NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3357-12T3
BRIAN ROYSTER,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
March 10, 2015
v.
APPELLATE DIVISION
NEW JERSEY STATE POLICE and
JOSEPH R. FUENTES,
Defendants-Appellants,
and
OFFICE OF THE ATTORNEY GENERAL,
MARSHALL BROWN, TIMOTHY GOSS,
THOMAS GILBERT, KENNETH ROWE,
PATRICK REILLY, ALAN TERPANICK,
DEBORAH EDWARDS, D.A.G., DAVID
ROSENBLUM, D.A.G., ALFRED RAMEY,
A.A.G., AUSTIN O'MALLEY, PETER VAN
IDERSTINE, STEPHEN SERRAO, WILLIAM
LUCAS, MARSHALL CRADDOCK, DAVID
JONES, and MARK DOYLE.
Defendants.
___________________________________________
Argued February 3, 2015 – Decided March 10, 2015
Before Judges Yannotti, Fasciale and
Whipple.
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.
The opinion of the court was delivered by
FASCIALE, J.A.D.
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
2 A-3357-12T3
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
damages because we are convinced that the entire CEPA verdict is
fatally flawed.
I.
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.
3 A-3357-12T3
Sometime around November 2003, plaintiff began a four-month
medical leave of absence due to ulcerative colitis.1 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 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
1
Ulcerative colitis is an inflammatory disease of the colon. 16
Attorneys Textbook of Medicine ¶ 231.50 (3d ed. 2015).
4 A-3357-12T3
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
5 A-3357-12T3
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 complaint2 pursuant to Rule
4:6-2(e), 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. 34:19-8.3 The court
subsequently dismissed the NJLAD claims, leaving plaintiff's ADA
2
In the second amended complaint and thereafter, plaintiff
asserted claims for (1) a hostile work environment under the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -
42; (2) a "hostile work environment and disparate treatment as
to promotions and transfers"; (3) a "state constitutional
claim"; (4) "CEPA and constitutional claims"; (5) "retaliation,
filing spurious charges and specifications"; (6) sexual
harassment; (7) discrimination and retaliation under the ADA and
the NJLAD; (8) "patterns of discrimination, hostile work
environment and violations of constitutional rights and CEPA";
and (9) a "hostile work environment and refusal to conduct
investigations of wrongful behavior."
3
This clause requires a plaintiff to waive "the rights and
remedies available under any other contract, collective
bargaining agreement, State law, rule or regulation or under the
common law." N.J.S.A. 34:19-8.
6 A-3357-12T3
and CEPA claims against defendants for the jury's sole
consideration.4
Prior to summations, the court heard brief arguments on
whether defendants had waived their ADA arguments or defenses.5
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.6 On 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
4
The claims against the other parties were dismissed at various
stages of the proceedings.
5
The record is unclear as to which ADA defenses were being
raised at this time.
6
The judge capped this amount at $300,000 pursuant to 42
U.S.C.A. § 1981a.
7 A-3357-12T3
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 vacated because the
jury considered irrelevant evidence in making its calculations;
and (7) the judge committed numerous other trial errors.
II.
We begin by addressing defendants' contention that the
doctrine of state sovereign immunity immunizes them from
liability under the ADA. Defendants maintain that the judge
erred by concluding that they were estopped from making the
argument in their post-trial motion. Equating state sovereign
8 A-3357-12T3
immunity with the principles of subject matter jurisdiction and
the protections afforded by the Eleventh Amendment to the United
States Constitution, defendants contend that they can raise a
state sovereign immunity defense at any time.
A.
At the outset, we note that defendants conflate the rules
of protection under the Eleventh Amendment, state sovereign
immunity, and subject matter jurisdiction. While these legal
principles may be interrelated, they are distinct, and warrant
brief discussion.
i.
It is well-recognized that states have enjoyed state
sovereign immunity in federal courts under the Eleventh
Amendment. "[T]he States' immunity from suit is a fundamental
aspect of the sovereignty which the States enjoyed before the
ratification of the Constitution." Alden v. Maine, 527 U.S.
