(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 February 27, 1995 -- Decided July 13, 1995
POLLOCK, J., writing for a unanimous Court.
The issue on appeal is whether William Craig, Ellen Chapman, William Denino, and Ellen Marsillo
(plaintiffs) have standing to sue Suburban Cablevision, Inc., Frank DeJoy, Jane Bulman and Gregory Vandervort
(defendants) for a retaliatory discharge in violation of the New Jersey Law Against Discrimination (LAD),
specifically, N.J.S.A. 10:5-12(d) (section 12(d)). Under section 12(d), it is unlawful for an employer to take
reprisals against any person who filed a complaint, testified or assisted in any proceeding under the LAD or who
assisted or encouraged any other person in the exercise or enjoyment of any right granted or protected by the
LAD.
Plaintiffs worked in the door-to-door sales department of Suburban Cablevision, Inc. (Suburban). Susan
Chapman was the supervisor, and Ellen Chapman, Susan's mother, was her superior and the department manager.
Ellen Marsillo is Susan's sister. William Craig and William Denino were Susan's close friends. Susan had filed
a discrimination claim in federal court against Suburban, alleging that Suburban failed to consider her for a
promotion because of her gender and physical handicap. The parties eventually settled that action.
Before settling Susan's federal court action, Suburban instituted a number of changes in the department
that the employees considered harassing. As Susan's lawsuit progressed, Suburban allegedly escalated its
harassment.
On July 14, 1989, Frank DeJoy, vice-president and general manager of Suburban, called a meeting with
the department's sales staff. At that meeting, DeJoy announced that the door-to-door sales department would be
closed for "economic reasons" and that all employees would be terminated effective August 18, 1989. Although
Suburban offered the terminated employees an opportunity to apply for other positions in the company, it
discouraged them from applying for those other positions. The personnel manager advised each employee that
he or she would forfeit any severance pay if the employee applied for another company position. In addition,
the offered positions were at lower salaries and without commissions. In light of those disincentives, none of the
employees applied and the door-to-door sales employees lost their jobs, including plaintiffs.
Eighteen months after eliminating the door-to-door sales department, Suburban reinstituted door-to-door
sales by subcontracting with Cable Television Marketing of America (CTMA), an independent sales marketing
concern. Responding to newspaper advertisements placed by CTMA, Denino, Marsillo and Susan Chapman
applied for positions at CTMA and were hired. When Suburban learned that CTMA had hired former Suburban
employees, Suburban directed CTMA's manager to rescind the offers of employment. Because it did not want to
jeopardize its contract with Suburban, CTMA retracted its offers to Denino, Marsillo and Susan Chapman.
On August 20, 1992, plaintiffs and Susan Chapman filed an eleven-count complaint against Suburban in State court seeking relief under the New Jersey Constitution, the LAD, and various common-law causes-of-action. Defendants moved to dismiss all counts except the eighth count, which alleges that Suburban engaged in unlawful age discrimination. The trial court, among other things, dismissed counts one through six, which asserted that plaintiffs were victims of retaliatory discharge. In those counts, plaintiffs claimed that the discharge was: 1) a violation of N.J.S.A. 10:5-12(d) of the LAD (count one); 2) contrary to a clear mandate of public policy (count two); 3) a violation of State constitutional prohibition against the taking of private property without
due process (count three); 4) a breach of contract (count four); 5) a breach of an implied covenant of good faith
and fair dealing (count five); and 6) a result of fraudulent misrepresentation (count six).
The Appellate Division granted plaintiffs' motion for leave to appeal the dismissal of counts one
through five, but not count six concerning fraudulent misrepresentation. The Appellate Division affirmed the
dismissal of counts four and five, reinstated count one and declined to address the dismissal of counts two and
three, which it found redundant. The Appellate Division held that plaintiffs, because of their relationship to
Susan Chapman as co-workers and co-employed relatives, could maintain a retaliatory-discharge claim under the
LAD.
The Supreme Court granted defendants' motion for leave to appeal.
HELD: On the facts of this case, William Craig, Ellen Chapman, William Denino and Ellen Marsillo, as co-workers or relatives of an employee who sued their common employer under the New Jersey Law
Against Discrimination, have standing to sue that employer for retaliatory discharge in violation of the
LAD.
