(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).
Argued January 3, 2000 -- Decided April 13, 2000
PER CURIAM
The issue in this appeal is whether a person who is statutorily disqualified from obtaining public
employment as a result of a criminal conviction may maintain an action for an alleged wrongful discharge, in
violation of the Conscientious Employee Protection Act (CEPA) and the Law Against Discrimination (LAD).
Although the Court affirms the judgment of the Appellate Division substantially for the reasons expressed in Judge
Skilllman's opinion below, its opinion further addresses the interplay among the Forfeiture Statute, the LAD and
CEPA.
In 1986, Charles Cedeno applied for the position of Director of Purchasing at Montclair State University
(Montclair). The job application form plaintiff completed asked whether he had any criminal convictions, which
Cedeno falsely answered in the negative. In fact, Cedeno had been convicted of bribery in the State of Pennsylvania
in 1982, when he was employed by the Southeastern Pennsylvania Transportation Authority (SEPTA). Cedeno was
hired by Montclair to fill the position. Cedeno was subsequently discharged from that position in June 1996.
Prior to his discharge, Cedeno filed an internal complaint with Montclair's Equal Opportunity/Affirmative
Action Office alleging that his supervisor had harassed him and discriminated against him on the basis of his
national origin and ancestry. That complaint was determined to be unfounded. Cedeno did not appeal that decision
to the Montclair Board of Trustees or pursue any other avenue of administrative review.
While his internal complaint was still under consideration, Cedeno filed an action against his supervisor
and against Montclair, alleging that Montclair had begun to take steps to terminate him and characterizing that
process as a retaliatory discharge, in violation of CEPA. He further alleged discrimination on the basis of ethnicity
and age, in violation of the LAD. Cedeno also asserted claims for intentional infliction of emotional distress,
conspiracy, invasion of privacy, and denial of his right to free speech.
During discovery, Montclair became aware of Cedeno's bribery conviction. Consequently, Montclair filed
a motion for summary judgment on the ground that Cedeno's wrongful discharge claims were barred because he
was disqualified from public employment pursuant to the Forfeiture Statute. The trial court issued a written
decision denying the motion, finding that Cedeno's criminal conviction in Pennsylvania did not bar him from
maintaining a wrongful discharge claim because it constituted “after-acquired evidence,” which is irrelevant during
the liability stage of a discrimination case.
In a published opinion, a majority of the Appellate Division reversed, concluding that the strong public
policy underlying the Forfeiture Statute would be seriously undermined if Cedeno were allowed to pursue any form
of monetary claim against the State. In reaching its decision, the majority specifically noted that other
circumstances, such as aggravated sexual harassment, where there was a need to vindicate the policies of the LAD
or CEPA and to compensate an aggrieved party for tangible physical or emotional harm, could lead to the
conclusion that even a person who was absolutely disqualified from holding public employment should be allowed
to seek compensation for harm suffered during that employment. It concluded however that even if Cedeno's
allegations could be substantiated, there would be no basis for finding the kind of severe physical or emotional harm
to him or aggravated wrongdoing that might warrant an award of monetary relief other than back pay. Judge
Lesemann dissented, finding that the majority unduly subordinated the LAD and CEPA to the Forfeiture Statute.
He would have affirmed the decision of the trial court.
The matter is before the Supreme Court as of right, based on the dissent below.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the opinion below;
the pursuit of a discrimination claim against the State by a convicted felon who is disqualified from public
employment is so unusual a circumstance that the denial of any relief to such a person does not create a realistic
danger of undermining the effective enforcement of the Law Against Discrimination or the Conscientious Employee
Protection Act.
