Argued: February 3, 2015.
Approved for Publication March 10, 2015.
[Copyrighted Material Omitted]
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7033-05.
Ralph R. Smith, 3rd, argued the cause for appellants ( Capehart Scatchard, P.A., attorneys; Mr. Smith and Kelly E. Adler, on the brief).
Michael J. Reimer argued the cause for respondent.
Before Judges YANNOTTI, FASCIALE and WHIPPLE. The opinion of the court was delivered by FASCIALE, J.A.D.
[439 N.J.Super. 561] OPINION
The New Jersey State Police (NJSP) and Colonel Joseph R. Fuentes (collectively " defendants" ) appeal from a judgment in plaintiff's favor entered after a jury trial adjudicating plaintiff's claims under the Americans with Disabilities Act (ADA), 42 U.S.C.A. § § 12101 to 12213, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.
Defendants argue primarily that plaintiff's ADA claim -- that they failed to accommodate his medical condition -- is precluded by the doctrine of state sovereign immunity. Defendants also contend that the judgment on plaintiff's CEPA claim must be vacated because plaintiff failed to establish a prima facie case of a CEPA violation and because the judge committed numerous trial errors.
We hold that the doctrine of state sovereign immunity precludes plaintiff's ADA claim, even though defendants did not fully raise that argument until their motion for a judgment notwithstanding the verdict (JNOV). As a result, we vacate that part of the judgment awarding plaintiff damages under the ADA and dismiss the ADA claim with prejudice.
We reject defendants' arguments that plaintiff's job responsibilities precluded him from making a CEPA claim and that plaintiff failed to produce sufficient evidence for the jury to consider plaintiff's CEPA allegations. However, we vacate the CEPA judgment and remand for a new CEPA trial on liability and [439 N.J.Super. 562] damages because we are convinced that the entire CEPA verdict is fatally flawed.
The NJSP employed plaintiff, who is African American, from 1986 until he retired in 2011. From 1986 to 1993, plaintiff worked as a trooper. Beginning in 1993, plaintiff worked as a detective in the Central Security Unit. In or around October 2001, plaintiff interviewed for a position in the Equal Employment Opportunity/Affirmative Action Unit (the " EEO/AA Unit" ). Plaintiff did not get the job.
In January 2002, the NJSP promoted plaintiff to detective sergeant. In general, the NJSP permitted sergeants to be assigned to another unit without requiring them to participate in a formal interview process. In late 2002, plaintiff took advantage of this opportunity and, when there was an opening in the EEO/AA Unit, he obtained an assignment there without submitting to another interview.
Sometime around November 2003, plaintiff began a four-month medical leave of absence due to ulcerative colitis. In December 2003, while still on medical leave, plaintiff met with Fuentes to convey his belief that he had been passed over for a promotion. Plaintiff also expressed his general concerns that the EEO/AA Unit failed to timely investigate matters and that the NJSP generally disciplined African American troopers more severely than white troopers. In March 2004, plaintiff returned to work from his medical leave.
Plaintiff was eligible for a promotion on April 13, 2004. Two days later, plaintiff's supervisor (the " supervisor" ) prepared a confidential memorandum (the " memo" ) reporting to Fuentes three instances of plaintiff's purported unprofessionalism. The [439 N.J.Super. 563] supervisor indicated essentially that plaintiff tried to obtain a " promotion by extortion."
In August 2004, the supervisor provided an addendum to the memo supplying additional examples of alleged unprofessional conduct by plaintiff. In October 2004, the NJSP substantiated one of the allegations, that plaintiff failed to disclose the reason for requesting removal as an investigator on an unrelated matter, but was unable to substantiate the remaining allegations. The NJSP then removed plaintiff from the EEO/AA Unit in May 2004.
From May 2004 to September 2005, plaintiff worked in the NJSP Counter-Terrorism Unit (the " CTU" ). In September 2005, he moved to the Organized Crime Unit North (the " OCU North" ) where he performed administrative work. In October 2006, the NJSP assigned plaintiff to do surveillance in a vehicle, which plaintiff maintained deprived him of constant access to a restroom, a requirement necessitated by his medical condition. From June 2007 to February 2008, the NJSP re-assigned plaintiff to other tasks within the OCU North, where he had constant access to a restroom.
In March 2008, the NJSP transferred plaintiff to the Solid Hazardous Waste Unit (the " SHW Unit" ), and in May 2009, the NJSP promoted plaintiff to a detective sergeant first class (" DSFC" ). In his new position at the SHW Unit, plaintiff had immediate access to a restroom. In February 2011, plaintiff retired from the NJSP having reached the rank of DSFC.
Plaintiff filed his initial complaint against defendants and numerous other parties (the " other parties" ), contending primarily that the NJSP failed to timely promote him. He maintained that had he achieved a higher rank, he would have earned more money, thereby giving him a greater pension. He also asserted that the NJSP failed to accommodate his ulcerative colitis by assigning him to a position doing vehicle surveillance where he was without constant access to a restroom.
Plaintiff amended his complaint on four occasions. The court dismissed the second amended complaint pursuant to Rule 4:6-2(e), [439 N.J.Super. 564] but we reversed that order and remanded for further proceedings. Royster v. N.J. State Police, No. A-1423-06 (App.Div. Dec. 20, 2007). On remand, the parties engaged in discovery and prepared for trial.
At the close of plaintiff's case-in-chief, plaintiff's counsel elected to waive plaintiff's NJLAD claims, pursuant to the CEPA waiver clause contained in N.J.S.A. 34:19-8. The court subsequently dismissed the NJLAD claims, leaving plaintiff's ADA and CEPA claims against defendants for the jury's sole consideration.
Prior to summations, the court heard brief arguments on whether defendants had waived their ADA arguments or defenses. The court stated that " plaintiff has gone [to the] trouble of trying the entire case . . . I'm not prepared to rule on any of that at this time."
The jury returned a verdict in plaintiff's favor finding that defendants violated the ADA and CEPA. On plaintiff's ADA claim, the jury awarded plaintiff $500,000 for
emotional distress. On [439 N.J.Super. 565] the CEPA claim, the jury awarded plaintiff $55,000 in lost wages, $305,000 in lost pension benefits, and $200,000 for mental anguish and emotional distress. The judge then added pre-judgment interest on the CEPA damages, and entered judgment in plaintiff's favor in the amount of $895,548.12.
Defendants moved for JNOV, or in the alternative, for a new trial or a remittitur (the " post-trial motion" ), arguing that the court " lacked subject matter jurisdiction" to adjudicate the ADA claim because defendants were immunized under the doctrine of state sovereign immunity. The judge denied defendants' motion in its entirety and held that defendants were estopped from moving to dismiss plaintiff's ADA claim after the jury's verdict.
On appeal, defendants argue that (1) they are immune from liability under the ADA pursuant to the doctrine of state sovereign immunity; (2) the judge erred in applying the wrong definition of " disabled" and usurping the role of the jury by finding that plaintiff was disabled under the ADA; (3) plaintiff's ADA claim is procedurally deficient because he failed to exhaust administrative remedies; (4) plaintiff's job duties precluded him from bringing a CEPA claim; (5) plaintiff failed to establish a prima facie case of a CEPA violation; (6) plaintiff's CEPA damages award should be ...