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

Joseph A. Donelson v. DuPont Chambers Works (A-112-09) (065628)

Argued December 1, 2010 -- Decided June 9, 2011

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

The question presented in this case is whether, under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, an employee who becomes the victim of employer retaliation for engaging in statutorily protected whistle-blowing activities and who becomes psychologically disabled due to that retaliation can pursue a lost-wage claim without having to prove a constructive discharge.

Defendant DuPont Chambers Works (DuPont), which manufactures chemical products, employed plaintiff John Seddon for approximately thirty years. In December 2002, Seddon was an operator technician in the phosgene building at one of DuPont’s facilities. Phosgene is a “highly toxic” and “very reactive chemical.” Among Seddon’s duties was to ensure the safe operation of equipment and the safe handling of dangerous chemicals in the building. He was also responsible for the safety of those who worked there and those who lived in the surrounding area. In December 2002, Seddon expressed to a shift manager his concern about the dangerous manner in which DuPont’s security guards were conducting random searches of employees’ cars at nighttime. Drivers were made to exit from their cars at the front gate and stand unprotected in the dark while passing traffic, including trucks, whizzed by. Because DuPont did nothing to ameliorate the safety hazards caused by these stops, Seddon filed a complaint with the federal Occupational Safety and Health Administration (OSHA). After DuPont became aware of the OSHA complaint, it appointed Paul Kaiser to serve as Seddon’s direct shift supervisor. Kaiser began imposing sick- and vacation-day-reporting requirements specific to Seddon, who previously did not report to a shift supervisor.