Brian Royster v. New Jersey State Police(075926)

SYLLABUS

(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
interest of brevity, portions of any opinion may not have been summarized.)

Brian Royster v. New Jersey State Police (A-1-15) (075926)

Argued September 12, 2016 -- Decided January 17, 2017

Solomon, J., writing for a majority of the Court.

In this appeal, the Court determines whether the New Jersey State Police (NJSP), by waiting to assert the
defense of sovereign immunity until a jury verdict was returned against it in a suit brought by plaintiff Brian
Royster, either waived the defense through its litigation conduct or is estopped from asserting the defense of
sovereign immunity.

Royster suffers from ulcerative colitis, which requires that he have immediate access to restroom facilities
at his place of employment. After his return from a medical leave to treat this condition, Royster was assigned to
conduct surveillance from a car. Despite Royster’s repeated requests to be transferred to a position that provided
access to a restroom, the NJSP kept him on surveillance duty for around seven months.

Royster filed a complaint against the NJSP. Relevant to this appeal, Royster asserted that the NJSP failed
to make reasonable accommodations for his disabling medical condition in violation of the New Jersey Law Against
Discrimination (LAD) and the federal Americans with Disabilities Act (ADA). In addition, Royster complained of
retaliatory conduct in violation of the LAD, ADA, and New Jersey Conscientious Employee Protection Act (CEPA).

The trial court dismissed Royster’s sexual harassment and state constitutional claims upon the NJSP’s
motion for summary judgment. The court then dismissed Royster’s LAD claims as precluded by CEPA’s waiver
provision at the close of his case. Ultimately, only Royster’s CEPA retaliation claim and ADA failure-to-
accommodate claim reached the jury, which found in favor of Royster on both claims.

The NJSP then moved for judgment notwithstanding the verdict, asserting, for the first time, that the trial
court lacked subject matter jurisdiction over the ADA claim because the NJSP, as an arm of the State, enjoyed
sovereign immunity. Royster argued that it was fundamentally unfair to allow the NJSP to raise the sovereign
immunity defense after the jury’s verdict. Royster asked the court to retroactively convert the ADA claim back into
a LAD claim on the ground that the claims and arguments under both statutes are identical.

The trial court denied Royster’s request, but also denied the NJSP’s motion for judgment notwithstanding
the verdict, holding that the NJSP was “estopped from asserting lack of jurisdiction after waiting over 7 years [and]
completion of the trial.”

The NJSP appealed, and the Appellate Division reversed the judgment of the trial court in a published
decision. The panel reasoned that, because the State’s sovereignty extended to the NJSP, the defense of sovereign
immunity could be raised at any time.

The Court granted Royster’s petition for certification, limited to the issues of whether the NJSP was
entitled to sovereign immunity on Royster’s claim under the ADA and whether the NJSP waived that immunity.

HELD: The Court agrees with the Appellate Division that sovereign immunity precludes Royster’s ADA claim. The
NJSP’s litigation conduct did not amount to a waiver of immunity, nor is the NJSP estopped from asserting the defense
of sovereign immunity against Royster’s ADA claim. However, the interests of justice require reinstatement of
Royster’s LAD failure-to-accommodate claim. The Court reinstates the LAD claim and remands to the trial court to
mold the jury’s verdict and enter judgment on Royster’s LAD claim in favor of Royster and against the NJSP in the
amount of $500,000.
1. Both in New Jersey and at the federal level, a state may voluntarily waive its sovereign immunity. While a clear
and unequivocal expression is the hallmark of an effective waiver of sovereign immunity, the United States Supreme
Court has also recognized that waiver can be premised on litigation conduct, as when a state chooses to voluntarily
remove a case to federal court. Unlike their federal counterparts, New Jersey courts have never declared that the
State may waive its immunity from suit in state court through its litigation conduct. (pp. 11-14)

2. The Court cannot nullify sovereign immunity for federal claims under the ADA, regardless of the State’s
inexplicable delay in raising the defense. Thus, because the Legislature has provided no clear and unequivocal
expression of consent to be sued under the ADA, the NJSP enjoys sovereign immunity from Royster’s ADA claim.
The NJSP’s litigation conduct did not amount to a waiver of immunity because the NJSP did not invoke the court’s
jurisdiction or do anything other than appear and defend against Royster’s ADA claim. (pp. 14-15)

3. Neither the United States Supreme Court nor this Court has ever applied equitable estoppel to the defense of
sovereign immunity. Even if equitable estoppel could be applicable to the defense of sovereign immunity, the Court
would reject its application here because there was no misrepresentation of material fact by one party or
unawareness of the true facts by the party seeking an estoppel. (pp. 15-16)

4. The Court next considers whether Royster’s LAD failure-to-accommodate claim, which was identical to his
ADA failure-to-accommodate claim, was improvidently dismissed. The Court concludes that confusion and
miscommunication played a substantial role in the dismissal of the LAD failure-to-accommodate claim. (pp. 16-18)

5. The LAD statute contains a clear and unequivocal waiver of sovereign immunity because it defines employers as
including “the State, any political or civil subdivision thereof, and all public officers, agencies, boards, or bodies.”
N.J.S.A. 10:5-5(e). Because the NJSP is precluded from asserting immunity as a defense to Royster’s LAD claim,
only CEPA’s waiver provision could bar Royster’s LAD claim here. (pp. 18-19)

6. CEPA provides that “the institution of an action in accordance with this act shall be deemed a waiver of 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. This provision does not apply to those causes of action that are
substantially independent of the CEPA claim. (p. 19)