706, 713, 119 S. Ct. 2240, 2246-47, 144 L. Ed. 2d 636, 652
(1999). After the United States Supreme Court allowed an out-
of-state creditor to sue the state of Georgia in federal court
on a debt, see Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.
Ed. 440 (1793) (applying the plain text of U.S. Const. art. III,
§ 2, cl. 1), Congress adopted and the states ratified the
Eleventh Amendment overruling Chisolm and "restor[ing] the
9 A-3357-12T3
original constitutional design" of state sovereign immunity.
Alden, supra, 527 U.S. at 722, 119 S. Ct. at 2251, 144 L. Ed. 2d
at 658. The Eleventh Amendment has since been interpreted to
prohibit a state from being sued in federal court by citizens of
its own state, or citizens of a sister-state. Id. at 712-13,
119 S. Ct. at 2246, 144 L. Ed. 2d at 652; Hans v. Louisiana, 134
U.S. 1, 10-11, 10 S. Ct. 504, 505-06, 33 L. Ed. 842, 845-46
(1890).
There are two recognized exceptions to state sovereign
immunity that could allow a state to be subject to suit in
federal court despite its Eleventh Amendment protection. First,
Congress may abrogate state sovereign immunity pursuant to its
powers under the Fourteenth Amendment. Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 670, 119 S.
Ct. 2219, 2223, 144 L. Ed. 2d 605, 613 (1999). Second, a state
can consent to be sued in federal court. Clark v. Barnard, 108
U.S. 436, 447-48, 2 S. Ct. 878, 883, 27 L. Ed. 780, 784-85
(1883). A state may make a "clear declaration" to submit itself
to federal court jurisdiction, Coll. Sav. Bank, supra, 527 U.S.
at 676, 119 S. Ct. at 2226, 144 L. Ed. 2d at 616 (citation and
internal quotation marks omitted), or it can waive its immunity
through its litigation conduct by removing a case to federal
court thereby invoking federal court jurisdiction, Lapides v.
10 A-3357-12T3
Bd. of Regents, 535 U.S. 613, 624, 122 S. Ct. 1640, 1646, 152 L.
Ed. 2d 806, 816 (2002).
Federal Rule of Civil Procedure 12(b)(1) allows the filing
of a "motion to dismiss for lack of subject matter jurisdiction
because of state sovereign immunity." Meyers v. Texas, 410 F.3d
236, 240 (5th Cir. 2005), cert. denied, 550 U.S. 917, 127 S. Ct.
2126, 167 L. Ed. 2d 862 (2007). The United States Supreme Court
permits states to make Eleventh Amendment arguments at any time.
See Calderon v. Ashmus, 523 U.S. 740, 745 n.2, 118 S. Ct. 1694,
1697, 140 L. Ed. 2d 970, 977 (1998) (noting that the Eleventh
Amendment "can be raised at any stage of the proceedings").
ii.
Although the Eleventh Amendment pertains to state sovereign
immunity in federal court, it is well-established that states
enjoy sovereign immunity from suit in their own courts and may
define the scope of that immunity. See Alden, supra, 527 U.S.
at 738, 119 S. Ct. at 2258, 144 L. Ed. 2d at 668 (indicating
that "the immunity of a truly independent sovereign from suit in
its own courts has been enjoyed as a matter of absolute right
for centuries. Only the sovereign's own consent could qualify
the absolute character of that immunity" (citation and internal
quotation marks omitted)). Alden further held that because of
this immunity, Congress does not have the power "to subject
11 A-3357-12T3
nonconsenting States to private suits in their own courts[.]"
Id. at 737, 119 S. Ct. at 2258, 144 L. Ed. 2d at 668.
New Jersey courts "have long recognized that an essential
and fundamental aspect of sovereignty is freedom from suit by
private citizens for money judgments absent the State's
consent." Allen v. Fauver, 167 N.J. 69, 73-74 (2001). State
sovereign immunity is a "right that goes to the essence of
federalism: the right of a state not to be subjected to
nonconsensual suit under" a federal statute in either federal or
state courts. Id. at 77. Under New Jersey precedent,
legislative consent to suit is "integral to [the] waiver of
sovereign immunity." Id. at 74-75 (citing the Legislature's
enactment of the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-
3, and the Contractual Liability Act ("CLA"), N.J.S.A. 59:13-1
to -10, in response to the Court's decisions in P, T & L Constr.