1. The legislative intent of the Forfeiture Statute is to protect the public by precluding those who have once violated
the public trust from having a second opportunity. (pp. 3-4)
2. Although both the LAD and CEPA also serve important public policies and should be construed liberally to
effectuate those policies, given the quality of the proofs in this action, whatever value may be achieved by
permitting Cedeno's case to proceed to trial is outweighed by the policy against allowing that same person to obtain
public employment after having been convicted of bribery. (pp. 4-5)
3. Although a person absolutely disqualified from public employment may be able to allege facts that would
constitute aggravated harm or egregious discriminatory conduct sufficient to survive motion for summary judgment,
Cedeno has failed to allege such conduct or harm to overcome the high hurdle of the Forfeiture Statute. (pp. 5-6)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE O'HERN filed a separate dissenting opinion. Although Justice O'Hern agreed with the Court
that the grant of back pay to Cedeno even from the date of discharge would conflict with the paramount public
policy expressed in the Forfeiture Statute, he believed that the Court “set the bar too high” in requiring aggravated
physical or emotional harm or egregious discriminatory conduct to sustain an award of monetary damages for
employment discrimination. Instead, Justice O'Hern believed that it was not sound public policy to bar recovery for
any injury suffered while employed when discriminatory conduct is pervasive during the term of employment.
Thus, he would have allowed Cedeno's claims to go to trial and ultimately would have limited damages to
compensation for emotional distress and/or physical harm or injury.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN, and VERNIERO join in the
Court's PER CURIAM opinion. JUSTICE O'HERN has filed a separate dissenting opinion in which
JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A-
110 September Term 1998
CHARLES CEDENO,
Plaintiff-Appellant,
v.
MONTCLAIR STATE UNIVERSITY, a
corporation of the State of New
Jersey, and RAYE JEAN MASTRANGELO,
Defendants-Respondents.
Argued January 3, 2000-- Decided April 13, 2000
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 319
N.J. Super. 148 (1999).
John G. Geppert, Jr., argued the cause for
appellant (Wiley, Malehorn and Sirota,
attorneys; Mr. Geppert, Eugene Huang and
Arla D. Cahill, on the briefs).
Steven J. Zweig, Deputy Attorney General,
argued the cause for respondent Montclair
State University (John J. Farmer , Jr.,
Attorney General of New Jersey, attorney;
Mary C. Jacobson and Jerry Fischer,
Assistant Attorneys General, of counsel).
Howard M. Nirenberg argued the cause for
respondent Raye Jean Mastrangelo (Nirenberg
& Varano, attorneys; Sandra N. Varano, on
the brief).
PER CURIAM.
We affirm the judgment of the Appellate Division
substantially for the reasons expressed in Judge Skillman's
opinion below. Cedeno v. Montclair State Univ.,
319 N.J. Super. 148 (App. Div. 1999). We add the following to address the
interplay among N.J.S.A. 2C:51-1 to -5 (the Forfeiture Statute),
N.J.S.A. 10:5-1 to -49 (New Jersey's Law Against Discrimination
(LAD)), and N.J.S.A. 34:19-1 to -8 (the Conscientious Employee
Protection Act (CEPA)).
After being discharged from his position as Director of
Purchasing, plaintiff sued his former employer, Montclair State
University (MSU), for discrimination on the basis of age and
ethnicity under the LAD, and for retaliatory discharge under
CEPA. During discovery, MSU learned that plaintiff failed to
disclose a prior conviction for bribery in the course of public
employment. Plaintiff's felony conviction disqualified him from
public employment pursuant to N.J.S.A. 2C:51-2d. Based on that
fact, MSU filed a motion for summary judgment, arguing that
plaintiff was never entitled to the position and that the
discharge was thus lawful.
The Law Division denied the motion, concluding that after
acquired evidence is irrelevant during the liability stage of a
discrimination case. The Appellate Division reversed. In so
doing, the court found that evidence that plaintiff was forever
barred from government employment was of paramount concern. We
agree.
The legislative intent of the Forfeiture Statute is “'to
preclude those who have once violated the public trust from
[having] a second opportunity.'” Pastore v. County of Essex,
237 N.J. Super. 371, 377 (App. Div. 1989) (quoting State v. Musto,
187 N.J. Super. 264, 314 (Law Div. 1982), aff'd,
188 N.J. Super. 106 (App. Div. 1983)), certif. denied,
122 N.J. 129 (1990). As
we stated in Moore v. Youth Correctional Institute,
119 N.J. 256,
271 (1990), “[t]he forfeiture statute . . . reflects a belief
that the circumstances surrounding a criminal conviction bear
directly on an employee's competency and capacity to . . .
perform any . . . job for the state.” Moreover, forfeiture is
appropriate when an employee's “infraction casts such a shadow”
that government employment would be “incompatible with the traits
of trustworthiness, honesty, and obedience to law and order . . .