7. Here, the LAD failure-to-accommodate claim was identical to the ADA claim that survived a motion for a
directed verdict. Because there was sufficient evidence to support Royster’s identical ADA claim, the LAD claim
should have survived the directed-verdict motion, as it was not precluded by CEPA. (pp. 19-22)

8. The Court considers the remedial nature of the LAD. While the Court does not find that the NJSP’s belated
assertion of sovereign immunity was made in bad faith, it concludes that the interests of justice require reinstatement
of Royster’s LAD failure-to-accommodate claim. The same proofs were presented to the jury to support both
claims, so the Court remands to the trial court to mold the jury’s award of damages on Royster’s ADA claim to an
award of $500,000 under the LAD—the full amount of damages awarded by the jury without application of the
ADA’s $300,000 cap on damages. (pp. 22-23)

JUSTICE ALBIN, CONCURRING IN PART AND DISSENTING IN PART, concurs in the judgment
but expresses the view that the State’s litigation conduct constituted a waiver of sovereign immunity. Sovereign
immunity finds its source in the common law, and the common law adapts to changing circumstances to advance
notions of fair play and equity. In Justice Albin’s view, holding that a state’s litigation conduct may constitute an
exception to the doctrine of sovereign immunity would be a reasonable and fair adaptation of the common law.
Accordingly, Justice Albin dissents from the majority’s rejection of a litigation-conduct exception.

The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the trial court for proceedings consistent with this opinion.

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’s opinion. JUSTICE ALBIN filed a separate, partially CONCURRING and partially
DISSENTING opinion, in which CHIEF JUSTICE RABNER joins.

2
 SUPREME COURT OF NEW JERSEY
A-1 September Term 2015
075926

BRIAN ROYSTER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE and
JOSEPH R. FUENTES,

Defendants-Respondents,

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 September 12, 2016 – Decided January 17, 2017

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 439 N.J. Super. 554 (App. Div.
2015).

Michael J. Reimer argued the cause for
appellant.

1
 Michael C. Walters, Assistant Attorney
General, argued the cause for respondents
(Christopher S. Porrino, Attorney General of
New Jersey, attorney; Lisa A. Puglisi,
Assistant Attorney General, and Ralph R.
Smith, III, of counsel, Mr. Smith, Benjamin
H. Zieman, Deputy Attorney General, and
Laurel B. Peltzman, on the briefs).

JUSTICE SOLOMON delivered the opinion of the Court.

In this appeal, we are called upon to determine whether the

New Jersey State Police (NJSP), by waiting to assert the defense

of sovereign immunity until a jury verdict was returned against

it in this discrimination action, either waived through its

litigation conduct or is estopped from asserting the defense of

sovereign immunity.

Plaintiff Brian Royster filed a complaint against his

employer, the NJSP, alleging several racial and disability

discrimination claims. Plaintiff asserted that the NJSP failed

to make reasonable accommodations for his disabling medical

condition -- ulcerative colitis -– in violation of the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42,

and the federal Americans with Disabilities Act (ADA), 42

U.S.C.A. §§ 12101 to 12213. In addition, plaintiff complained

of retaliatory conduct in violation of the LAD, ADA, and New

Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 to -14.

2
 At the close of plaintiff’s case, the trial court

categorically dismissed all of the LAD claims as precluded by

CEPA’s waiver provision, N.J.S.A. 34:19-8. Following summation,

the jury returned a verdict in favor of plaintiff on the

remaining ADA and CEPA claims. The NJSP subsequently moved for

judgment notwithstanding the verdict, invoking sovereign

immunity to bar plaintiff’s ADA claim. The trial court denied

the motion and found that defendant was estopped from asserting

sovereign immunity after the jury’s verdict.

The Appellate Division reversed, holding that sovereign

immunity can be raised at any time, even after a trial has

concluded. The panel also rejected the notion that the NJSP was

estopped from asserting or waived the defense of sovereign

immunity through its litigation conduct.

We agree with the Appellate Division that sovereign

immunity precludes plaintiff’s ADA claim. We conclude, however,

that his LAD claim for failure to provide reasonable

accommodations was improvidently dismissed. As a result, we

reinstate the LAD claim and remand to the trial court with

instructions to mold the jury’s verdict and enter judgment on

plaintiff’s LAD claim in favor of plaintiff and against the NJSP

in the amount of $500,000.

3
 We distill the following pertinent facts from the trial

record.

Plaintiff suffers from ulcerative colitis, which requires

that he have immediate access to restroom facilities at his

place of employment. He has an extensive history of

hospitalizations to treat this condition, necessitating periodic

medical leave from his employment with the NJSP.

Shortly after returning from a medical leave, plaintiff was

assigned to an Organized Crime Task Force, which required him to

conduct surveillance from a car. Despite plaintiff’s repeated

requests to be transferred to a position that provided access to

a restroom, the NJSP kept him on the task force for the seven-

month duration of the assignment.

In his fourth amended complaint, plaintiff alleged a

continuous and systematic practice of discrimination by the

NJSP.1 He alleged that because of his race and disabling medical

condition he was subjected to demeaning remarks and punitive

employment actions, including demotions, transfers, and denial

of promotions. Plaintiff asserted nine counts of hostile work

1 In addition to the NJSP, plaintiff listed as defendants
seventeen separately named individuals. The Appellate Division
refers to “defendants” in its opinion because the CEPA
retaliation claim was also asserted against the NJSP
Superintendent, Colonel Joseph Fuentes. In this appeal,
however, the NJSP is the only relevant defendant. Therefore,
when appropriate, we will use the singular, referring only to
the NJSP.
4
environment, failure to promote, workplace retaliation, and

sexual harassment. Most counts alleged some combination of

violations of the LAD, ADA, CEPA, and State Constitution. In

count seven of the complaint, entitled “AMERICANS WITH

DISABILITIES ACT AND NJLAD,” plaintiff claimed that the NJSP

knew of his ulcerative colitis and failed to make a good faith

effort to comply with his requests for a reasonable

accommodation, which could have been achieved by simply

transferring him to a position with access to a restroom.