Co. v. Comm'r, Dep't of Transp., 55 N.J. 341, 343-46 (1970) and
Willis v. Dep't of Conservation & Econ. Dev., 55 N.J. 534, 537-
40 (1970), which expanded the State's liability in contract and
tort). Unlike the State's sovereign immunity from suit in
federal court, there is no New Jersey case law declaring that
the State can waive its immunity from suit in state court
through litigation conduct.
12 A-3357-12T3
iii.
We review de novo an order disposing of a motion to dismiss
for lack of subject matter jurisdiction based on contentions of
state sovereign immunity. See Santiago v. N.Y. & N.J. Port
Auth., 429 N.J. Super. 150, 156 (App. Div. 2012) (analyzing the
Port Authority's claim of sovereign immunity under R. 4:6-2(a)),
certif. denied, 214 N.J. 175 (2013). Subject matter
jurisdiction can neither be conferred by agreement of the
parties nor waived as a defense, and a court must dismiss the
matter if it determines that it lacks subject matter
jurisdiction. Macysyn v. Hensler, 329 N.J. Super. 476, 481
(App. Div. 2000) (indicating that such a motion can be made "at
any time"); see also R. 4:6-7; Pressler & Verniero, Current N.J.
Court Rules, comment 1 on R. 4:6-7 (2015).
B.
It is against this legal framework that we consider whether
state sovereign immunity precludes plaintiff's ADA claim and, if
it does, whether that immunity extends to defendants as an arm
of the State. We conclude that the State of New Jersey has
immunity from suit under the ADA and that this immunity extends
to defendants.
13 A-3357-12T3
i.
The United States Supreme Court declared in Board of
Trustees of the University of Alabama v. Garrett, 531 U.S. 356,
374, 121 S. Ct. 955, 967-68, 148 L. Ed. 2d 866, 883-84 (2001),
that Congress does not have the constitutional authority to
abrogate state sovereign immunity in federal court as to
employment claims under the ADA. This is because "[s]tates are
not required by the Fourteenth Amendment to make special
accommodations for the disabled, so long as their actions
towards such individuals are rational." Id. at 367, 121 S. Ct.
at 964, 148 L. Ed. 2d at 879. Thus, Congress cannot use its
Fourteenth Amendment powers to compel states to be subject to
lawsuits in federal court under the ADA.
Even though Congress cannot act, a state could voluntarily
consent to be sued on an ADA claim in either state or federal
court. See Alden, supra, 527 U.S. at 737, 119 S. Ct. at 2258,
144 L. Ed. 2d at 668 (noting a state can consent to "private
suits in their own courts"). However, there are no "clear and
unequivocal statements" of the New Jersey Legislature which have
declared that the State has consented to be sued under the ADA.
Cf. Allen, supra, 167 N.J. at 73-77 (holding that suits under
the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201 to 219,
are precluded against the State because the Legislature has not
14 A-3357-12T3
consented to be sued under the FLSA). Thus, we must conclude
that absent clear and unequivocal consent by the State
Legislature, the State has retained its sovereign immunity
against plaintiff's ADA claim.
ii.
We conclude that the State's sovereign immunity extends to
defendants on plaintiff's ADA claim because defendants are
considered an "arm of the State." Alden, supra, 527 U.S. at
756-57, 119 S. Ct. at 2267-68, 144 L. Ed. 2d at 679-80 (noting
that sovereign immunity "bars suits against States but not
lesser entities" such as "a municipal corporation or other
governmental entity which is not an arm of the State"). We
reach this conclusion by applying a three-factor test enunciated
by the United States Court of Appeals for the Third Circuit in
Fitchik v. N.J. Transit Rail Ops., Inc., 873 F.2d 655, 659 (3d
Cir.) (en banc), cert. denied, 493 U.S. 850, 110 S. Ct. 148, 107
L. Ed. 2d 107 (1989).7
The Third Circuit explained that, in determining whether
immunity extends to a state entity, courts should consider:
(1) whether the money that would pay any judgment against the
7
Although we are not bound by lower federal court decisions, we
give such decisions due respect in an attempt to create
"judicial comity" and to avoid forum shopping. Deway v. R.J.
