On certification to the Superior Court, Appellate Division.
(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).
This appeal raises novel and complex questions relating to workplace discrimination claims. The first question requires the Court to consider the effect, if any, that a law enforcement job applicant's failure to disclose an expunged conviction has on his subsequent complaint based on claims of workplace discrimination and hostile work environment. The second requires the Court to consider the grounds on which a supervisor may be held personally liable for acts of discrimination in the workplace.
In 1974, Cicchetti was arrested and charged with two offenses, breaking and entering and stealing. He thereafter entered into a guilty plea, as a result of which he was convicted. At the time, Cicchetti was twenty-one years old and not engaged in public employment. In February 1990, Cicchetti obtained a court order expunging the arrest and conviction from his record. The order provided, in part, that the arrest shall be deemed "not to have occurred," and also that information relating to the expunged records "shall not be released except as provided under the provision of N.J.S.A. 2C:52-1, et seq." According to Cicchetti, his attorney assured him that the order meant that the 1974 arrest and conviction "never happened" and that he was not required to disclose it if asked.
Twenty years after his arrest and four years after the expungement order, Cicchetti applied to become a Morris County Sheriff's Officer. The application form asked whether he had ever been "arrested, indicted, or convicted" of a violation of the criminal law. Relying on the expungement order and the advice of his attorney regarding the meaning of that order, Cicchetti answered "No" to this question.
Cicchetti was hired and began working as a Sheriff's Officer. He received a permanent appointment in December 1994. Late in 1996, Cicchetti participated in a blood drive sponsored by the Sheriff's Office. As a result of routine testing performed on all blood donors, he learned for the first time that he had Hepatitis C. In spite of that diagnosis, he continued to work and was able to perform his usual duties. When word of the diagnosis spread throughout the department, Cicchetti became the target of a variety of acts of harassment that he believed he was being forced to endure because of his disease.
According to Cicchetti's complaint, two fellow officers instigated the harassment and encouraged others to join them. Cicchetti cites numerous examples of the harassment, including: repeated acts of verbal abuse and taunting, such as calling him "Hepatitis Boy," and warning others that he was a health risk; exaggerated displays of cleaning and sanitizing objects he had touched or areas where he had been; refusing to shake his hand and donning latex gloves and surgical masks when he was near; piling dirty clothing and other items in front of his locker and throwing mouthwash against his locker; interfering with his radio communications; and refusing to sit with him at the lunch table. On April 12, 2000, Cicchetti suffered what he considered to be overt intimidation that caused him to reach out to his supervisors for their assistance. While entering the parking deck, Cicchetti saw a man sitting in a vehicle who appeared to be waiting for him. As Cicchetti approached on a narrow ramp, the individual drove the vehicle directly at him, gunning the engine and only avoiding contact at the last moment.
Cicchetti complained to a supervising officer on April 17, 2000, and was told to file a formal report. Three days later, Cicchetti did so, filing the report with defendant John Dempsey, who was both the Undersheriff and the Equal Employment Opportunity Coordinator for the Office. Cicchetti's lengthy report recited over seventy-five events dating back to November 1998 that he considered representative of a pattern of harassment. Cicchetti then met with Dempsey and Chief Thomas Baxter. Cicchetti claims he spoke with Dempsey again on May 15, because the harassing behavior had not stopped. Dempsey apparently told Cicchetti that he had spoken with the two officers who were thought to be the instigators. According to Cicchetti, the harassment continued unabated. Following a lunch break on November 14, 2000, during which he was affirmatively shunned, avoided and ostracized by other officers, none of whom would sit near him in the crowded room, Cicchetti signed out early. He never returned to work and submitted his formal resignation letter on February 25, 2002.
Cicchetti filed his complaint against the Sheriff's Office, Sheriff Rochford, Undersheriff Dempsey, and the two individual sheriff's officers. The complaint asserted that he was protected by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because of his medical condition and that defendants were liable to him for discrimination based on his disability and for hostile work environment. The Law Division granted summary judgment for all defendants. The court concluded that notwithstanding the order of expungement, Cicchetti was obligated to reveal the prior conviction when he applied for employment; that the conviction disqualified him from employment; and that he was therefore precluded from filing any employment-related suit against the Sheriff's Office.
In an unpublished opinion, the Appellate Division affirmed in part and reversed in part. The panel rejected defendants' arguments that because of the prior conviction, Cicchetti was either statutorily barred from public employment or precluded from maintaining his suit because of his failure to disclose that fact. The panel also reasoned that there was sufficient evidence to support the hostile work environment and discrimination claims against the Office of the Sheriff and the supervisory defendants, Sheriff Rochford and Undersheriff Dempsey. The Appellate Division agreed that Cicchetti's co-employees could not be personally liable under the LAD for their actions, and affirmed the order granting summary judgment as to them. This Court granted the petition for certification filed by the Sheriff's Office, Sheriff Rochford, and Undersheriff Dempsey.