1. Section 12(d) of the LAD was amended in 1992 to expand the class protected from employer retaliation to
include employees who merely aided or encouraged another person in the exercise of that person's rights under
the LAD. To establish a prima facie case of discriminatory retaliation, plaintiffs must demonstrate that: 1) they
engaged in a protected activity known by the employer; 2) thereafter their employer unlawfully retaliated against
them; and 3) their participation in a protected activity caused the retaliation. (pp. 7-8)
2. Ellen Chapman has standing to sue Suburban. By testifying as a witness in Susan's federal court action,
Ellen "aided or encouraged" her daughter and co-worker in the exercise or enjoyment of a right granted or
protected by the LAD. The other plaintiffs also have standing to sue Suburban. They claim that the pendency
of Susan's action and the department's cohesiveness caused Suburban to retaliate against the entire department.
To deny standing to the co-workers would encourage employers to take reprisals against the friends, relatives,
and colleagues of an employee who has asserted an LAD claim. Through coercion, intimidation, threats, or
interference with an employee's co-workers, an employer can discourage an employee from asserting such a
claim. (pp. 8-10)
3. Discriminating against one employee in violation of the LAD should not insulate an employer from claims by
other employees against whom the employer has retaliated. Reprisals against "innocent victims," such as
relatives and close friends who are co-workers, can be coercive, even when the coercion is unintentional. In the
context of Suburban's door-to-door sales department, reprisals against Susan Chapman's mother, sister and close
friends could have had a coercive effect on Susan. (pp. 10-13)
4. In holding that plaintiffs have standing to pursue a retaliatory-discharge claim, the Court does not address the
merits of their claim. Plaintiffs still must prove all elements of their cause of action. (p. 13)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
120 September Term 1994
WILLIAM CRAIG, ELLEN CHAPMAN,
WILLIAM DENINO and ELLEN
MARSILLO,
Plaintiffs-Respondents,
and
SUSAN CHAPMAN,
Plaintiff,
v.
SUBURBAN CABLEVISION, INC.,
FRANK DEJOY, JANE BULMAN, and
GREGORY VANDERVORT,
Defendants-Appellants.
Argued February 27, 1995 -- Decided July 13, 1995
On appeal from Superior Court, Appellate
Division.
Jerrold J. Wohlgemuth argued the cause for
appellants (Apruzzese, McDermott, Mastro &
Murphy, attorneys).
Gerald Jay Resnick argued the cause for
respondents.
The opinion of the Court was delivered by
POLLOCK, J.
The sole issue on this appeal is whether plaintiffs, William Craig, Ellen Chapman, William Denino, and Ellen Marsillo, have standing to sue Suburban Cablevision, Inc. (Suburban) and the individual defendants for a retaliatory discharge in violation of N.J.S.A. 10:5-12d. The Law Division ruled that plaintiffs did
not have standing, and the Appellate Division reversed.
274 N.J.
Super. 303 (1994). We granted defendants' motion for leave to
appeal,
139 N.J. 181 (1994), and affirm. We hold on the facts of
this case that plaintiffs, as co-workers or relatives of an
employee who sued their common employer under the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42, may maintain an
action for retaliatory discharge.
Because the matter arises on defendants' motion to dismiss, we accept as true the facts alleged in the complaint. Rieder v. Department of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). The test is whether the alleged facts "suggest" a cause of action. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). Plaintiffs are entitled to every reasonable inference in their favor. A reviewing court must "`search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim . . . .'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
N.J.S.A. 10:5-12d makes it unlawful for an employer to take reprisals against any person who "filed a complaint, testified or assisted in any [LAD] proceeding," or who "aided or encouraged any other person in the exercise or enjoyment of[] any right
granted or protected by [the LAD]." The issue is whether
plaintiffs have alleged sufficient facts to establish their
standing to assert a violation of that section. Although the
record contains material other than the complaint, both the Law
Division and the Appellate Division treated the issue of standing
as arising on a motion to dismiss. So do we.
Plaintiffs worked in Suburban's door-to-door sales department. Susan was the supervisor, and Ellen, her mother, was her superior and the department manager. Ellen Marsillo is Susan's sister. Craig and Denino, although not related to Susan, were her close friends.