Reynolds Tobacco Co., 121 N.J. 69, 79-80 (1990).
15 A-3357-12T3
entity would come from the State; (2) the status of the entity
under state law, including its treatment under the law and
whether the entity is separately incorporated, whether the
entity can sue or be sued in its own right, or is immune from
state taxation; and (3) the entity's degree of autonomy from the
State. Ibid. The "most important" of the factors is "whether
the judgment would be paid by state funds." Id. at 664 (holding
that the New Jersey Transit Corporation was not an arm of the
State, in large part because it was not wholly funded by the
State and it set aside funds to pay its own judgments).
Here, defendants are clearly an arm of the State under the
Fitchik test. As to the first Fitchik factor, the NJSP is fully
funded by the State and, as a result, the State would be
obligated to satisfy any potential judgment against the NJSP
from the State's treasury. See L. 2014, c. 14, § 66
(appropriating $228,414,000 from the Fiscal Year 2014-2015
budget to the NJSP).
As to the second Fitchik factor, the NJSP is not a
separately incorporated entity. The NJSP is considered a
"principal department" within the State's Department of Law and
Public Safety. N.J.S.A. 52:17B-1. Our Constitution provides
that "[e]ach principal department shall be under the supervision
of the Governor . . . ." N.J. Const. art. V, § 4, ¶ 2.
16 A-3357-12T3
As to the third Fitchik factor, the NJSP has little
autonomy from the State. By statute, the Division of State
Police is to be headed by a superintendent, appointed by the
Governor with the advice and consent of the Senate, who "shall,
with the approval of the [G]overnor, make all rules and
regulations for the discipline and control of the state police."
N.J.S.A. 52:17B-7; 53:1-2 and -10. Moreover, the "members of
the State Police shall be subject to the call of the Governor"
and "shall be peace officers of the State." N.J.S.A. 53:2-1.8
Finally, Fuentes is not distinguishable from the NJSP and
is entitled to the same immunity. As our Supreme Court has
recently noted, an official sued as an individual is personally
liable for any judgment entered, but "[i]n contrast, an
official-capacity suit 'is not a suit against the official
[personally] but rather is a suit against the official's
office.'" Gormley v. Wood-El, 218 N.J. 72, 85 n.3 (2014)
(alteration in original) (quoting Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d
45, 58 (1989)). This is because damages awards against persons
8
We note that the Federal District Court of New Jersey has
consistently held that the NJSP is an "arm of the State." See,
e.g., Simmerman v. Corino, 804 F. Supp. 644, 650 (D.N.J. 1992),
aff'd, 16 F.3d 405 (3d Cir. 1993) (holding that it was "beyond
dispute" that the NJSP was an arm of the State).
17 A-3357-12T3
acting in their official capacity can be executed against the
State itself, which is the real party in interest. Ibid.; see
also E. Orange v. Palmer, 47 N.J. 307, 327 (1966) (noting that,
as to a sovereign immunity defense, the Court would "treat the
question as if the suit directed against the two State officers
were against the State itself").
C.
We now turn to whether the trial court properly determined
that defendants were estopped from raising the issue of state
sovereign immunity as to the ADA claim. We conclude that state
sovereign immunity cannot be waived by defendants and that
defendants were not estopped from arguing that they were
immunized as to plaintiff's ADA claim.
i.
The United States Supreme Court has recognized a "clos[e]
analogy" between state sovereign immunity at the state and
federal levels. Sossamon v. Texas, ___ U.S. ___, ___ n.4, 131
S. Ct. 1651, 1658, 179 L. Ed. 2d 700, 709 (2011) (alteration in
original) (citation and internal quotation marks omitted).