.” Id. at 270.
The Legislature has created this “seemingly harsh” sanction
of absolute disqualification from government employment to
“codif[y] a long-standing policy against retention of offenders
in government service.” State v. Lee,
258 N.J. Super. 313, 317
(App. Div. 1992). The Forfeiture Statute “was designed to
protect the public, not the offender, and we construe it so as to
advance this objective.” Pastore, supra, 237 N.J. Super. at 377
78. Moreover,
[i]t is the public policy of this State that
“person[s] holding any public office,
position or employment” must avoid committing
serious criminal acts or offenses which
involve or touch upon their governmental
duties, or sacrifice their right to
governmental employment. This is a harsh
response to a problem serious enough to
justify the harshness. The purpose is to
prevent miscreants and corrupt officials from
again holding office.
Nevertheless, we stress that there may be aggravated circumstances “where the need to vindicate the policies of the LAD or CEPA and to compensate an aggrieved party for tangible physical or emotional harm could lead to the conclusion that even a person who was absolutely disqualified from holding public employment should be allowed to seek compensation for harm suffered during that employment.” Cedeno, supra, 319 N.J. Super. at 159-60 (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993)(involving aggravated sexual harassment)). Such circumstances may be evident because of either the level of harm sustained by a plaintiff or the nature of a defendant's conduct. In this instance, plaintiff failed to allege sufficiently egregious conduct or severity of harm to overcome the high hurdle of the Forfeiture Statute, which otherwise mandates his discharge.
Accordingly, we agree with the Appellate Division that, on the record presented, “the pursuit of a discrimination claim against the State by a convicted felon who is disqualified from public employment is so unusual a circumstance that the denial of any relief to such a plaintiff does not create a realistic danger of undermining the effective enforcement of the LAD or CEPA.” Cedeno, supra, 319 N.J. Super. at 162. We leave open the possibility that a person absolutely disqualified from public employment may be able to allege facts that would constitute aggravated harm or egregious discriminatory conduct sufficient to survive a motion for summary judgment. Because plaintiff has not done so here, we affirm the judgment below.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN,
and VERNIERO join in this opinion. JUSTICE O'HERN filed a
separate dissenting opinion in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A-
110 September Term 1998
CHARLES CEDENO,
Plaintiff-Appellant,
v.
MONTCLAIR STATE UNIVERSITY,
A CORPORATION OF THE STATE OF
NEW JERSEY, AND RAYE JEAN
MASTRANGELO,
Defendants-Respondents.
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 (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 discriminatory conduct” to sustain an award of monetary
damages for employment discrimination. Ante at ___ (slip op. at
6).
In Nicosia v. Wakefern Food Corp.,
136 N.J. 401, 418-19
(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 419-420 (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.
[William L. Kandel, Age Discrimination:
Recent Decisions by Appellate Courts under
the Age Discrimination in Employment Act
Through Mid-1999, 616 PLILit 7, 70 (1999).]
Ordinarily, application of the McKennon balancing test serves
“to limit a plaintiff's 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.See footnote 11 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 (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
brought 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 actionSee footnote 22 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 (App. Div. 1996). In Mehlman v. Mobil Oil Corp.,
153 N.J. 163, 178 (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. at 62 (citing Gray v. Serruto Builders, Inc.,
110 N.J.
Super. 297, 315 (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. Even 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 plaintiff's 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 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 (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-Myers Squibb Co.
156 N.J. 455 (1998).
In that case, the father of a co-employee (who was a customer of
the firm) was said to have objected to his daughter working with
a person of the plaintiff's 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.
NO. A-110 SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
CHARLES CEDENO,
Plaintiff-Appellant,
v.
MONTCLAIR STATE UNIVERSITY, a
corporation of the State of New Jersey,
and RAYE JEAN MASTRANGELO,
Defendants-Respondents.
DECIDED April 13, 2000
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY Justice O'Hern
Footnote: 1 1 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.” Footnote: 2 2 See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (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).