back" to his original complaint and, hence, are not time-barred, and that neither defendant was prejudiced thereby. Notte, supra, 185 N.J. at 498. These rulings were affirmed by the Supreme Court. Ibid. In doing so, the Court expressly rejected defendants' theory that since plaintiff's original CEPA complaint was time-barred when filed, it was a nullity, to which plaintiff's new claims could not "relate back". Id. at 499-500. Finding just the opposite, the Court nevertheless remanded for a determination whether amendment of plaintiff's claims would otherwise not be legally sustainable, and therefore futile, by virtue of CEPA's waiver provision, N.J.S.A. 34:19-8. Id. at 503. We now address the precise question posed.
The waiver provision of Section 8 of CEPA provides:
Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.
[N.J.S.A. 34:19-8 (emphasis added).]
Defendants contend that plaintiff's election to "institute" his action under CEPA operates as a waiver of his rights and remedies available under any other State and common law, and therefore bars his subsequent common law wrongful discharge and LAD claims. We disagree. We need not decide the preclusive effect of a CEPA claim concluded prior to judgment on the merits because we are satisfied that the statutory bar does not apply where, as here, "the institution of ...