Cedeno v. Montclair State University

O’HERN, J.,

dissenting,

I would reverse on the basis of the dissenting opinion in the Appellate Division. 319 N.J.Super. 148, 163-173, 725 A.2d 38 (1999). I appreciate that the Court has circumscribed its ruling to this limited context of a previously convicted person’s statutory disqualification from office under N.J.S.A. 2C:51-2, but I believe that the Court has set the bar too high in requiring “aggravated [physical or emotional] harm [to plaintiff] or egregious discrimina*480tory conduct” to sustain an award of monetary damages for employment discrimination. Ante at 479, 750 A.2d at 76.

In Nicosia v. Wakefern Food Corp., 136 N.J. 401, 418-19, 643 A.2d 554 (1994), the Court expressed its concerns about the application of the after-acquired evidence doctrine in the context of an unlawful discharge based on invidious discrimination or retaliation. The Court observed that the policy concerns that are at stake in applying the after-acquired evidence defense to an unlawful discharge based on invidious discrimination differ from those that are implicated in private employment contract actions based on breach of an implied contract of employment that derives from a personnel manual. We observed that there may be an important distinction between the duties [of an employer] arising from the contract and the duties imposed by remedial legislation. Id. at 419-20, 643 A.2d 554 (citing Bazzi v. Western & S. Life Ins. Co., 808 F.Supp. 1306, 1310 (E.D.Mich.1992)). Subsequently, in a case brought under the Age Discrimination and Employment Act (ADEA), the Supreme Court held that evidence of an employer’s misconduct discovered after the employee’s discharge in violation of ADEA, could not operate as a complete bar to relief but could limit an award of damages. McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). The Practising Law Institute has noted:

The gist of McKennon is that employers cannot escape liability for employment discrimination if, at the time of the adverse action, non-discriminatory reasons existed but could not have motivated the employer because they were then unknown. First, the Court emphasized the common purposes of all federal anti-discrimination statutes: to deter unlawful employment practices and to compensate victims for resultant injuries. The deterrent purpose would be undermined if employers knew they could escape liability for admitted discrimination merely by digging into work histories for windfall evidence of misconduct or dishonesty. Second, the Court identified the private, non-government litigant as “a vital element” in all these statutes. The potential litigant would be unduly discouraged if every discrimination claim carried the risk of total defeat based on subsequent disclosure and discovery of embarrassing evidence about the plaintiff unrelated to what motivated the employer.
*481[William L. Kandel, Age Discrimination: Recent Decisions by Appellate Courts under the Age Discrimination in Employment Act Through Midr-1999, 616 PLI Lit 7, 70 (1999).]

Ordinarily, application of the McKennon balancing test serves “to limit a plaintiffs recovery from the date of the unlawful discharge to the date that the information is uncovered. It is insufficient to show that the misconduct committed by the plaintiff was a terminable offense. The defendant must affirmatively show that plaintiff would have been terminated.” Grady B. Murdock, et al., Developments in Title VII and Section 1981, 614 PLI/Lit 419, 449 (1999). Thus, a claimant in after-acquired evidence cases will ordinarily be entitled to compensation for back pay and emotional distress, but not to front pay and reinstatement (future lost wages). This result was foreshadowed in Massey v. Trump’s Castle Hotel and Casino, 828 F.Supp. 314 (D.N.J.1993).

A 1990 amendment to the LAD, L. 1990, c. 12, § 1, specifically authorized recovery of emotional distress damages for discrimination claims and the statement accompanying the amendment emphasized that the LAD is to be liberally construed so that all common law remedies are available to persons protected by the LAD.1 Assembly Judiciary Law and Public Safety Committee Statement to Bills No. 2872, 2118, and 2228 (1990) (reprinted at N.J.S.A. 10:5-3). Our cases have disapproved any requirement of expert testimony or independent corroboration as a prerequisite to an emotional distress award in a discrimination case. Rendine v. Pantzer, 141 N.J. 292, 661 A.2d 1202 (1995); see also Bolden v. SEPTA, 21 F.3d 29, 34 (3d Cir.1994) (expert medical testimony is not required to prove damages for emotional distress in a case *482brought under 42 U.S.C. § 1983). Emotional distress is a probable consequence of discrimination and one of the “personal hardships” envisioned by the Legislature as justifying relief. N.J.S.A. 10:5-3. It would frustrate the purposes of the LAD if employers were permitted to discriminate against employees. Regardless of the details of an employee’s pre- and post-hiring conduct, when “the discriminatory conduct was pervasive during the term of employment ... it would not be sound public policy to bar recovery for injury suffered while employed.” Murillo v. Rite Stuff Foods, Inc., 65 Cal.App.4th. 833, 850, 77 Cal.Rptr.2d 12, 23 (1998).