Thus, because of this close correlation, and our own
jurisprudence and court rules, we conclude that the issue of
state sovereign immunity can be raised at any time during the
18 A-3357-12T3
proceedings.9 See supra, Part II.A (noting that state sovereign
immunity is treated as a subject matter jurisdiction claim which
cannot be waived).
ii.
We also reject the assertion that defendants essentially
waived their state sovereign immunity through their litigation
conduct by "waiting over [seven] years [and until the]
completion of the trial."
As previously noted, a state can waive its immunity from
suit in federal court through its litigation conduct by removing
a case to federal court. Lapides, supra, 535 U.S. at 624, 122
S. Ct. at 1646, 152 L. Ed. 2d at 816. However, as the Court in
Lapides recognized, the distinction as to whether a state waives
its sovereign immunity through its litigation conduct lies in
whether the state "voluntarily" or "involuntarily" invoked
federal court jurisdiction. Id. at 622, 122 S. Ct. at 1645, 152
L. Ed. 2d at 815. Here, defendants did not seek a removal from
state court to federal court, or do anything other than appear
and defend against plaintiff's ADA claim. See Biomedical Patent
9
Although not binding on us, we find persuasive support from the
Supreme Court of Texas which explicitly recognizes that "the
defense of sovereign immunity from suit sufficiently implicates
subject matter jurisdiction" and thus the Texas Court concluded
"that the defense may be raised for the first time on appeal."
Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 530 (Tex.
2012).
19 A-3357-12T3
Mgmt. Corp. v. Cal., 505 F.3d 1328, 1339 (Fed. Cir. 2007)
(stating that a waiver by litigation conduct must be clear),
cert. denied, 555 U.S. 1097, 129 S. Ct. 895, 173 L. Ed. 2d 106
(2009). We do not deem defendants' appearance in this action to
be a clear voluntary invocation of the state court's general
jurisdiction.10
Precluding plaintiff's ADA claim also does not prejudice
plaintiff or give defendants a "litigation advantage." New
Hampshire v. Ramsey, 366 F.3d 1, 16-17 (1st Cir. 2004).
Plaintiff could have properly pursued a failure to accommodate
claim under the NJLAD, which he initially did, but then
dismissed this claim to pursue his CEPA claim. Precluding
recovery on his ADA claim, which would have substantially used
the same facts as his NJLAD claim, does not work unfair
prejudice on plaintiff because dismissing the ADA claim places
plaintiff in exactly the same position as a similarly-situated
plaintiff facing a timely asserted sovereign immunity defense.
10
Our Supreme Court's recent decisions have declined to endorse
encroachment into the State's sovereign immunity without a clear
indication of the Legislature's intent to consent to suit. See
Allen, supra, 167 N.J. at 75 (noting that rules of "strict
statutory construction" control regarding a statute that may
"derogate[] sovereignty"); see also Henebema v. S. Jersey
Transp. Auth., 219 N.J. 481, 490 (2014) (noting in the context
of claims under the TCA that "[g]enerally, immunity prevails
over liability to the extent that immunity has become the rule
and liability is the exception").
20 A-3357-12T3
In other words, he would have needed to establish his failure to
accommodate claim under the NJLAD or not at all.11 Here, because
plaintiff waited until trial to dismiss his NJLAD claim, his
proffer to the jury would have been substantially the same even
if the ADA claim had been dismissed sooner.
Because we conclude that defendants are immune from
liability from plaintiff's ADA claim, we need not reach
defendants' contentions that the judge erred by usurping the
jury and applying the wrong definition of "disabled" within the
meaning of the ADA and that plaintiff's ADA claim is
procedurally deficient because he failed to exhaust
administrative remedies.
III.
We reject defendants' arguments that plaintiff's job duties
precluded him from bringing a CEPA claim, and that he otherwise
failed to establish a prima facie CEPA violation.
A.
After reviewing the trial record extensively, we conclude
11
Plaintiff's request that we mold the ADA verdict into a NJLAD
verdict, by reinstating the award of $500,000 in damages for
emotional distress, is without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E). Plaintiff
dismissed his NJLAD failure to accommodate claim (depriving him
accessibility to a restroom), pursuant to the CEPA waiver
clause, because he conceded that his assignment to car
surveillance amounted to a claim of retaliation for
whistleblowing under CEPA.