The defendants collectively moved for summary judgment. In

a fifty-one-page opinion, the trial court dismissed plaintiff’s

sexual harassment and state constitutional claims against

various defendants, but preserved the claims against the NJSP.

The following seven claims remained: “LAD: hostile work

environment; LAD: discrimination in promotions; LAD:

retaliation; CEPA: retaliation; failure to accommodate under ADA

and LAD; ADA: hostile work environment; [and] ADA retaliation.”

The case proceeded to trial.

At the close of plaintiff’s case, defendants moved for a

directed verdict, asserting that plaintiff had not presented

prima facie evidence of any of his remaining employment

discrimination claims. To resolve the motion, it was necessary

for the trial court to consider CEPA’s preclusion of any other

“causes of action that require a finding of retaliatory conduct
5
that [would be] actionable under CEPA.” Young v. Schering

Corp., 141 N.J. 16, 29 (1995); see also N.J.S.A. 34:19-8

(requiring 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”). Accordingly, the trial court reviewed the “conduct the

plaintiff [wa]s relying on for the CEPA [retaliation] claim, so

[it] could carve that out from the LAD [retaliation] claim and

the ADA [retaliation] claim.”

The trial court began by evaluating the race-based CEPA and

LAD retaliation claims. The CEPA claim was supported by

plaintiff’s allegation that he was passed over for a promotion

because he “blew the whistle” on the Equal Employment

Opportunity/Affirmative Action (EEO/AA) Unit for failing to

timely investigate certain matters. Plaintiff’s attorney

admitted that CEPA, at that juncture, was at “the heart of

plaintiff’s claim.” In response, the court inquired whether all

of the facts regarding promotions were relevant only to the CEPA

claim.

Referencing a low evaluation rating, a demotion, and that a

white male received a promotion for which plaintiff qualified,

plaintiff’s counsel represented that the LAD claims were

premised on facts distinct from the whistleblowing activity with

the EEO/AA Unit. The trial court, however, was not persuaded:
6
it ruled that a prima facie case had not been established for

the LAD retaliation, LAD discrimination-in-promotions, or LAD

hostile-work-environment claims. The court reasoned that the

only facts that could support a LAD retaliation or

discrimination-in-promotions claim already supported the CEPA

retaliation claim.

The trial court, therefore, dismissed the LAD retaliation

and discrimination-in-promotions claims as precluded by CEPA’s

waiver provision, ostensibly leaving the following claims: CEPA

retaliation, failure to accommodate under the LAD and ADA, ADA

hostile work environment, and ADA retaliation. However, the

following exchange then occurred:

THE COURT: Is there anything further on the
Law Against Discrimination? That’s it.
Right?

[PLAINTIFF’S ATTORNEY]: Yes.

THE COURT: Now are you making a motion to
dismiss on ADA grounds other than the --

[DEFENSE ATTORNEY]: Yes. Are all the LAD
claims gone, Your Honor, retaliation?

THE COURT: That’s all I had, is there any
other? That’s all dismissed.

[DEFENSE ATTORNEY]: And you asked me about
the ADA.

It appears from this colloquy that the LAD failure-to-

accommodate claim was also dismissed, even though its factual

basis had not been discussed. Indeed, even the ADA claims
7
involving discrimination on the basis of plaintiff’s disability

were only briefly mentioned by plaintiff’s counsel to advise the

court that, unlike CEPA, the ADA did not have a waiver

provision:

THE COURT: Yes, well you’re saying that the
CEPA and ADA can overlap?

[PLAINTIFF’S ATTORNEY]: There’s nothing in
ADA that would suggest otherwise. As a matter
of fact it talks about the ADA charges[;] it
talks about retaliation.

THE COURT: Well LAD also talks about
retaliation.

Ultimately, only two of plaintiff’s claims against the NJSP

survived and were considered by the jury -- the CEPA retaliation

claim and the ADA failure-to-accommodate claim. On both, the

jury returned a verdict in favor of plaintiff. The jury awarded

him $500,000 in damages for defendant’s failure to accommodate

under the ADA, which the judge capped at $300,000, pursuant to

42 U.S.C.A. § 1981a(b)(3)(D).

Following the jury’s decision, defendant moved for judgment

notwithstanding the verdict. It asserted, for the first time,

that the trial court lacked subject matter jurisdiction over the

ADA claim because the NJSP, as an arm of the State, enjoyed

sovereign immunity.

Counsel for plaintiff argued that it was fundamentally

unfair to allow defendant to raise the sovereign immunity

8
defense after the jury’s verdict. Although plaintiff’s counsel

could not point to any legal precedent supporting reinstatement

of a voluntarily dismissed claim, he asked the court to

retroactively convert the ADA claim back into a LAD claim.

Counsel argued, “No facts would have changed, no argument would

have changed, no issue would have changed, no testimony would

have changed, no charge would have changed. Nothing at all

would have changed except the letters ADA to LAD on the jury

instruction sheet.”