The case arises out of Suburban's alleged failure to
consider Susan for a promotion. In a discrimination claim filed
in the United States District Court for the District of New
Jersey, Susan alleged that Suburban failed to consider her
because of her gender and physical handicap. The parties settled
that action.
Before settling Susan's federal court action, Suburban instituted a number of changes in the department. These changes included: compelling sales agents to visit "never" customers (i.e., customers identified as being statistically unlikely to order cable television); taking away the pass keys of department
employees, thereby depriving the employees of access to the
office on weekends and in the evenings; removing "cancelled
installation sheets," which were a consistently reliable source
for prospective sales, from the door-to-door sales department and
instead furnishing those sheets to the telemarketing department;
limiting the quantity of promotional materials available to sales
agents for use in marketing; and threatening to install a time
clock. As Susan's lawsuit progressed, Suburban allegedly
escalated its harassment.
On July 14, 1989, defendant Frank DeJoy, vice-president and
general manager of Suburban, called a meeting with the
department's sales staff. At the meeting, he announced that the
door-to-door sales department would be closed for "economic
reasons" and that all employees would be terminated effective
August 18, 1989. Although Suburban offered the terminated
employees an opportunity to apply for other positions in the
company, it discouraged them from applying. The personnel
manager advised each employee at his or her exit interview that
the employee would forfeit any severance pay if that employee
applied for another company position. In addition, the offered
positions were at lower salaries and without commissions. None
of the employees elected to apply. Consequently, plaintiffs and
other employees lost their jobs.
Eighteen months after eliminating the door-to-door sales
department Suburban reinstituted door-to-door sales by
subcontracting with Cable Television Marketing of America (CTMA),
an independent sales marketing concern. Responding to newspaper
advertisements placed by CTMA, Denino, Marsillo, and Susan
Chapman applied for positions. CTMA immediately hired them.
When Suburban learned from Paul Columbus, a CTMA manager,
that CTMA had hired former Suburban employees, Suburban directed
Columbus to rescind CTMA's offers of employment. Columbus
subsequently testified in a deposition that "Jane Bulman[, a
defendant and Manager of Marketing for Suburban,] didn't want
anybody that was affiliated with Suburban Cable before, she
didn't want them working with us." In its answers to
interrogatories, Suburban admitted that it had informed Columbus
that "Suburban would prefer that he not use former employees on
their account." Because it did not want to jeopardize its
contract with Suburban, CTMA retracted its offers to Denino,
Marsillo, and Susan Chapman.
On August 20, 1992, plaintiffs and Susan Chapman filed an eleven-count complaint against Suburban in the Superior Court, Law Division. They seek relief under the New Jersey Constitution, the LAD, and various common-law causes-of- action. Defendants moved pursuant to Rule 4:6-2(e) to dismiss all counts except the eighth count, which alleges that Suburban engaged in
unlawful age discrimination. The Law Division dismissed counts
one through six, which asserted that plaintiffs were victims of a
retaliatory discharge. Briefly stated, plaintiffs claim that the
discharge was: (1) a violation of N.J.S.A. 10:5-12d of the LAD;
(2) contrary to a clear mandate of public policy; (3) a violation
of the state constitutional prohibition against the taking of
private property without due process; (4) a breach of contract;
(5) a breach of an implied covenant of good faith and fair
dealing; and (6) a result of fraudulent misrepresentation. The
court granted plaintiffs leave to amend the remaining counts:
count seven, which alleged intentional infliction of severe
emotional distress; count nine, which alleged tortious
interference with a contractual relationship; count ten, which
alleged tortious interference with prospective economic
advantage; and count eleven, which alleged defamation.
The Appellate Division granted plaintiffs' motion for leave
to appeal the dismissal of counts one through five, but not count
six concerning fraudulent misrepresentation. Susan Chapman,
having settled her federal court action against Suburban, did not
join in the dismissed counts. Nor has she joined in the appeal
either in the Appellate Division or in this Court.
The Appellate Division affirmed the dismissal of counts four and five, reinstated count one, and declined to address the dismissal of counts two and three, which it found redundant.