HELD: A law enforcement employee's failure to disclose an expunged conviction does not prohibit the employee from pursuing a workplace discrimination complaint, but evidence of the conviction can be used to limit or potentially eliminate economic damages. The individual supervisory defendants do not bear any personal liability because the statutory basis for personal liability by an individual is limited to acts that constitute aiding or abetting, and this record reveals no act by either of the individual supervisory defendants sufficient to meet that statutory test.
1. The Court begins its analysis by considering defendants' assertion that Cicchetti's failure to disclose his expunged 1974 conviction in his employment application prevents him from proceeding on any employment-based theory. The United States Supreme Court has held that after-acquired evidence of wrongdoing, which otherwise would have resulted in an employee's discharge, does not bar that employee from all relief under the Age Discrimination in Employment Act, although it can be used to limit the employee's remedies. McKennon v. Nashville Publ'g Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995). The Court limited the evidence that could be used in this manner by requiring that the employer establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. Regarding the limitation of available remedies, the Court explained that the employee would be entitled to an award of backpay only, calculated from the date of the unlawful discharge until the date when the wrongdoing was discovered. Subsequent federal cases have interpreted McKennon to be applicable to other statutes that serve to protect employees in the workplace, and also held that it does not matter whether the after-acquired evidence relates to on-the-job misconduct or to misrepresentations made in a job application or resume. (pp. 14-25)
2. In Cedeno v. Montclair State Univ., 163 N.J. 473, (2000), this Court concluded that one who is statutorily disqualified from obtaining public employment because of a prior conviction ordinarily may not maintain a cause of action for wrongful termination pursuant to the LAD or Conscientious Employee's Protection Act (CEPA). Cedeno had previously been convicted of committing bribery in the course of a previous position as a public employee, and this conviction rendered him forever disqualified from holding any office or position as a public employee under N.J.S.A. 2C:51-2(d). Unlike the plaintiff in Cedeno, Cicchetti was not statutorily disqualified from the job with the Sheriff's Office. And, although the expungement statute requires that information included in expunged records be disclosed when seeking employment in law enforcement, there is not an absolute bar on employment with a law enforcement agency. Further, there is no evidence in this record to suggest that Cicchetti would not have been hired if he had revealed his expunged conviction in the employment application. The record includes no departmental hiring manual, no testimony, and no other evidence that the Sheriff's Office had any policy in the nature of a ban on hiring one who, like Cicchetti, had a prior history of an expunged offense. The Court cannot conclude that the Sheriff's Office would have rejected Cicchetti's application, on its face, had the expunged offense been revealed. (pp. 25-32)
3. The central issue in this case is whether, and to what extent, after-acquired evidence may bar or limit damages in a workplace discrimination or hostile work environment lawsuit. In Taylor v. Int'l Maytex Tank Terminal Corp. -- Bayonne, 355 N.J. Super. 482 (App. Div. 2002), the Appellate Division concluded that after-acquired evidence of workplace misconduct could not be used to limit non-economic, emotional distress damages, or punitive damages in a hostile work environment claim. Defendants' contrary assertions are not persuasive. Under defendants' construct, if after-acquired evidence of resume fraud is sufficiently severe that the individual would not have been hired in the first place, acts of discrimination or a hostile work environment would, in effect, be without a remedy. The Court discerns in the LAD an expression of public policies that requires a new balance between the rights of the employee to be free from workplace discrimination and the rights of the employer to make legitimate hiring and firing decisions. To be sure, Cicchetti should have disclosed his prior conviction when he applied for the law enforcement job. His failure to do so, however, is irrelevant. Even if the Sheriff's Office would not have hired him in the first place, and even if the Sheriff would have fired him upon learning of the prior conviction, Cicchetti was entitled, during the period of his employment, to be protected from discrimination and to serve in a workplace free from the hostility that he endured. By the same token, however, the Court does not envision that the Legislature intended to condone resume fraud or similar misrepresentations of one's employment-related credentials. The Court therefore concludes that economic damages, including claims for backpay and front pay, may be limited based on the employer's discovery of the after-acquired evidence if that information would have resulted in termination. The elements of damages that are so much a part of the remedies available pursuant to the LAD, and for hostile work environment claims in particular, namely, emotional distress and, potentially, punitive damages, cannot in fairness be limited or barred based on such after-acquired evidence. (pp. 32-38)