The trial court denied counsel’s request, but also denied

defendant’s motion for judgment notwithstanding the verdict,

holding that defendant was “estopped from asserting lack of

jurisdiction after waiting over 7 years [and] completion of the

trial.”2 Defendant appealed.

The Appellate Division reversed the trial court and held

“that the doctrine of state sovereign immunity precludes

plaintiff’s ADA claim, even though defendant[] did not fully

raise that argument until [its] motion for a judgment

notwithstanding the verdict . . . .”3 Royster v. N.J. State

2 Plaintiff filed his first complaint in this matter in September
2005. Thus, by the time the trial concluded, approximately
seven years had passed.

3 The panel also held that, “[a]lthough 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 related to plaintiff’s CEPA claim.”
9
Police, 439 N.J. Super. 554, 561 (App. Div. 2015). The panel

reasoned that, because the State’s sovereignty extended to the

NJSP, the defense of sovereign immunity could be raised at any

time during the proceedings. Id. at 570-72.

We granted plaintiff’s petition for certification, limited

to the issues of whether defendant was entitled to sovereign

immunity on plaintiff’s claim under the ADA and whether

defendant waived that immunity. Royster v. N.J. State Police,

223 N.J. 161 (2015).

In seeking reversal of the Appellate Division’s decision,

plaintiff does not dispute that the NJSP is an arm of the State

for purposes of sovereign immunity. Rather, plaintiff argues

that the Legislature’s waiver of sovereign immunity under the

LAD statute was an implicit waiver of sovereign immunity under

the ADA. Plaintiff further contends that the NJSP waived its

immunity in this case through its litigation conduct --

specifically by submitting the ADA claim to the jury. In

addition, plaintiff maintains that defendant is estopped from

asserting sovereign immunity because it gained a significant and

unfair litigation advantage by failing to raise the defense

Royster v. N.J. State Police, 439 N.J. Super. 554, 577 (App.
Div. 2015). That holding is not part of this appeal.
10
until after the trial concluded, obviating the jury’s award of

damages on his ADA failure-to-accommodate claim.

Plaintiff also posits that the LAD failure-to-accommodate

claim was improperly dismissed as precluded by the CEPA

retaliation claim because the facts supporting the former are

separate and distinct from those supporting the latter.

Therefore, plaintiff contends that he would have pursued the LAD

failure-to-accommodate claim had he known that defendant would

assert sovereign immunity. Plaintiff urges this Court to

reinstate the claim because the ADA and the LAD failure-to-

accommodate claims are identical and implicate the same facts.

Defendant emphasizes that only the State may define the

extent of its own sovereign immunity. Defendant also stresses

that sovereign immunity is a well-established defense to ADA

claims in federal courts, and that plaintiff could have pursued

both the LAD and ADA claims for failure to provide reasonable

accommodations. Defendant argues that, even if the doctrine of

estoppel is applied to the State, it should not be estopped here

from raising the defense of sovereign immunity because plaintiff

voluntarily dismissed his LAD claim.

Defendants’ motion for judgment notwithstanding the verdict

raises a question of law –- the applicability of sovereign

immunity -- that we review de novo. Raspa v. Office of Sheriff
11
of Cty. of Gloucester, 191 N.J. 323, 334-35 (2007). Thus, the

Appellate Division’s “interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference.” Ibid. (quoting Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

A.

We begin our review by examining sovereign immunity

jurisprudence and how the sovereign immunity defense may be

waived through the State’s litigation conduct.

“[A]s the Constitution’s structure, and its history, and

the authoritative interpretations by [the United States Supreme]

Court make clear, the States’ immunity from suit is a

fundamental aspect of the[ir] sovereignty . . . .”4 Alden v.

Maine, 527 U.S. 706, 713, 119 S. Ct. 2240, 2246, 144 L. Ed. 2d

636, 652 (1999). New Jersey has “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).

Both in New Jersey and at the federal level, a state may

voluntarily waive its sovereign immunity. Coll. Sav. Bank v.

4
This has “sometimes [been] referred to . . . as ‘Eleventh
Amendment immunity.’” Alden v. Maine, 527 U.S. 706, 713, 119 S.
Ct. 2240, 2246, 144 L. Ed. 2d 636, 652 (1999). However,
sovereign immunity is “neither derive[d] from nor is limited by
the terms of the Eleventh Amendment.” Ibid.
12
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670,

119 S. Ct. 2219, 2223, 144 L. Ed. 2d 605, 613 (1999); Allen,

supra, 167 N.J. at 74. An effective waiver requires “a clear

and unequivocal statement of the Legislature.” Allen, supra,

167 N.J. at 77. For example, New Jersey has expressly waived

sovereign immunity for claims brought under the LAD. See

N.J.S.A. 10:5-5(e) (defining “[e]mployer” to include “the State,

any political or civil subdivision thereof, and all public

officers, agencies, boards, or bodies”). However, the United

States Supreme Court held that Congress’s attempt to abrogate

state sovereign immunity under Title I of the ADA was

unconstitutional. Bd. of Trs. of the Univ. of Ala. v. Garrett,

531 U.S. 356, 368, 374, 121 S. Ct. 955, 964-65, 967-68, 148 L.

Ed. 2d 866, 880, 883-84 (2001).