Characterizing the central issue as one of standing, the
Appellate Division held that plaintiffs, because of their
relationship to Susan Chapman as co-workers and co-employed
relatives, could maintain a retaliatory-discharge claim under the
LAD. We likewise focus on the question whether plaintiffs have
standing to maintain such a claim.
We proceed mindful not only of the rule favoring liberal construction of the complaint, but also of the legislative direction that the LAD "shall be liberally construed in combination with other protections available under the laws of this State." N.J.S.A. 10:5-3.
Count one of the complaint asserts that "plaintiffs'
termination was an act of retaliatory discharge in violation of
the [LAD]." The LAD makes it unlawful for an employer
to take reprisals against any person because
that person has opposed any practices or acts
forbidden under this act or because that
person has filed a complaint, testified or
assisted in any proceeding under this act or
to coerce, intimidate, threaten or interfere
with any person in the exercise or enjoyment
of, or on account of that person having aided
or encouraged any other person in the
exercise or enjoyment of, any right granted
or protected by this act.
Notably, the Legislature amended section 12d in 1992 to add
the emphasized language. The amendment expands the class
protected from employer retaliation to include not just persons
who "opposed any practices or acts forbidden under [the LAD]" or
who "filed a complaint, testified or assisted in any proceeding,"
but also persons who merely "aided or encouraged" another person
in the exercise of that person's rights under the LAD.
To establish a prima facie case of discriminatory
retaliation, plaintiffs must demonstrate that: (1) they engaged
in a protected activity known by the employer; (2) thereafter
their employer unlawfully retaliated against them; and (3) their
participation in the protected activity caused the retaliation.
Jamison v. Rockaway Township Bd. of Educ.,
242 N.J. Super. 436,
445 (App. Div. 1990); Wrighten v. Metropolitan Hosps., Inc.,
726 F.2d 1346, 1354 (9th Cir. 1984).
We have no difficulty in finding that Ellen Chapman has
standing. By testifying as a witness in Susan's federal court
action, Ellen "aided or encouraged" her daughter and co-worker
"in the exercise or enjoyment of [a] right granted or protected
by [LAD]."
The case for the other plaintiffs, although not so compelling, leads us to the same conclusion. From the limited record, we gather that the door-to-door sales department was
small and cohesive. Plaintiffs constituted virtually the entire
sales force. They claim that the pendency of Susan's action and
the department's cohesiveness caused Suburban to retaliate
against the entire department. Further, they assert that they
"clearly felt that [Susan] had been wronged by the company and
[that they] supported her." Finally, they argue that Suburban
fired them because it perceived plaintiffs as having supported
Susan.
Our task is to ascertain the probable legislative intent
when an employer discriminates against an employee, the employee
complains about the discrimination, and the employer fires the
employee's close friends and relatives in direct retaliation. We
begin our assessment with the familiar proposition that the clear
public policy of this State is to eradicate invidious
discrimination from the workplace. Fuchilla v. Layman,
109 N.J. 319, 334-35, cert. denied,
488 U.S. 826,
109 S. Ct. 75,
102 L.
Ed.2d 51 (1988). To deny standing to the co-workers would
encourage employers to take reprisals against the friends,
relatives, and colleagues of an employee who have asserted an LAD
claim. Through coercion, intimidation, threats, or interference
with an employee's co-workers, an employer could discourage an
employee from asserting such a claim. In this context, we doubt
that the Legislature would want us to bar the aggrieved
co-workers from the courthouse by denying them standing to sue.
