(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 May 2, 2000 -- Decided July 19, 2000
VERNIERO, J., writing for a unanimous Court.
In this appeal, the Court considers whether the jury's verdict in favor of the plaintiff is sustainable under the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
Plaintiff, Frank Roach (now deceased), began his employment with TRW, Inc. in 1981. He was hired by TRW as
the Staff Assistant of Physical Security, to protect TRW's secrets, including classified information provided to TRW by the
United States government. During the twelve years of his employment with TRW, Roach was twice promoted in the
security division and received positive evaluations.
As a defense contractor, TRW was directed by the United States government to implement an ethics program for
the training and education of its employees. In 1988, Roach was promoted to manager of TRW's Business Ethics and
Conduct Program. As manager of the program, Roach was involved in implementing TRW's code of conduct. That code
required any employee who acquired information that gave him or her reason to believe that another TRW employee was
engaged in conduct prohibited by the TRW policy to report that information to his or her supervisor or to a TRW attorney.
To facilitate reporting of violations, TRW set up an independent hotline managed by TRW attorneys. Failure of an
employee to report a violation of TRW policy could result in disciplinary action, including termination.
In November 1991, the secretary to Vernon DeBord, a TRW employee, approached Roach and alleged improper
activities on the part of DeBord and another employee by the name of Jim Vrungos, including an allegation of kick-back
payments intended for DeBord and Vrungos if TRW's planned acquisition of a certain company took place. After
investigating the matters, Roach concluded that each complaint was valid.
Thereafter, Roach reported his findings to his supervisor, Charles Briggs, who assured him that he would “follow
up.” Although Roach understood this to mean that Briggs would call the hotline and report the matter to the TRW
attorneys, in fact, Briggs told Vrungos about the complaints. Roach claims that Briggs and Vrungos subsequently informed
him during a telephone conference that the allegations were not important enough to warrant further investigation and that
they were “gray” in nature. Following that conversation, in November 1991, Roach met with Briggs and urged him to
submit his findings to the legal department to comply with their reporting obligations under the code of conduct. When
Briggs was not responsive, Roach asked him to acknowledge in writing that he (Roach) had satisfied his reporting
obligations. Ultimately, Roach was informed that no action would be taken.
On March 29, 1992, Roach himself telephoned the TRW hotline, believing that the call was necessary to satisfy his
reporting obligations under the code. According to the hotline attorneys, Roach's call “fell through the cracks,” and the
attorneys apparently took no action on the complaints.
In August 1992, TRW announced plans for a reorganization of its space and defense sectors. Under the plans,
Roach's group was to be combined with another group. The TRW employee who was to head that group directed nine
individuals, including Briggs, to evaluate each staff member for past and expected future performance. Briggs gave Roach a
favorable rating, while another employee gave him an unfavorable rating. The combination of those ratings put Roach in
the classification of an “average performer,” ranking him at the bottom of the thirty-seven individuals evaluated.
Subsequently, on November 3, 1992, TRW sent Roach a layoff notice, which provided him with ten-weeks notice
to find new employment. The other thirty-six employees who were evaluated were either retained by TRW or transferred to
other positions, voluntarily resigned, or were hired back as independent contractors for the company. Roach attempted to
resolve the matter internally, ultimately filing a formal grievance with TRW to protest his layoff. That grievance was
unsuccessful.
In November 1993, Roach filed a complaint in the Law Division against TRW alleging, among other things,
violations of CEPA. At trial, Roach presented evidence to prove that TRW's decision to terminate his employment was
motivated, in part, by his complaints about his co-employees in violation of numerous CEPA provisions. Specifically,
Roach asserted that he reasonably believed that he had disclosed activities that were unlawful pursuant to N.J.S.A. 34:19
3a., that were fraudulent or criminal pursuant to N.J.S.A. 34:19-3c.(2); or that were incompatible with public policy
pursuant to N.J.S.A. 34:19-3c.(3). The jury found for Roach under all alleged sections of CEPA, except section 3c.(3)
(activities incompatible with public policy). Accordingly, the jury awarded Roach $629,000 in lost wages and $75,000 for
pain, suffering, and emotional distress. TRW moved for judgment notwithstanding the verdict or for a new trial, both of
which were denied.