While a clear and unequivocal expression is the hallmark of

an effective waiver of sovereign immunity, the United States

Supreme Court has also recognized that waiver can be premised on

litigation conduct. Lapides v. Bd. of Regents, 535 U.S. 613,

624, 122 S. Ct. 1640, 1646, 152 L. Ed. 2d 806, 816 (2002). In

Lapides, the Court determined that when a state is involuntarily

brought into litigation in state court, it can choose to

voluntarily remove the case to federal court, thereby consenting

to the federal court’s jurisdiction and waiving immunity from

suit by its litigation conduct. Id. at 619, 122 S. Ct. at 1643,
13
152 L. Ed. 2d at 813 (citing Clark v. Barnard, 108 U.S. 436,

447, 2 S. Ct. 878, 883, 27 L. Ed. 780, 784 (1883) (holding that

a state’s “voluntary appearance” in federal court as an

intervenor avoids Eleventh Amendment inquiry)). Those

“purposeful[] requests [for] a federal forum . . . express[] a

clear intent to waive immunity from suit.” Lombardo v.

Pennsylvania, 540 F.3d 190, 197 (3d Cir. 2008). Unlike their

federal counterparts, New Jersey courts have never declared that

the State may waive its immunity from suit in state court

through its litigation conduct.

Here, the Appellate Division found that defendant did not

waive immunity through its litigation conduct because defendant

“did not seek a removal from state court to federal court, or do

anything other than appear and defend against plaintiff’s ADA

claim.” Royster, supra, 439 N.J. Super at 572-73. We agree.

We cannot nullify sovereign immunity for federal claims

under the ADA, regardless of the State’s inexplicable delay in

raising the defense. We agree with the Appellate Division, and

the parties do not dispute, that the NJSP is an arm of the State

under Fitchik v. New Jersey Transit Rail Operations, 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). Thus, because our

Legislature has provided no clear and unequivocal expression of

14
consent to be sued under the ADA, defendant enjoys sovereign

immunity from plaintiff’s ADA claim.

Additionally, we find that defendant’s litigation conduct

did not amount to a waiver of immunity because defendant did not

invoke the court’s jurisdiction or do anything other than appear

and defend against plaintiff’s ADA claim. That is not the kind

of purposeful conduct that is consistent with waiving the

defense of sovereign immunity.

B.

Plaintiff also argues that defendant’s belated assertion of

immunity resulted in an unfair litigation advantage and that the

NJSP should thus be estopped from asserting the defense of

sovereign immunity after the jury’s verdict.

We note, first, that equitable estoppel is a doctrine used

to prevent manifest injustice, but is “rarely invoked against a

governmental entity.” McDade v. Siazon, 208 N.J. 463, 480

(2011) (quoting County of Morris v. Fauver, 153 N.J. 80, 104

(1998)). Further, neither the United States Supreme Court nor

this Court has ever applied equitable estoppel to the defense of

sovereign immunity.

Even if equitable estoppel could be applicable to the

defense of sovereign immunity, we would reject its application

here. “[E]ssential to a finding of estoppel is a

misrepresentation of material fact by one party and an
15
unawareness of the true facts by the party seeking an estoppel.”

In re Johnson, 215 N.J. 366, 379 (2013) (quoting Horsemen’s

Benevolent & Protective Ass’n, N.J. Div. v. Atl. City Racing

Ass’n, 98 N.J. 445, 456 (1985)). Here, plaintiff was always

aware that defendant was an arm of the State, and defendant

never represented otherwise. Moreover, defendant did not

affirmatively represent that it had decided to waive its

immunity by simply defending the claims against it.

As a result, we conclude, as did the Appellate Division,

that defendant should not be estopped from asserting the defense

of sovereign immunity against plaintiff’s ADA claim.

IV.

A.

We next consider whether plaintiff’s LAD failure-to-

accommodate claim, which was identical to his ADA failure-to-

accommodate claim, was improvidently dismissed. In addressing

this question, we briefly review the procedural posture of this

claim.

Plaintiff’s LAD failure-to-accommodate claim accompanied

his parallel ADA claim. As the trial judge stated, plaintiff’s

fourth amended complaint was “not a model of clarity.”

Nonetheless, count seven, entitled “AMERICANS WITH DISBILITIES

ACT AND NJLAD,” was narrowly focused. This count involved

plaintiff’s transfer to a surveillance unit and, despite his
16
repeated requests, the NJSP’s failure to accommodate his

disabling medical condition by transferring him to a position

with restroom access.

Acknowledging that this claim implicated one set of facts

but two distinct statutes, the trial court’s summary judgment

opinion observed that a prima facie case for failure to

accommodate under both the ADA and LAD was identical. Notably,

in assessing the liability of each defendant, the judge

conducted one analysis under both statutes for “[f]ailure to

accommodate.” However, when defendant moved for a directed

verdict, the trial court separated the claims by statute: the

“Failure to Accommodate ADA and LAD” claim became an ADA

failure-to-accommodate claim and a LAD failure-to-accommodate

claim.

The trial court then applied CEPA’s waiver provision to the

CEPA retaliation, LAD retaliation, and LAD discrimination-in-

promotions claims. The CEPA claim involved plaintiff’s

allegation that he was passed over for a promotion because he

complained that the EEO/AA Unit failed to timely investigate

certain matters. The LAD failure-to-accommodate claim involved

plaintiff’s transfer to a surveillance unit and, despite his

repeated requests, the NJSP’s failure to accommodate his

disabling medical condition by transferring him to a position

with restroom access. Nevertheless, the judge concluded that
17
plaintiff had not established the additional facts necessary to

show that the LAD claims were separate and distinct from the

CEPA retaliation claim.