Previously, we have frequently looked to case law under
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e, for
guidance in developing standards to govern the resolution of LAD
claims. See Erickson v. Marsh & McLennan Co.,
117 N.J. 539,
549-50 (1990) (explaining that New Jersey Supreme Court has
adopted methodology of proof used in Title VII cases for use in
LAD cases); Shaner v. Horizon Bancorp.,
116 N.J. 433, 437 (1989)
(noting that LAD standards "have been influenced markedly by the
experience derived from litigation under federal
anti-discrimination statutes); Peper v. Princeton Univ. Bd. of
Trustees,
77 N.J. 55, 82-83 (1978) (adopting framework formulated
in McDonnell-Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct. 1817,
36 L. Ed.2d 668 (1973), for litigation under Title VII);
Drinkwater v. Union Carbide Corp.,
904 F.2d 853, 865 (3d Cir.
1990) (stating that New Jersey courts would apply Title VII
standard to claims under the LAD); Weiss v. Parker Hannifan
Corp.,
747 F. Supp. 1118, 1126 (D.N.J. 1990) (same).
De Medina v. Reinhardt,
444 F. Supp. 573 (D.D.C. 1978), is
instructive. In De Medina, which arose under Title VII, the
plaintiff alleged that she was denied employment at the United
States Information Agency (USIA) on account of her gender and
national origin, and in retaliation for her husband's anti-discrimination activities on behalf of minority employees at
USIA. Id. at 574. The Title VII provision analogous to N.J.S.A.
10:5-12d provided:
It shall be an unlawful employment practice
for an employer to discriminate against any
of his employees or applicants for employment
. . . because he has opposed any practice[,]
made an unlawful employment practice by this
subchapter, or because he has made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding, or
hearing under this subchapter.
Like defendants here, the defendant in De Medina argued that
only the plaintiff's husband, and not the plaintiff herself,
could seek relief under this provision. The argument was that
the husband, and not the plaintiff, had engaged in a protected
activity. De Medina, supra, 444 F. Supp. at 580. In rejecting
that argument, the court declared that "[s]uch a construction of
Title VII would produce absurd and unjust results . . . ." Ibid.
The court continued:
While the language of this section indicates
that Congress did not expressly consider the
possibility of third-party reprisals -- i.e.,
discrimination against one person because of
a friend's or relative's protected activities
-- the very clear intent of Congress would be
undermined by the construction defendant
suggests. In enacting section 2000e-3,
Congress unmistakably intended to ensure that
no person would be deterred from exercising
his rights under Title VII by the threat of
discriminatory retaliation. Since tolerance
of third-party reprisals would, no less than
the tolerance of direct reprisals, deter
persons from exercising their protected
rights under Title VII, the Court must
conclude . . . that section 2000e-3
proscribes the alleged retaliation of which
plaintiff complains.
In an attempt to distinguish De Medina, defendants assert
that in that case the plaintiff's husband, the target of the
employer's retaliation, was not dismissed. By comparison,
defendants point out that Suburban dismissed Susan Chapman along
with her co-workers. Defendants argue that De Medina stands for
the proposition that an employee's friend or relative has
standing to complain about retaliation only when the employer has
not retaliated against the employee.
The argument misses the mark. Firing an employee engaged in
a protected activity does not vitiate coercion, intimidation,
threats, or interference with co-workers. Discriminating against
one employee in violation of the LAD should not insulate a
vengeful employer from claims by other employees against whom the
employer has retaliated.
Defendants also try to distinguish DeMedina for the asserted reason that Suburban, unlike the employer in De Medina, did not discharge plaintiffs to send a "chilling" message to Susan Chapman. Rather, defendants read the complaint to allege that Suburban fired plaintiffs to disguise its direct retaliation against Susan. According to defendants, plaintiffs lack standing
because they are merely "innocent victims" of direct retaliation
against Susan Chapman.
We find this argument likewise unavailing. Reprisals
against "innocent victims," such as relatives and close friends
who are co-workers, can be coercive, even when the coercion is
unintentional. In the context of Suburban's door-to-door sales
department, reprisals against Susan Chapman's mother, sister, and
close friends could have had a coercive effect on Susan.
We hold that plaintiffs have standing to pursue their
retaliatory-discharge claim. In so holding, we do not pass on
the merits of their claim. Plaintiff still must prove all
elements of their causes of action.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, Stein and Coleman join in Justice Pollock's opinion.
NO. A-120 SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
WILLIAM CRAIG, ELLEN CHAPMAN,
WILLIAM DENINO and ELLEN
MARSILLO,
Plaintiffs-Respondents,
and
SUSAN CHAPMAN,
Plaintiff,
v.
SUBURBAN CABLEVISION, INC.,
FRANK DEJOY, JANE BULMAN, and
GREGORY VANDERVORT,
Defendants-Appellants.
DECIDED July 13, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY