Suing Your Employer and Staying Employed – Part 2

July 28th, 2011
Testifying as a witness in Court is protected from retaliation

Photo by tracie7779 via flickr

Post by Richard E. Yaskin, Esquire

Part I of this post concluded that New Jersey law  protects employees who sue their employer from retaliatory actions only if the subject of the lawsuit involves a clear mandate of public policy.   I now discuss a Third Circuit Court of Appeals ruling (covering NJ, PA and DE) as to whether a public employee is protected from retaliation based on having testified in court.

The Third Circuit addressed the First Amendment protections of a public employee in Reilly v. City of Atl. City, 532 F.3d 216, 228-29 (3d Cir. 2008).  The court quoted from the landmark U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), which stated the elements of a public employee’s constitutional retaliation claim. “[A] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.”

 The Reilly court then cited to U.S. Supreme Court rulings which recognize that “the duty to give testimony” is an “obligation imposed upon all citizens”.  The duty to testify has long been recognized as a basic obligation that every citizen owes his Government, ”It is thus beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”

Green v. Philadelphia Housing Authority.,105 F.3d 882, 887 (3d Cir. 1997) involved a Housing Authority police officer who was transferred from a special unit to regular patrol duty after he voluntarily appeared as a witness at the bail hearing of a longtime friend’s son.  Although Officer Green refused to testify at the hearing after learning that the charges against his friend’s son included organized crime activity, he was nonetheless transferred from the special unit after another officer notified the unit’s captain that Green had appeared as a character witness for a member of a crime organization.  The court held that “there is a compelling reason to find Green’s appearance to be a matter of public concern regardless of its voluntary nature. That reason, of course, is the integrity of the truth seeking process.” Id. at 886.

In the instant case, Reilly assisted the State’s investigation of a fellow officer and testified for the prosecution at trial.  His testimony stemmed from Reilly’s official duties in the investigation.  Since the Garcetti Court had focused on speech contained in an internal memo, Justice Souter there cautioned that “the claim relating to truthful testimony in court must surely be analyzed independently to protect the integrity of the judicial process.” 547 U.S. at 443-44 (Souter, J., dissenting).  In a matter of first impression, the Third Circuit ruled that since a citizen’s obligation to offer truthful testimony in court is necessary to protect the integrity of the judicial process and to insulate that process from outside pressure, a citizen’s obligation to testify truthfully is no weaker when one is employed by the government than in any other capacity.  Since the act of offering truthful testimony is the responsibility of every citizen, the First Amendment protection associated with fulfilling that duty is not vitiated by one’s status as a public employee. That an employee’s official responsibilities provided the initial impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully.  The court thus held that Reilly’s truthful testimony in court constituted protected citizen speech and that his claim was not foreclosed by the “official duties” requirement enunciated in Garcetti.

This federal ruling is likely to be followed by New Jersey State courts construing either the federal or State constitution.  A resulting question is whether the protections afforded to employees who testify in court can transcend the limitation described in Part I that to be “protected” from retaliation, an employee’s lawsuit must involve a clear mandate of public policy.  Would an employee who testifies in court against his employer be protected from retaliation by virtue of “testifying”, even in a private dispute with his employer?

Please share any comments on the Yaskin New Jersey Employment Law blog post, a weekly discussion of issues of concern to employees in the work place.

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An additional element is added to prove a retaliation claim in New Jersey.

July 19th, 2011
Jury must decide good faith and reasonableness of internal discrimination complaint

stepnout via flickr

 

Post by Richard E. Yaskin, Esquire

What must an employee prove to prevail in a retaliation lawsuit after making an internal complaint of discrimination to his employer?   New Jersey law had been well settled that in order to establish a prima facie case of retaliation under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12 (d)(LAD), an employee was required to show:

(1) He was engaged in a protected activity known to the Employer;

(2) He was thereafter subjected to an adverse employment decision by the Employer;

(3) There was a causal link between his protected activity and the subsequent adverse employment action.

 

Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995); Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548-49 (App.Div. 1995).

 

In 2007, the New Jersey Supreme Court added the requirement that a retaliation plaintiff demonstrate that his underlying complaint of discrimination was brought “reasonably and in good faith.”  Carmona v. Resorts Int’l Hotel & Casino, 189 N.J. 354, 372-73 (2007).  In requiring this showing, the Court stated it was following parallel federal court precedents, under which a plaintiff must show that “he had a reasonable, good-faith belief that discrimination occurred to prevail on a retaliation claim[,]“[1] Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 187 (2005) (Thomas, J., dissenting). This tenet was said to be universally observed by every United States Court of Appeals that has considered the question. Id. at 187 n.1 (citing cases).

The Carmona Court also stated that its reasoning conformed to the public policy underlying the New Jersey Law Against Discrimination (“LAD”).

We recognize this requirement as an element of plaintiff’s required proofs in a LAD-retaliation claim because its absence may well lead to abuse. Common sense tells us that the Legislature could not have intended that the LAD provide a safe harbor to one who files a baseless, meretricious complaint. It also tells us that the LAD cannot protect one who preemptively files a complaint solely in anticipation of an adverse employment action by the employer. The LAD was and is intended as a shield to protect employees from the wrongful acts of their employers, and not as a sword to be wielded by a savvy employee against his employer.

 

Id. at 372-73.

 

As a result, juries deciding LAD retaliation cases will now be asked whether the employee’s initial internal discrimination complaint was made “reasonably and in good faith”.  Only upon an affirmative answer, will the employee be permitted to prove the above three prima facie elements.