The judge and the parties appear to have overlooked the

claims based on disability discrimination, i.e., failure to

accommodate under the ADA and LAD, ADA retaliation, and ADA

hostile-work-environment claims. Without discussing any facts

related to disability discrimination, the judge mistakenly

dismissed the LAD failure-to-accommodate claim. “[B]ecause, in

the end, this record is a poor vehicle in which to find the

definitive answer” as to what exactly happened, Victor v. State,

203 N.J. 383, 422 (2010), we can conclude only that confusion

and miscommunication played a substantial role in the dismissal

of the LAD failure-to-accommodate claim.

B.

It is against this procedural backdrop that we analyze

whether plaintiff’s LAD failure-to-accommodate claim was

properly dismissed. We note that the LAD statute contains a

clear and unequivocal waiver of sovereign immunity because it

defines employers as including “the State, any political or

civil subdivision thereof, and all public officers, agencies,

boards, or bodies.” N.J.S.A. 10:5-5(e). Because defendant is

precluded from asserting immunity as a defense to plaintiff’s

18
LAD claim, only CEPA’s waiver provision could bar plaintiff’s

LAD claim here.

The CEPA waiver provision states:

Nothing in this act shall be deemed to
diminish the rights, privileges, or remedies
of any employee under any other federal or
State law or regulation or under any
collective bargaining agreement or employment
contract; except that the institution of an
action in accordance with this act shall be
deemed a waiver of 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 (emphasis added).]

This “provision applies only to those causes of action that

require a finding of retaliatory conduct that is actionable

under CEPA. The waiver exception does not apply to those causes

of action that are substantially independent of the CEPA claim.”

Young, supra, 141 N.J. at 29. The dismissed LAD claim at issue

was premised on the failure of the NJSP to accommodate

plaintiff’s ulcerative colitis, not retaliation; thus, CEPA’s

waiver provision was not a bar.

The LAD failure-to-accommodate claim was identical to the

ADA claim that survived a motion for a directed verdict. As

plaintiff’s attorney argued below in response to defendant’s

motion for judgment notwithstanding the verdict, “[n]o facts

would have changed, no argument would have changed, no issue

would have changed, no testimony would have changed, no charge
19
would have changed. Nothing at all would have changed except

the letters ADA to LAD on the jury instruction sheet.” We

agree.

The trial judge instructed the jury that, under the ADA,

plaintiff had to prove five elements: (1) he had a disability

within the meaning of the ADA; (2) he was a qualified individual

able to perform the essential functions of his job assignments;

(3) defendant was informed of the need for an accommodation due

to his disability; (4) providing the accommodation would have

been reasonable; and (5) defendant failed to provide the

accommodation of access to a restroom during work.

Although the LAD statute does not specifically address

failure to accommodate, “our courts have uniformly held that the

[LAD] nevertheless requires an employer to reasonably

accommodate an employee’s handicap.” Potente v. County of

Hudson, 187 N.J. 103, 110 (2006) (quoting Tynan v. Vicinage 13

of Superior Court, 351 N.J. Super. 385, 396 (App. Div. 2002)).

As the trial judge acknowledged in her summary judgment opinion,

“[t]he requirements for failure to accommodate claims under New

Jersey’s LAD have been interpreted in accordance with the

Americans with Disabilities Act.” (Quoting Armstrong v.

20
Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246, n.12 (3d Cir.

2006)).5

To establish a failure-to-accommodate claim under the LAD,

a plaintiff must demonstrate that he or she (1) “qualifies as an

individual with a disability, or [] is perceived as having a

disability, as that has been defined by statute”; (2) “is

qualified to perform the essential functions of the job, or was

performing those essential functions, either with or without

reasonable accommodations”; and (3) that defendant “failed to

reasonably accommodate [his or her] disabilities.” Victor,

supra, 203 N.J. at 410, 421. Although these elements do not

mirror those of the ADA, the same proofs are implicated: (1)

the plaintiff had a disability; (2) the plaintiff was able to

perform the essential functions of the job; (3) the employer was

aware of the basic need for an accommodation; and (4) the

employer failed to provide a reasonable accommodation.

We reiterate that the ADA failure-to-accommodate claim

survived defendant’s motion for a directed verdict. Because

there was sufficient evidence to support plaintiff’s identical

5 We note that the ADA is a more constrictive statute than the
LAD, as it requires an additional showing that the plaintiff’s
disability limits a major life activity. 42 U.S.C.A.
§ 12102(1)(A). The LAD’s definition of physical disability is
broader. See Viscik v. Fowler Equip. Co., 173 N.J. 1, 16 (2002)
(concluding that unlike ADA, disability under LAD need not be
“severe” or “immutable”).

21
ADA claim, the LAD claim should have survived the directed-

verdict motion, as it was not precluded by CEPA.

The Legislature, “[i]n justifying the LAD’s enactment,”

declared “abhorrence to [workplace] discrimination in this

state.” Rodriguez v. Raymours Furniture Co., 225 N.J. 343, 355

(2016). Both the LAD and ADA were enacted to protect the rights

of those with disabilities, and to enable them to vindicate

those rights in court. “The LAD plays a uniquely important role

in fulfilling the public imperative of eradicating

discrimination.” Id. at 347. Like CEPA, one purpose of the LAD

“is to make it easier, not harder, for an employee to prevail”

on an employment discrimination claim. Young, supra, 141 N.J.

at 26 (describing the remedial nature of CEPA). We have held

that remedial social legislation such as the LAD “should be

given liberal construction in order that its beneficent purposes

may be accomplished.” Estate of Kotsovska ex rel. Kotsovska v.

Liebman, 221 N.J. 568, 584 (2015) (quoting Cruz v. Cent. Jersey

Landscaping, Inc., 195 N.J. 33, 42 (2008)); see also Young,

supra, 141 N.J. at 25 (“Where the Legislature’s intent is

remedial, a court should construe a statute liberally.”). These

principles guide us to our conclusion here.