The Appellate Division set aside the jury's verdict, concluding that CEPA did not extend protection to employees'
complaints about co-employees' actions that harmed only the employer. The Supreme Court granted Roach's petition for
certification, but summarily remanded to the Appellate Division to reconsider the appeal in view of its decision in Higgins
v. Pascack Valley Hospital,
158 N.J. 404 (1999) (finding that certain complaints about co-employee activity are protected
under section 3c.(3) of CEPA). The Appellate Division affirmed its earlier decision, concluding that Higgins was
inapplicable because Roach's complaints did not “implicate the public interest.”
The Supreme Court again granted Roach's petition for certification, and also granted the National Employment
Lawyers Association of New Jersey's motion to appear as amicus curiae.
HELD: Plaintiff was not required to prove a defined violation of public policy to win a jury verdict under sections 3a. and
3c. of the Conscientious Employee Protection Act; plaintiff provided sufficient proofs to the jury that his complaints to his
employer about his co-employees' conduct were protected under CEPA and this his discharge was motivated by those
complaints.
1. Given CEPA's broad remedial purpose to protect employees who report illegal or unethical work-place activities, the
Legislature did not intend to hamstring conscientious employees by requiring that they prove in all cases that their
complaints involve violations of a defined public policy. (pp. 14-17)
2. In examining whether a retaliatory motive for discharge exists, jurors may infer a causal connection between the
employee's discharge and his or her complaints about the improper conduct of co-employees based on the surrounding
circumstances. (pp. 17-18)
3. In considering a motion for judgment notwithstanding the verdict, a jury's verdict will not be disturbed unless it is found
that the jury could not have reasonably used the evidence to reach its verdict. (pp. 18-19)
4. CEPA affords protection to employees if they reasonably believe that the activity complained of is fraudulent or criminal
even when the activity does not rise to the level of an actual crime. (pp. 19-20)
5. Although the term “reasonably believes” in sections 3c.(1) and 3c.(2) provides ample justification to sustain the jury's
verdict in this case, that term is not intended to spawn litigation concerning the most trivial or benign employee complaints.
(pp. 20-21)
6. The jury had ample basis to find that TRW had ratified the alleged employee misconduct, thereby treating the
complained-about activities as the employer's own conduct in satisfaction of section 3a. of CEPA. Intent to ratify an
unauthorized transaction may be inferred from a failure to repudiate it. (p. 21)
7. The jury's findings in respect of sections 3c.(1) and 3c.(2) are sufficient to sustain the entire verdict. If there are
numerous theories on which the jury could rest its determination, the verdict of the jury must be upheld if there is any one
possible theory of liability substantiated by the evidence taken as a whole. (pp. 21-22)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division to
reinstate the jury's verdict.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, and LaVECCHIA join
in JUSTICE VERNIERO's opinion.
SUPREME COURT OF NEW JERSEY
A-
74 September Term 1999
ESTATE OF FRANK L. ROACH,
Plaintiff-Appellant,
and
KATHERINE BORAL,
Plaintiff,
v.
TRW, INC.,
Defendant-Respondent,
and
FRANCES KRUSE, Individually and
as Agent for TRW, Inc.,
Defendant.
Argued May 2, 2000 -- Decided July 19, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
326 N.J. Super. 493 (1999).
Linda B. Kenney argued the cause for
appellant (Kenney Schaer & Martin,
attorneys; Ms. Kenney and Gregory S. Schaer,
of counsel; Mr. Schaer, on the briefs).
Kenneth J. Kelly argued the cause for
respondent (Epstein Becker & Green, Mr.
Kelly and Mark D. Lurie, on the brief).
Christopher P. Lenzo submitted a brief on
behalf of amicus curiae, National Employment
Lawyers Association of New Jersey (Francis,
Lenzo & Manshel, attorneys).
The opinion of the Court was delivered by
VERNIERO, J.
This appeal requires us to consider whether the jury's
verdict in favor of plaintiff is sustainable under the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8
(CEPA). The Appellate Division set aside the verdict based on
its conclusion that plaintiff did not articulate, as purportedly
required by CEPA, that the actions of his co-employees, about
which he complained, implicated the public interest. Because we
differ in our interpretation of the statute and conclude that the
jury's verdict is sustainable on the record presented, we
reverse.
The code of conduct provides:
It is the policy of [TRW] to comply fully with all laws governing its operations and to conduct its affairs according to the highest legal and ethical standards.
Compliance with this policy means not only observing the law, but so conducting [TRW] business that [TRW] will deserve and receive recognition as an ethical and law-abiding enterprise, alert to all the responsibilities of good corporate citizenship. It should be understood that the spirit of this policy requires that [TRW] maintain a high degree of integrity in all of its interactions with shareholders, employees, customers, suppliers, local communities, governments at all levels and the general public.
