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
Brian Royster v. New Jersey State Police(075926)
Court: Supreme Court of New Jersey
Date filed: 2017-01-17
Citations: 227 N.J. 482, 152 A.3d 900
Copy CitationsCombined Opinion