21 A-3357-12T3
that defendants have overstated plaintiff's job responsibilities
and understated the nature of plaintiff's whistleblowing.
Plaintiff may properly pursue his CEPA claim because plaintiff's
complained of conduct occurred both inside and outside his job
description. Cf. Massarano v. N.J. Transit, 400 N.J. Super.
474, 490-92 (App. Div. 2008) (finding that the plaintiff could
not establish a CEPA claim because she was "merely doing her
job"); but see Lippman v. Ethicon, Inc., 432 N.J. Super. 378,
380-82 (App. Div. 2013) (holding that "an employee's job title
or employment responsibilities should [not] be considered
outcome determinative in deciding whether the employee has
presented a cognizable cause of action under CEPA"), certif.
granted, 217 N.J. 292 (2014).
As the judge correctly found, plaintiff was not simply
performing his job duties in making his repeated complaints.
Plaintiff "blew the whistle" while working in the EEO/AA Unit,
where his job duty at that time was to investigate the cases
assigned to him as a staff investigator. However, there is no
credible evidence in the record to suggest that plaintiff had
the responsibility to analyze the EEO/AA Unit as a whole or to
evaluate its purported general shortcomings.
Moreover, plaintiff's whistleblowing activity included more
than complaining about the alleged stalling of investigations in
22 A-3357-12T3
the EEO/AA Unit. He complained to Fuentes that the Office of
Professional Standards Unit, which was different from the EEO/AA
Unit, engaged in discriminatory discipline by treating African
American troopers more severely than white troopers for the same
or similar offenses. Therefore, plaintiff was not simply
investigating the cases assigned to him and reporting his
findings, as he was tasked to do, but rather, his complaints
went beyond his assigned cases and department.
B.
We also conclude that plaintiff sufficiently established a
prima facie case of a CEPA violation to reach the jury.
To state a prima facie case of retaliation under NJLAD or
CEPA, a "plaintiff must show that 1) [he or] she was engaged in
a protected activity known to defendant; 2) [he or] she was
thereafter subjected to an adverse employment decision by the
defendant; and 3) there was a causal link between the two."
Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App.
Div. 1996); see also Young v. Schering Corp., 275 N.J. Super.
221, 233 (App. Div. 1994), aff'd, 141 N.J. 16 (1995); Jamison v.
Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div.
1990).
Failing to promote an employee can constitute an adverse
employment action. Jamison, supra, 242 N.J. Super. at 447. If
23 A-3357-12T3
the employee succeeds in establishing a prima facie case of
retaliation, the burden shifts to the employer to articulate a
legitimate non-retaliatory reason for the adverse action. Ibid.
The plaintiff is then "afforded a fair opportunity" to show that
the reason given "is a pretext for the retaliation or that a
discriminatory reason more likely motivated the employer."
Ibid. If plaintiff succeeds, a presumption of retaliatory
intent is established. Id. at 445-46.
In a failure-to-promote context, the employer then "must
prove by a preponderance of the evidence that the adverse action
would have taken place regardless of the retaliatory motives of
the employer." Id. at 447. "At that point, the employer's
proofs must focus on the qualifications of the other
candidates." Ibid. The Jamison court noted, "[b]y shifting the
burden of proof, the responsibility is allocated to the party
best able to marshal evidence and prove qualifications of other
candidates." Ibid. This burden-shifting approach protects
employees who engage in protected activities but does not place
them in a better position than they would be otherwise. Ibid.
The parties here tried this case understanding that the
statute of limitations period on plaintiff's CEPA claim began on
September 1, 2004. To support plaintiff's retaliation claim
based on a failure to promote, plaintiff was required to produce
24 A-3357-12T3
evidence of a discrete retaliatory act occurring after September
1, 2004.12 It is undisputed that plaintiff's whistleblowing
activities, however, occurred prior to that date.