Plaintiff maintains that had he known the ADA claim was

barred, he would have permissibly brought his claim for failure
22
to provide reasonable accommodations under the LAD. We

acknowledge that plaintiff acquiesced to dismissal of the LAD

failure-to-accommodate claim, which was not precluded by

sovereign immunity. However, we cannot ignore that the

dismissal was mistaken.

While we do not find that defendant’s belated assertion of

sovereign immunity was made in bad faith, we conclude that the

interests of justice require reinstatement of plaintiff’s LAD

failure-to-accommodate claim. See State v. Johnson, 42 N.J.

146, 162 (1964) (holding that trial court’s findings should be

disturbed only if they are so clearly mistaken “that the

interests of justice demand intervention and correction”).

As outlined above, the same proofs were presented to the

jury to support both the ADA and LAD failure-to-accommodate

claims. Because the jury awarded plaintiff $500,000 under the

ADA for defendant’s failure to accommodate, we conclude the jury

would have given plaintiff the same $500,000 award had

plaintiff’s LAD failure-to-accommodate claim not been dismissed.

To remain consistent with the spirit of the LAD, we remand

to the trial court to mold the jury’s award of damages on

plaintiff’s ADA claim to an award of $500,000 under the LAD –-

the full amount of damages awarded by the jury without

application of the ADA’s $300,000 cap on damages.

23
 The judgment of the Appellate Division is affirmed as

modified, and this matter is remanded to the trial court for

further proceedings consistent with this opinion.

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and TIMPONE
join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a
separate, partially CONCURRING and partially DISSENTING opinion,
in which CHIEF JUSTICE RABNER joins.

24
 SUPREME COURT OF NEW JERSEY
A-1 September Term 2015
075926

BRIAN ROYSTER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE and
JOSEPH R. FUENTES,

Defendants-Respondents,

JUSTICE ALBIN concurring in part and dissenting in part.

The majority has come to an eminently equitable outcome by

(1) recognizing that the failure-to-accommodate claims under the

New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-42, and the federal Americans with Disabilities Act (ADA), 42

U.S.C.A. §§ 12101-12213, are virtually the same; (2) reviving

the LAD claim erroneously dismissed by the trial court and

substituting it for the ADA claim that the majority now

dismisses on the ground of sovereign immunity; and (3) upholding

the jury’s verdict and molding the damages award. Although the

majority has taken a circuitous route to arrive at a just

result, it nevertheless reached the right destination, and

therefore I concur in the judgment.

I would have taken a more direct path and upheld the jury’s

verdict and award on the ADA claim, finding that, on that claim,
1
the State’s litigation conduct constituted a waiver of sovereign

immunity. The State litigated the ADA claim over seven years at

great expense to plaintiff and the civil justice system. Not

until after the trial court erroneously dismissed the LAD claim

and after the jury returned a verdict in plaintiff’s favor on

the ADA claim did the State assert sovereign immunity. Had the

State moved earlier for dismissal of the ADA claim, the

slumbering plaintiff undoubtedly would have awakened and

demanded that he be permitted to prosecute the LAD failure-to-

accommodate claim.

The majority treats sovereign immunity as though it is an

immutable doctrine, but it is not. Sovereign immunity finds its

source in the common law, and the common law adapts to changing

circumstances to advance notions of fair play and equity.

Recognizing that the State can waive sovereign immunity through

its litigation conduct is not a novel notion. In Lapides v.

Board of Regents, 535 U.S. 613, 624, 122 S. Ct. 1640, 1646, 152

L. Ed. 2d 806, 816 (2002), the United States Supreme Court found

that the State of Georgia waived its immunity from suit under

the Eleventh Amendment as the result of its litigation conduct.

This Court is the final expositor of the common law. Holding

that a state’s litigation conduct may constitute an exception to

the doctrine of sovereign immunity would be a reasonable and

fair adaptation of the common law. Accordingly, although I
2
concur in the judgment, I dissent from the majority’s rejection

of a litigation-conduct exception to the doctrine of sovereign

immunity.

I.

The State had a rational basis for not moving to dismiss

the ADA failure-to-accommodate claim while the LAD failure-to-

accommodate claim was still in the case. Although the two

claims are virtually identical, the ADA claim -- unlike the LAD

claim -- is subject to a cap on damages. If both claims had

gone to the jury and, for some reason, the jury had returned a

no-cause verdict on the LAD claim, the State would have

benefitted from the damages cap. Had the State moved for

dismissal of the ADA claim before trial, it is highly unlikely

that plaintiff would have slept on his rights and acquiesced in

the dismissal of his LAD claim. Accordingly, the course taken

by the State was not an unreasonable litigation strategy.

It is another thing, however, for this Court to allow the

State, which defended the ADA claim for seven years, to assert

sovereign immunity to overthrow a jury verdict, notwithstanding

its litigation conduct.

II.