This approach places the employee’s motivation in bringing an internal complaint of discrimination directly at issue.  It conflicts with some federal court decisions addressing the “participation clause” protections from retaliation under Title VII of the Civil Rights Act.  “Participation” refers to the federal or state mechanisms established to combat discrimination such as filing a charge with the EEOC.  See e.g. Slagle v. County of Clarion, 435 F.3d 262, 268 (3d Cir. 2006).  The Carmona Court declined to differentiate federal case law addressing the dichotomy between opposition clause and participation clause protections even though the “text of the LAD also lists both the “opposition” and “participation” as statutorily protected activity.’”  See Carmona 189 N.J. at 372 n.5.

A similar result could have been accomplished without unduly focusing on the possibility of a complaining employee’s dubious motivation.  Rather, internal complaints which the employee injected in bad faith or in anticipation of imminent discipline, could be screened at the final stage of prima facie proof.   There, the employee bears the burden of demonstrating that there was a causal link between his protected activity and the subsequent adverse employment action.   If the employer shows that it was going to take adverse action before and/or regardless of an internal discrimination complaint, an employee would not likely meet this burden.

The Court’s subsequent retaliation ruling in Tartaglia v. UBS Paine Webber, Inc., 197 N.J.  87, 127 (2008) affirmed a required retrial of an employee’s “no cause” verdict.  This was due to the trial court’s error in instructing the jury to disregard a second claimed “protected” internal complaint of gender discrimination. The Court noted that upon retrial, the trial court might conclude that there remains an issue of fact about whether the “wet my pants” remark and supervisor Janick’s responsive laughter supported a reasonable, good faith belief that they were directed at plaintiff “because of her sex,” and therefore constituted protected activity under the LAD.   An appropriate charge to the jury would permit it to decide this mixed factual-legal issue of whether “protected” activity had occurred.

Although the Carmona Court seems to have hastily abandoned the federal dichotomy between opposition and participation clause protections despite following “parallel federal court precedents,” this ruling may be defensible since Mr. Carmona’s discrimination complaints were limited to Resorts’ own internal processes.  In retaliation case trials, plaintiffs should actively seek summary judgment or to strike the defense of bringing an unreasonable, bad faith, internal complaint unless substantial evidence supports such an assertion.

 

 

 

Please share any comments on the Yaskin New Jersey Employment Law blog post, a weekly discussion of issues of concern to employees in the work place.

 

[1] The New Jersey Supreme Court changed the intended meaning of this quote from Jackson by omitting the words: “no Court of Appeals requires a complainant to show more than that . . .”

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Suing Your Employer and Staying Employed? – Part 1

July 13th, 2011
Working while suing your employer

Chris Bastian via flickr

 

Post by Richard E. Yaskin, Esquire

Can you sue your employer in New Jersey and have a right not to be terminated because of the lawsuit? A not so recent Appellate Division case, Alexander v. Kay Finlay Jewelers, Inc., 208 N.J. Super. 503, 508 (App. Div. 1986), held that “[t]here is no statutory or regulatory proscription against a firing in retaliation for the institution of a civil action against the employer as a means of resolving a salary dispute.”  The court characterized the contractual salary dispute giving rise to the termination of plaintiff’s employment as “involv[ing] a matter having no significance beyond the private interests of plaintiff and defendant.”  Id. at 508.  Recently, an unreported Appellate Division ruling in  Perlman v. Kessler Institute, A-0642-07T2 (App. Div. May 9, 2008) concurred: “We see no reason to revisit this issue, and decline plaintiff’s invitation to overrule Alexander v. Kay Finlay Jewelers, Inc.”.

Yet, as the language of Alexander implies, it may be unlawful to terminate an employee who has sued her employer over a clear mandate of public policy concern, warranting such legal protection. For instance, a suit seeking to maintain a safe working environment in the presence of hazardous chemicals should not expose the “whistleblowing” employee to firing by reason of bringing such legal action in the public interest.

In Erickson v. Marsh & McLennon, Co., 117 N.J. 539, 560-61 (1990), New Jersey’s Supreme Court weighed in on this issue.

. . . . .  an employer has an absolute right to discharge an ‘at-will’ employee even if that employee has retained a lawyer to protest the employer’s actions–provided only that the employer not violate any clear mandate of public policy. (citations omitted)  . . . . . A decision to terminate an ‘at-will’ employee who has adversely reacted to management’s criticism does not constitute discrimination based on gender. Rather, it is a legitimate, non-discriminatory method of handling the daily operations of a business. (emphasis added)

 

The unreported Appellate Division decision in Ronald C. Mason  V. Zoom Technology, Inc., No. A-0727-08T3 (App. Div. Aug. 3, 2010) recently applied Erickson to dismiss a retaliation claim that was grounded on an employee’s threat to sue his employer.

                        The final argument in support of plaintiff’s Pierce [public policy] claim is that he was terminated in retaliation for his threat to sue defendants. Both Chuck and Chris Hansen acknowledged that plaintiff was terminated, in part, because plaintiff threatened to sue them. However, because the threatened suit was to vindicate an interest personal to plaintiff, this argument also fails to identify a violation of a clear public mandate. [See   Erickson, 117 N.J. at 560.]

Id., slip op. at 22-23. (emphasis added)

The takeaway is that an employer may be free to discharge a litigious employee who is acting solely in his personal interest. This is not the case when an employee brings suit over a clear mandate of public policy concern.  As we address in part 2 of this blog post, an employee’s charge of employment discrimination to a government agency designated for that purpose is almost always considered an action brought in the public interest.  Since the threat of suit in Mason v. Zoom, supra. was at least in part based on a claim of employment of discrimination, the correctness of that ruling remains in doubt given New Jersey’s strong public policy to eradicate workplace discrimination.

Please share any comments on the Yaskin New Jersey Employment Law blog post, a weekly discussion of issues of concern to employees in the work place.

 

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