As our Supreme Court explained in Roa v. Roa, 200 N.J. 555,
561 (2008), "[a]lthough not actionable, evidence relating to
barred claims may be admissible under N.J.R.E. 404(b) in the
trial of the timely claim." Therefore, a plaintiff can use
evidence of retaliatory actions connected to time-barred claims
"'as background evidence in support of a timely claim.'" Id. at
567 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106, 122 (2002)).
Here, the jury properly considered the memo and other
events prior to September 1, 2004, as background evidence for
retaliation that occurred within the limitations period. The
judge correctly instructed the jury that, in determining
liability, it could only consider acts of retaliation occurring
after September 1, 2004. The judge identified for the jury
examples of retaliatory acts that generally occurred, at least
in part, after September 1, 2004, such as plaintiff's assignment
to car surveillance in 2006, and the October 2004 investigation
12
At trial, the judge did not treat the CEPA claim as a
continuing violation. Instead, the judge imposed a strict
limitations period. Plaintiff's counsel did not object to the
limitations period commencing on September 1, 2004, and he has
not cross-appealed challenging it.
25 A-3357-12T3
report resulting in mainly unsubstantiated allegations of
wrongdoing.
There is evidence from which a jury could determine
inferentially that plaintiff had been passed over for two
discrete promotions while he served under a bureau chief (the
"bureau chief") of the CTU, where plaintiff worked from May 2004
to September 2005. Plaintiff testified that he was doing well
in the CTU and that he "had risen to the number one spot for a
promotion" before the bureau chief arrived in late 2004. In
February 2005, the NJSP passed over plaintiff by promoting
another individual to acting sergeant first class. In June
2005, the bureau chief, who was a special advisor to Fuentes and
was familiar with plaintiff's whistleblowing activity and
"pending EEOA matter," ranked the members under his command and
gave plaintiff a low ranking. As a result, plaintiff was not
promoted to DSFC at that time. And, there was evidence from
which the jury could have concluded that, had plaintiff been
promoted in June 2005, he would have been promoted one more time
before the end of his career.
IV.
Although plaintiff established a prima facie CEPA claim,
the CEPA verdict is so fatally flawed that the judgment must be
vacated and the matter remanded for a new trial on all issues
26 A-3357-12T3
related to plaintiff's CEPA claim.
A.
First, we conclude that the judge erred by not giving a
meaningful limiting instruction to the jury about how to use the
evidence that plaintiff introduced of alleged racial
discrimination. Plaintiff used this evidence to support his
NJLAD claim. The omission of such an instruction had the clear
capacity to lead to an unjust result.
During his case-in-chief, plaintiff introduced evidence of
alleged racial discrimination unrelated to plaintiff's
whistleblowing activities. In fact, the opening statements of
both counsel stressed the existence of pervasive racial
discrimination within the NJSP. There was also considerable
testimony regarding defendants' alleged racial discrimination,
which was admitted without objection because it was relevant to
the NJLAD claim that remained viable until the close of
plaintiff's case.
At the close of all the evidence, defendants' counsel asked
whether the judge would instruct the jury that the race
discrimination claim was no longer in the case. The judge
declined to do so, but stated that defense counsel could inform
the jury that "whatever you heard about discrimination is no
longer a part of this case. . . ."
27 A-3357-12T3
The judge partially instructed the jurors that "in
addition, some causes of action are no longer a part of this
case. And as a result of it, the document that was previously
admitted into evidence, that was known as P-14,13 is no longer
evidence and may not be considered by you." The jury was not
told by the judge which claims were dismissed by the end of the
case, and it was not fully instructed on how to consider the
complaint of disparate treatment for the CEPA claim.
Under these circumstances, the jury may well have thought
that it was free to consider all of the testimony regarding
racial discrimination in its deliberations for any purpose and
that the only thing they had to disregard was P-14. See State
v. Vallejo, 198 N.J. 122, 137 (2009) (finding that when the jury
instruction was inadequate, an appellate court has "no
alternative but to assume that the jurors took into account all
of what transpired at trial"). Thus, the failure to give an
adequate limiting instruction had the clear capacity to lead to
an unjust result. Agha v. Feiner, 198 N.J. 50, 63 n.3 (2009);
see also Catalane v. Gilian Instrument Corp., 271 N.J. Super.
