On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-37-05.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Coburn.
This is an appeal by defendant DuPont Chambers Works*fn1 from the denial of its post-trial motions after a jury awarded DuPont's former employee, plaintiff John Seddon, $724,000 as compensatory damages and $500,000 as punitive damages, based upon the jury's finding of a violation of plaintiff's rights under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The entire amount of the jury's award of compensatory damages was for plaintiff's economic loss. The jury awarded nothing for his emotional pain and suffering. Defendant also appeals from the trial judge's award of attorney's fees to plaintiff in the amount of $523,289.
On appeal, defendant argues that the court erred when it accepted plaintiff's argument that he was entitled to an award of back and front pay without being required to prove a constructive discharge or an actual termination of his employment. Plaintiff cross-appeals from the court's decision to reduce the amount awarded for attorney's fees by fifty percent.
We agree with defendant's claims and hold that: 1) plaintiff was not entitled to an award for back and front pay because DuPont neither terminated plaintiff nor constructively discharged him from his employment; and 2) because plaintiff was not entitled to an award of economic damages, the denial of DuPont's motion for judgment notwithstanding the verdict (JNOV) was error, as was the award of counsel fees. We conclude that, like a cause of action for economic damages arising under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, a plaintiff seeking lost pay after a separation from employment that results from a violation of CEPA must prove a constructive discharge or an actual termination of employment before being entitled to an award of such lost pay. Because the trial judge erroneously accepted plaintiff's argument that the jury need not be instructed on constructive discharge or required to so find, we now vacate the $724,000 award of economic damages, as well as the $500,000 punitive damages award, and remand for the entry of judgment in favor of defendant.
Plaintiff was a chemical plant operator at the DuPont Chambers Works plant in Deepwater. He filed suit, contending that DuPont and its employees had retaliated against him after he made safety complaints, one to the Occupational Safety and Health Administration (OSHA) and the other to DuPont management. He maintained that the reprisals by DuPont consisted of: imposing restrictions on him, not imposed on others, concerning his use of vacation, sick time and personal leave days; falsely accusing him of failing to complete required employee training; accusing him of failing to attend some of the safety meetings in the summer, even though DuPont had always excused him from such summer meetings in the past; falsely accusing him of being lazy and describing him in an internal memorandum as "not [one of] our best performers"; ordering him to notify a supervisor when and where he was going to lunch, a rule not imposed on other operators; and describing him in an e-mail as a "very high maintenance" employee over whom management should maintain a "watchful eye."
According to plaintiff's testimony at trial, the reprisals escalated over time, culminating in DuPont filing a disciplinary complaint against plaintiff alleging that he had "failed" to perform one of the principal tasks required of a chemical plant operator, namely taking a sample of the caustic solution in the principal piece of manufacturing equipment at the plant and then falsifying the solution levels in his daily log sheet by "enter[ing] 'made up' information." DuPont issued plaintiff a verbal warning, which was recorded in his personnel file.
The day after plaintiff received the verbal warning, which he insisted was entirely unjustified and therefore retaliatory, he filed a complaint on DuPont's employee hotline alleging that DuPont's senior managers were harassing him for having filed the safety complaint with OSHA, and had done so both by singling him out for lunch-time and vacation restrictions, and by refusing to investigate his earlier complaints of a hostile work environment. Plaintiff testified that DuPont's rejection of the complaint he filed on the employee hotline was further evidence of the company's pattern of retaliatory behavior.
Plaintiff testified to another instance of significant retaliation by DuPont for his whistleblowing activities, namely forcing him to undergo an unwarranted, intrusive and humiliating mental status examination by a DuPont employee. The consequences of that examination were dire, as DuPont relied upon the clinician's findings*fn2 to force plaintiff to take an eight-week paid disability leave. According to plaintiff, not only was the forced leave devastating from an emotional perspective, but it resulted in a loss of overtime compensation that he would otherwise have earned had he not been forced to take the leave.
Furthermore, the clinician's conclusion that plaintiff was too emotionally unstable to work was later rejected in three independent evaluations, which were conducted at the behest of the DuPont clinician who had rendered the original report. All three, a psychologist and two psychiatrists, opined that plaintiff presented no danger of physical violence and recommended that plaintiff be permitted to return to work. Even though their findings raised doubt about the accuracy of the DuPont clinician's earlier conclusions, DuPont notified plaintiff that he would be placed on probation and was subject to quarterly performance evaluations.
Plaintiff testified that when he returned to work on May 28, 2004, he was assigned to a different shift with a new supervisor. Plaintiff claimed he could not earn the same overtime pay on the new shift, although DuPont's witnesses testified that both shifts had the same overtime opportunities. Before his suspension, plaintiff earned "[a]round [$]30,000 a year" in overtime. Approximately one year after he returned to work, plaintiff was given permission to work overtime, which he did twice. The second time, he almost had an "anxiety attack," and had to leave when defendant Paul Kaiser appeared, because of the problems plaintiff had had with Kaiser in the past. Plaintiff never worked that shift again.
Plaintiff testified that his two-month suspension made him feel "[s]ad, hopeless," as if his "life was at an end." He felt "kicked to the curb," "worthless," "[b]eaten," and "embarrassed," and wondered if his co-workers considered him "crazy." He could not eat and had trouble sleeping. After returning to work in June 2004, plaintiff worried about new allegations and experienced anxiety "every day" as he approached the entrance gate. He sought psychiatric treatment, and began taking anti-depressant medication. In February 2005, plaintiff filed suit against DuPont and Kaiser.*fn3
In January 2007, plaintiff began a voluntary six-month leave of absence. He retired on December 31, 2007, with a disability pension from DuPont. At the time of trial, plaintiff testified that he was earning $50,000 to $60,000 less per year on retirement than he had earned with his salary and overtime, and he presented the testimony of an economic expert who apparently quantified his economic loss.*fn4 Although plaintiff believed DuPont "ruined" him, he testified he would do the same thing again if he observed the same dangerous conditions he had reported to DuPont management.
At the start of trial, prior to opening statements, DuPont moved to bar plaintiff from introducing evidence of economic loss because he had not alleged constructive discharge in his pleadings. According to DuPont, plaintiff "stood up here at oral argument in [his] summary judgment papers and said, 'we're not alleging constructive discharge.' And the case law is clear, no constructive discharge, [then] no back or front pay."*fn5
Here you had somebody who chose to retire.
And he'll get up on the stand and he'll argue that he [is] still suffering emotional damages from that. And we're not seeking to bar that type of testimony. But with respect to back and front pay, Mr. Seddon without a constructive ...