Sovereign immunity is a doctrine based on the ancient maxim

that the king can do no wrong. State v. Otis Elevator Co., 12

N.J. 1, 13 (1953). The doctrine is a “judge-made concept,” a
3
product of the common law, City of East Orange v. Palmer, 47

N.J. 307, 328 (1966), abrogated in part by N.J.S.A. 54:4-3.3(b),

and, therefore, like all common-law doctrines, sovereign

immunity may be adapted to reflect changing “notions of fairness

and justice,” see Hennessey v. Coastal Eagle Point Oil Co., 129

N.J. 81, 110 (1992). “At the earliest common law the doctrine

of ‘sovereign immunity’ . . . was a rule that allowed

substantial relief,” but as the doctrine was ushered into the

modern era it “produce[d] . . . harsh results.” Palmer, supra,

47 N.J. at 328 (1966) (quoting Muskopf v. Corning Hosp. Dist.,

359 P.2d 457, 458 (Cal. 1961), superseded by statute, Cal. Gov’t

Code §§ 810-895.8). As a result, “tolerance for the doctrine of

sovereign immunity eroded” over time. Allen v. Fauver, 167 N.J.

69, 74 (2001).

As the superintendent of the common law, this Court in 1970

abrogated sovereign immunity as it applied both to contractual

and tort actions against the State. P, T & L Constr. Co. v.

Comm’r, Dep’t of Transp., 55 N.J. 341, 346 (1970) (contractual

cases), superseded by statute, N.J.S.A. 59:13-1 to -10; Willis

v. Dep’t of Conservation & Econ. Dev., 55 N.J. 534, 540 (1970)

(tort cases), superseded by statute, N.J.S.A. 59:1-1 to 59:12-3.

Those decisions make clear that the doctrine of sovereign

immunity is not holy writ but a product of our evolving common

law. The Legislature may preempt the common law through its
4
statutory powers, as it did in the wake of P, T & L and Willis,

by passing the Contractual Liability Act, N.J.S.A. 59:13-1 to -

10, and the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, and as

it has in other areas, see, e.g., N.J.S.A. 2A:35-1 (replacing

common-law action of ejectment and providing statutory remedy to

one who claims title to property possessed by another).

In the absence of legislative action occupying the field,

however, this Court retains its authority as the ultimate

expositor of the common law to ensure that the sovereign-

immunity doctrine is not wielded as an instrument of injustice.

This Court is not powerless and is not required to sit as a

silent witness after the State litigates a matter over a course

of seven years and asserts sovereign immunity only after an

unfavorable jury verdict. This is especially so when the

opposing party detrimentally relies on the State’s conduct.

Under such circumstances, common-sense notions of fairness

dictate that this Court should recognize a litigation-conduct

exception to sovereign immunity. This Court should follow the

lead of the United States Supreme Court, which, in Lapides,

supra, held that a state’s litigation conduct can constitute a

waiver of Eleventh Amendment immunity. 535 U.S. at 624, 122 S.

Ct. at 1646, 152 L. Ed. 2d at 816.

In Lapides, the plaintiff filed federal-civil-rights and

state-law claims against certain Georgia state officials in a
5
Georgia state court. Id. at 616, 122 S. Ct. at 1642, 152 L. Ed.

2d at 811. There was no question that, through its tort-claims

act, Georgia had waived sovereign immunity on the state-law

claims. Ibid. Georgia’s attorney general removed the lawsuit

to federal court. Ibid. After succeeding in having the

federal-civil-rights claims dismissed on qualified-immunity

grounds, Georgia argued that it was immune from suit on the

state-law claims based on Eleventh Amendment immunity. Ibid.

Even though Georgia could not be sued in federal court for money

damages under the strict language of the Eleventh Amendment, the

Supreme Court held that Georgia’s litigation conduct -- its

removal of the case to federal court -- constituted a waiver of

its Eleventh Amendment immunity. Id. at 617, 624, 122 S. Ct. at

1643, 1646, 152 L. Ed. 2d at 812, 816. That piercing of

Eleventh Amendment immunity was necessary to ensure that

Georgia, through its litigation conduct, did not deny the

plaintiff a forum where he could redress his state-law claims.

Id. at 621-23, 122 S. Ct. at 1644-45, 152 L. Ed. 2d at 814-15.

Surely, if a state can waive Eleventh Amendment immunity --

an immunity grounded in the text of the Federal Constitution --

a state can waive the common-law doctrine of sovereign immunity.

See Sea Hawk Seafoods, Inc. v. State, 215 P.3d 333, 334, 341

(Alaska 2009) (holding that state can waive sovereign immunity

through litigation conduct).
6
 Our decision in Allen v. Fauver is not controlling law

because in that case the State’s litigation conduct was not an

issue. In Allen, supra, the State timely moved to dismiss, on

sovereign-immunity grounds, claims filed by state correctional

officers under the Fair Labor Standards Act (FLSA), 29 U.S.C.A.

§§ 201-219. 167 N.J. at 72. We upheld the dismissal of the

claims because the Legislature did not indicate by “a clear and

unequivocal statement” that it intended to waive sovereign

immunity on FLSA claims brought against the State. Id. at 77.

In the present case, the State would have been entitled to

dismissal of the federal ADA claim had it timely asserted

sovereign immunity, just as the State had done in Allen. Unlike

here, the State in Allen did not pursue a litigation strategy of

defending on the federal claims over the course of many years to

the detrimental reliance of the plaintiffs.

Recognizing a litigation-conduct exception to sovereign

immunity would not impose any hardship on the State. The State

merely would have to move timely to dismiss a lawsuit on

sovereign-immunity grounds. That presumably would save the time

and resources of the State, the plaintiff, and the court system.

Thus, it should be evident that a litigation-conduct exception

would result in manifold benefits and advance a sensible public

policy.

III.
7
 In conclusion, I dissent because, by declining to adopt a

litigation-conduct exception to the doctrine of sovereign

immunity, the majority has not assumed its rightful supervisory

role over the common law. I concur because the majority has

fashioned a remedy in this case that achieves a just outcome.

8