476, 501 (App. Div.) (vacating jury award and remanding for a
new trial "because the jury instruction was erroneous and
13
P-14 appears to be a redacted attorney-client memorandum.
28 A-3357-12T3
inadequate"), certif. denied, 136 N.J. 298 (1994).14
B.
Second, we conclude that the judge failed to give an
adequate jury instruction on the calculation of damages related
to plaintiff's failure-to-promote allegations.
When reviewing a jury award, we are empowered to set aside
the jury's verdict and grant a new trial when "it clearly and
convincingly appears that a damages award is so excessive that
it constitutes a miscarriage of justice." Johnson v. Scaccetti,
192 N.J. 256, 280 (2007) (citation and internal quotation marks
omitted).
Here, plaintiff's CEPA economic-damages award was
necessarily predicated on acts of retaliation that were time-
barred. If the jury believed plaintiff's evidence and gave all
possible inferences in plaintiff's favor, it could have
concluded that he would have been promoted in June 2005 if he
had not been the subject of retaliation. Plaintiff's counsel
told the jury that plaintiff was "eligible for a promotion" in
April 2004 and that, in calculating damages, they should
determine that his salary would have increased on October 1,
2004. Although the judge told the jury that it could not rely
14
Therefore, we need not reach defendants' remaining arguments
pertaining to other purported trial errors.
29 A-3357-12T3
on retaliation occurring prior to September 1, 2004, the jury
was not informed that it needed to find a specific failure to
promote within the limitations period and to base any damages
calculation from the date plaintiff would have started that new
position.
The jury plainly calculated damages for failure to promote
for the entire period sought by plaintiff, as it awarded more
money in each category of economic damages than plaintiff
requested. Plaintiff's counsel argued that plaintiff's damages,
calculated from October 2, 2004, forward, consisted of $51,208
in lost wages and $263,200 in lost pension benefits. The jury
actually awarded damages of $55,000 in lost wages and $305,000
in lost pension benefits. The jury could not have reached these
numbers based on the promotions that were arguably supported by
the evidence, namely to DSFC in June 2005, and to lieutenant two
to three years after that.
C.
Finally, the award of emotional-distress damages on
plaintiff's CEPA claim was also compromised by the jury charge
and plaintiff's counsel's comments in summation.
Plaintiff's counsel told the jury during closing argument
that, in addition to economic damages, plaintiff was seeking
"[d]amages for emotional distress accompanied by the stress that
30 A-3357-12T3
affected his ulcerative colitis." Plaintiff had testified that
stress exacerbated his condition and that stress from the bureau
chief's actions resulted in hospitalization. The parties
agreed, however, that there was no claim that defendants caused
plaintiff's ulcerative colitis. As a result, the jury may have
included, as part of its emotional distress calculation, damages
for pain and suffering associated with plaintiff's underlying
medical condition.
The comments by plaintiff's counsel in summation were
further complicated by the jury charge. The judge's charge on
non-economic damages essentially tracked the model jury charge.
See Model Jury Charge (Civil), 8.11E "Disability, Impairment and
Loss of the Enjoyment of Life, Pain and Suffering" (2009).
Because that charge encompasses physical limitations and
physical pain and suffering as well as emotional distress, the
judge instructed the jury that plaintiff would be entitled to
recover "for any injury resulting in . . . an impairment of
his . . . health, or ability to participate in activities," and
that "proper items for recover[y]" include "any pain, physical
or mental suffering, discomfort, and distress that the plaintiff
may have endured as a natural consequence of the violations of
CEPA." This contradicts the stipulation that there was no claim
that defendants caused plaintiff's ulcerative colitis.
31 A-3357-12T3
We vacate the ADA award, dismiss plaintiff's ADA claim with
prejudice, and remand for further proceedings on plaintiff's
CEPA claim consistent with this opinion. We do not retain
jurisdiction.
32 A-3357-12T3