All that is required in a tangible employment action2 is that the record demonstrate a substantial basis for an award of damages for emotional distress. Spragg v. Shore Care, 293 N.J.Super. 33, 62, 679 A.2d 685 (App.Div.1996). In Mehlman v. Mobil Oil Corp., 153 N.J. 163, 178, 707 A.2d 1000 (1998), the Court sustained an award of $875,000 in emotional distress damages for a whistle-blower. The Court did not require that he have established “aggravated harm.” When an award for emotional distress is based on personal humiliation or indignity suffered by the claimant, such an indignity must be the natural, proximate, reasonable and foreseeable result of the discrimination. Spragg, supra, 293 N.J.Super. at 62, 679 A.2d 685 (citing Gray v. Serruto Builders, Inc., 110 N.J.Super. 297, 315, 265 A.2d 404 (Ch.Div.1970)).

In this case, plaintiff has alleged that his contract was not renewed as a result of his employer’s intentional discrimination and retaliation. The harassment that he experienced caused him to collapse at work and suffer a near heart attack. Plaintiff contends that his supervisor was aware of his anxiety attack and attempted to reprimand him both during and after the event. *483Even under the Court’s standard, I believe that plaintiff should have his day in court to prove his emotional distress claim. Whatever his failings, Charles Cedeno did not cease to be a person, a human being who seeks redress for the humiliation that flows from a discriminatory act.

I do agree with the Court that this is the exceedingly rare case in which a claimant may be denied back pay from date of discharge rather than the date of discovery of the wrongful conduct. Because the grant of back pay from the date of discharge would conflict with the paramount public policy expressed in N.J.S.A. 2C:51-2, the worker was not eligible for the pay and did not work for it. To sum up,

[c]ourts must tread carefully in applying the after-acquired-evidence doctrine to discrimination claims. As noted in Mardell v. Harleysville Life Ins. Co., supra, 31 F.3d.at pages 1236-1237, “The prospect of a defendant’s thorough inquiry into the details of a plaintiffs pre and post-hiring conduct ... may chill the enthusiasm and frequency with which employment discrimination claims are pursued, even in cases where the victim of discrimination has nothing to hide, let alone cases where the potential plaintiff is not entirely blameless. Placed in context of the general pervasiveness of resume fraud and employee misconduct, the likely consequence of the widespread exploitation of after-acquired evidence will be underenforcement of [antidiscrimination statutes], and consequently underdeterrence of discriminatory employment practices.”
[65 Cal.App.4th at 844, 849, 77 Cal.Rptr.2d 12, 21 (footnotes omitted).]

That result would be strongly inconsistent with public policy of New Jersey.

Like LAD, CEPA promotes a strong public policy of the State. “We view this legislation as a reaffirmation of this State’s repugnance to an employer’s retaliation against an employee who has done nothing more than assert statutory rights and protections and a recognition by the Legislature of a preexisting common-law tort cause of action for such retaliatory discharge.” “In New Jersey we are deeply committed to the principle that an employer’s right to discharge an employee carries a correlative duty to protect his freedom to decline to perform an act that would constitute a violation of a clear mandate of public policy.”
[Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431-32, 650 A.2d 958 (1994) (internal citations omitted).]

We recently reviewed a case in which an employer was alleged to have denied an employee a promotion because of the employee’s race. Spencer v. Bristol-Meyers Squibb Co. 156 N.J. 455, 720 A.2d 601 (1998). In that ease, the father of a co-employee (who *484was a customer of the firm) was said to have objected to his daughter working with a person of the plaintiffs color. An employer who engages in such open discrimination should not, through the receipt of after-acquired evidence, receive a free pass to discriminate so long as the employer does not cause the employee to be hospitalized or placed under medical treatment.

Justice LONG joins in this opinion.

For affirmance — Chief Justice PORITZ and Justices GARIBALDI, STEIN, COLEMAN and VERNIERO — 5.

For reversal — Justices O’HERN and LONG — 2.

Under N.J.S.A. 10:5-3, the Legislature permitted common law remedies for the personal hardships from which a victim of discrimination might suffer. The Act recites these "personal hardships”: "economic loss; time loss; physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems, which particularly impact on those protected by this act.”

See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (explaining that the requirement of severe and pervasive harassment is necessary to establish a claim of hostile working environment, but is not a requirement for establishing a claim of discrimination involving a tangible employment action, such as discharge, dismissal, or denial of promotion).