4. The Court next considers that aspect of the Appellate Division's decision that reinstated the complaint against Cicchetti's supervisors, Sheriff Rochford and Undersheriff Dempsey, personally. The LAD includes a prohibition that goes beyond employers and provides that "[i]t shall be . . . unlawful discrimination . . . [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [under the LAD] . . . ." N.J.S.A. 10:5-12(e). The Court has not previously considered the impact of the prohibition on "aiding and abetting" as a separate ground for a finding of liability as against the supervisor individually. Rather, the Court looked to the acts of the supervisor in the context of establishing the employer's liability and imputed to the employer the acts or failure to act by a supervisor who knew or should have known of the hostile environment. The role of supervisors also has been considered in determining whether punitive damages should be awarded against the employer. However, individual liability of a supervisor for acts of discrimination for creating or maintaining a hostile environment can only arise through the "aiding and abetting" mechanism that applies to "any person." The Court has interpreted the words "aiding and abetting" to require "active and purposeful conduct." The record on appeal contains no evidence that would support the conclusion that Sheriff Rochford or Undersheriff Dempsey could have been aiders or abettors. At most, there is evidence that they failed to act to protect Cicchetti or to effectively respond to his complaints of discrimination. Standing alone, this falls well short of the "active and purposeful conduct" this Court has required to constitute aiding and abetting for purposes of individual liability. (pp. 38-46)
The judgment of the Appellate Division reversing and remanding as to defendant Morris County Sheriff's Office is AFFIRMED; the judgment of the Appellate Division reversing and remanding as to defendants Sheriff Rochford and Undersheriff Dempsey, individually, is REVERSED, and the order of the Law Division dismissing all claims as to Sheriff Rochford and Undersheriff Dempsey, individually, is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE HOENS' opinion.
The opinion of the court was delivered by: Justice Hoens
Argued September 24, 2007
Plaintiff John Cicchetti's appeal raises questions relating to workplace discrimination claims that are both novel and complex. The first calls upon this Court to consider the effect, if any, that a law enforcement job applicant's failure to disclose an expunged conviction has on his subsequent complaint based on claims of workplace discrimination and hostile work environment. Although we have held that one who was statutorily barred from public employment, but who was hired by concealing that disqualification, is generally precluded from pursuing a claim for wrongful termination, see Cedeno v. Montclair State Univ., 163 N.J. 473, 479 (2000), we have not previously considered whether an employee who conceals requested but not disqualifying information when applying for a job is also precluded from pursuing an employment discrimination claim. Nor have we addressed the question of whether such information has any relevance to an individual's claim that he or she was subjected to a hostile work environment during the time when he or she was actually employed.
These issues require us to consider the balance between the legitimate needs of law enforcement employers to receive and consider any applicant's prior criminal history and the oft-repeated, strongly expressed policy of our Legislature to rid our workplaces, public and private, from any and all forms of discrimination.
Our consideration of that carefully struck balance compels us to conclude that because plaintiff was not statutorily barred from the employment he sought in law enforcement, he was not prohibited from pursuing his workplace discrimination complaint. In the context of limiting the scope of its liability when faced with such a complaint, an employer may demonstrate that the employee would have been terminated as soon as the withheld information was discovered. This evidence, however, is only relevant to the quantum of damages. More particularly, we hold that such evidence may be used to limit or potentially even eliminate economic damages, including backpay and front pay. Notwithstanding that conclusion, we further hold that, consistent with our Legislature's strong pronouncements about workplace discrimination, this evidence may not be used to diminish an award of non-economic damages to an employee arising from a hostile work environment.
The second issue presented in this appeal requires this Court to consider the role of a supervisor for purposes of fixing liability for workplace discrimination. In part this inquiry relates to the supervisor's role for purposes of imputing liability to an employer, but it also demands that we consider the grounds on which a supervisor may be held personally liable for acts of discrimination that take place in the workplace. Because the statutory basis for personal liability by any individual is limited to acts that constitute aiding or abetting, and because this record reveals no act by either of the individual supervisory defendants sufficient to meet that statutory test, we conclude that neither of the individual defendants bears personal liability to this plaintiff.
In 1974, plaintiff was arrested and charged with two offenses, breaking and entering, N.J.S.A. 2A:94-1, and stealing, N.J.S.A. 2A:119-2. He thereafter entered into a guilty plea, as a result of which he was convicted. At the time, he was twenty-one years old and was not engaged in public employment. In February 1990, plaintiff obtained a court order expunging the 1974 arrest and conviction from his record. The order provided, in part, that "the arrest which is the subject of this Order shall be deemed in contemplation of law not to have occurred and [plaintiff] may answer accordingly any questions relating to this occurrence." The order further stated that information pertaining to the expunged records "shall not be released except as provided under the provision of N.J.S.A. 2C:52-1 et seq."
At the time, plaintiff asked his attorney to explain the meaning of the expungement order. According to plaintiff, the attorney assured him that the order meant that the 1974 arrest and conviction "never happened" and that he was not required to disclose it if asked. Plaintiff did not separately inquire about the meaning of the language in the order referring to a statutory exception governing the release of the expunged records.
