On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7000-04.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Alvarez.
Plaintiff Talib Turner appeals from an order of the Law Division dismissing his cause of action under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and granting a directed verdict, pursuant to Rule 4:37-2(b), in favor of defendants Associated Humane Societies, Inc. (AHS) and Roseann Trezza at the close of plaintiff's evidence. For the following reasons, we reverse and remand for a new trial.
Accepting as true all the evidence adduced by plaintiff on his case-in-chief, and according him the benefit of all favorable inferences, Dolson v. Anastasia, 55 N.J. 2, 5 (1969), the facts are as follows. AHS is a federally and state recognized Section 501(c) nonprofit organization that receives, shelters, and adopts homeless and unwanted animals out to the public. It also performs other animal-related services, such as euthanasia, public education, and animal control for municipalities throughout the State. AHS has various shelters throughout New Jersey, including facilities in Newark, Union,*fn1
Tinton Falls and Forked River. Defendant Roseann Trezza is the executive director of AHS, and Terrence Clark is the assistant executive director.
Plaintiff was hired by AHS as an at-will employee on August 19, 2003, to work in its Newark facility. Plaintiff's duties were essentially clerical and included inputting data into the computer, processing paperwork for animal surrenders and adoptions, answering the telephone, and client contact.
On June 1, 2003, about two-and-one-half months before plaintiff started working at AHS, Renee Langhaar surrendered her 115-pound dog, a Doberman Pinscher, to AHS's Newark facility for destruction. The dog was being surrendered because it had bitten Langhaar and that fact was noted on AHS's animal detail form known as a "Nine." Langhaar paid AHS approximately $205 to keep the dog under observation for ten days, then euthanize, and cremate it.
Contrary to its agreement with Langhaar, AHS never put the dog to sleep, but rather placed it back into the pool of adoptable animals. On August 27, 2003, about one week after plaintiff started working at AHS, the Doberman that was to have been destroyed was adopted out to Valerie deSwart, an elderly woman, who had come to the shelter that day from Medford. While processing the paperwork for deSwart's adoption of the Doberman, plaintiff noticed a notation on the "Nine" that the dog had bitten its prior owner, and the prior owner had actually paid AHS to euthanize the dog after the ten-day observation period expired, which would have been June 8, 2003. Concerned about this discrepancy, plaintiff immediately notified his supervisor, Sam "Lovey" McCloud. When Lovey told deSwart she could not adopt the dog, presumably because it had attacked its previous owner and was supposed to be euthanized, she requested that he confirm with a higher authority.
As a result, Lovey called Trezza in plaintiff's presence to explain the situation, which resulted in Trezza approving the Doberman's adoption. Her approval only heightened plaintiff's concerns because of his knowledge of the Doberman breed. He had previously watched a Discovery channel segment on television warning the dog could snap and turn on its owner because a Doberman's brain can grow faster than its skull. Plaintiff also was warned about Dobermans by a friend who raises dogs. Consequently, plaintiff decided to call Trezza back. He personally dialed her extension, handed the phone to Lovey and then listened in on the conversation. At plaintiff's urging, Lovey explained plaintiff's concerns to Trezza, namely that the dog had bitten its previous owner who then paid AHS to euthanize the animal. Trezza, however, confirmed her earlier decision allowing the adoption: "[h]e has to do it. I approved it.
That's his job." When Trezza inquired whether plaintiff was also on the phone, plaintiff responded "I'm right here."
The order to adopt the dog out "shock[ed]" plaintiff but Lovey told him, "you've got to do it", and plaintiff reluctantly complied. As he later explained:
I had to do my job. I still told Lovey that I ain't feel comfortable with doing the job. But I'm new, that's my boss, my boss telling me to do that job, that's what I had to do.
Thus, plaintiff proceeded to complete the adoption process. As required by AHS, plaintiff checked the dog's temperament and observed deSwart walking with the dog outside before allowing her to leave with the animal. Trezza and her assistants also observed ...