Twenty years after his arrest, and four years after the order of expungement was granted, plaintiff applied to become a Morris County Sheriff's Officer. The application form asked whether the applicant had "ever been arrested, indicted, or convicted for any violation of the criminal law?" Relying on the order of expungement and the advice of his attorney about the meaning of that order, plaintiff believed he was not required to reveal the 1974 arrest and conviction. He therefore answered "No" to this question.
Plaintiff was hired and began working as a Sheriff's Officer. He received a permanent appointment in December 1994, after completing his training. Late in 1996, plaintiff participated in a blood drive sponsored by the Sheriff's Office. As a result of routine testing performed on the blood of all donors at that event, he learned for the first time that he had Hepatitis C.*fn1 In spite of that diagnosis, he continued to work and was able to perform all of his usual duties as a sheriff's officer. When word of his diagnosis spread throughout the department, however, he became the target of a variety of acts of harassment that he believed he was being forced to endure because of his disease.
According to plaintiff's complaint, he was both ostracized and harassed through a variety of means. He asserts in particular that two of his fellow officers, defendants Gerald Marinelli and John McWilliams, instigated the harassment and encouraged others to join them. Plaintiff points to numerous examples of what he endured both directly at their hands and by others at their behest. Some were repeated acts of verbal abuse and taunting. For example, they, and others, began to call plaintiff "Hepatitis Boy;" persisted in referring to him as, or warning other officers that he was, a health risk; and repeatedly mentioned death and dying to him or in his presence. Others were acts that drew attention to his disease through exaggerated displays of cleaning or sanitizing objects he had touched or areas where he had been. For example, there were constant uses in his presence of all sorts of household disinfectants, sprays and cleansers which were left where he would find them or applied to equipment he had used, often as he watched. Other officers refused to shake his hand, handed him jail keys that had just been soaked in alcohol, chained chairs to prevent him from sitting in them, and donned latex gloves and wore surgical masks when he was around.
Other acts included piling coat hangers, wires, shoes, dirty boots, and old clothes on or in front of his locker and throwing, dumping or smashing bottles of mouthwash against his locker. Some of the incidents were designed to prevent him from communicating by radio when he was transporting prisoners. His radio was taken or disassembled and hidden from him. By using a technique known as "keying over" plaintiff's radio transmissions, the other officers were able to block him from broadcasts and disrupt his communications with fellow officers. Moreover, they refused to allow him to relieve other officers who were on duty, would not sit with or be seated at a lunch table with him, and openly avoided even incidental contact with him.
Although plaintiff had discussed some of these activities with one of his supervisors as early as May 1999, he came to believe, following an incident on April 12, 2000, that the behaviors directed toward him were "escalating into physical threats." On April 17, 2000, plaintiff complained to a supervising officer about this pattern of conduct and was advised to file a formal report. Three days later he did so, filing his report with defendant John Dempsey, who was both the Undersheriff and the Equal Employment Opportunity Coordinator for the Sheriff's Office.
Plaintiff's report was based on notes that he had been making since November 16, 1998, which was the date when plaintiff returned to duty after having undergone what he described as experimental treatment for his disease. The report is lengthy, recounting the details of seventy-five different events that plaintiff considered to be representative of the pattern of harassment visited upon him by his fellow officers.
At the end of his report, plaintiff described the incident that caused him to reach out to his supervisors for their assistance. In an act that plaintiff considered to be overt intimidation that placed him in physical danger, he encountered a man he believed was defendant McWilliams. He only saw the side of the man's face and his aviator-type sunglasses, but he recounted that the man, already seated in a vehicle, waited for plaintiff in the parking deck, saw him approaching on a narrow ramp, and drove directly at him, gunning the engine and only avoiding contact with him at the last moment. Plaintiff closed his report with a plea to his supervisors for their help in bringing these acts of harassment to an end.
After plaintiff filed his report, he attended a meeting with Dempsey and Chief Thomas Baxter about the acts he had complained of in the report. According to plaintiff, he spoke to Dempsey again on May 15, because the actions and behaviors he had complained about had continued undeterred and it appeared that his complaint had not been resolved. At that time, Dempsey told plaintiff that he had discussed the issues with Marinelli and McWilliams, who had both assured him that they were "unaware" of plaintiff's "situation" and that they would "try to be more understanding" in the future. Following this meeting with Dempsey, when plaintiff returned to his locker, he found that someone had piled old coathangers and boots in front of it and had smashed a bottle of mouthwash against it as well. The next day, plaintiff again complained to Dempsey. According to plaintiff, nothing was done to address his complaints. In fact, in spite of ...