. . . .
An infraction by any employee of this policy,
of the applicable laws or of recognized
ethical business standards will subject the
employee to disciplinary action, which may
include warning, reprimand, probation,
reduction in compensation, demotion,
suspension or dismissal.
In defining the responsibilities of TRW employees, the code
provides, in part, that “[e]very employee should bring possible
violations of [the code] to the attention of (i) his or her
supervisor or another [TRW] executive and (ii) a [TRW] attorney.”
More specifically, the code requires that “[a]ny employee who
acquires information that gives such employee reason to believe
that another employee is engaged in conduct prohibited by this
policy” has a responsibility to report promptly such information
to his or her supervisor or a TRW attorney. To facilitate
reporting of violations, TRW set up an independent hotline
managed by TRW attorneys. As stated in TRW's literature, the
hotline was intended to provide employees with the mechanism to
“satisfy[] their reporting obligations. . . .” Failure to report
a violation of the policy could result in disciplinary action,
including termination.
In a section titled “Contracting with the United States
Government,” the code indicates that “[b]ecause even the
appearance of impropriety can erode the public confidence in
[TRW] and in the Government procurement process, this policy
affirms required standards of conduct and practices with respect
to transactions with the United States Government.” The code
further explains:
The standards of conduct covered by this
policy explicitly require that scrupulous
attention be given to . . . proper recording
and charging of all costs to the appropriate
account, regardless of the status of the
budget for that account. The falsification
of timecards, charging unsupportable indirect
costs, incorrect classification of costs,
improper shifting of costs between contracts
or other intentional allocation of costs to a
Government contract contrary to the contract
provisions or related laws, rules and
regulations are [also] prohibited by this
policy.
In another section, the code prohibits conflicts of
interest, stating: “As a condition of employment, . . . employees
are required to avoid any situation that does or may involve a
conflict of interest between their personal interests or the
interests of the company.” A conflict of interest is defined as
“an activity, interest, or relationship that affects or appears
to affect the objectivity, judgment, or effectiveness of an
employee in performing his/her job.”
In June 1990, although he did not have a marketing
background, plaintiff requested a transfer to a marketing
position, District Office Manager, in TRW's Electronic Systems
Group. Plaintiff was interviewed by seven people including his
future supervisor, Charles Briggs. Another interviewer, Jim
Vrungos, indicated that plaintiff was not qualified for the
position. Nevertheless, plaintiff was hired for that position in
the Fort Monmouth office. Vernon DeBord worked in that office,
under the supervision of Vrungos.
In his new position, plaintiff was involved in acquiring and
maintaining a contract with the Army worth approximately
$65,000,000 over five years. He also was responsible for
acquiring new business. Plaintiff received generally favorable
performance reviews, although his evaluations contained some
constructive criticisms from Briggs, who by that time was
plaintiff's supervisor.
DeBord's secretary, Frances Kruse, approached plaintiff in
November 1991 and alleged improper activities on the part of
DeBord and Vrungos. (Apparently, DeBord had previously mentioned
to plaintiff that he wanted to discharge Kruse.) The alleged
activities included DeBord's filing of a false expense report
seeking reimbursement for a minor lunch expense, and false time
cards; DeBord's failure to disclose conflicts of interest with
subcontractors; leasing equipment on behalf of TRW for DeBord's
personal use; and failing to disclose a conflict of interest with
a company that TRW considered acquiring, including allegations of
kick-back payments intended for DeBord and Vrungos if the
acquisition took place. Plaintiff investigated the matters,
concluding that each complaint was valid. (In summarizing the
complaints against Debord and Vrungos, we make no judgment
regarding their validity and imply no wrongdoing on anyone's
part.) Importantly, plaintiff testified that he reasonably
believed that, by their actions, DeBord and Vrungos had violated
TRW's code of conduct and were engaged in illegal and unethical
conduct.
Plaintiff reported his findings to Briggs who, according to
plaintiff, indicated that he would “follow-up.” Plaintiff
believed that in following up Briggs would call the hotline and
report the matter to TRW attorneys, but, instead, Briggs told
Vrungos about plaintiff's complaints. According to plaintiff,
Briggs and Vrungos informed plaintiff during a conference call
that the allegations were not important enough to warrant further
investigation and that the allegations were “gray” in nature.
On November 22, 1991, plaintiff met with Briggs in
Washington, D.C. Plaintiff stated to Briggs that the two of them
should submit plaintiff's findings to the legal department to
comply with their reporting obligations under the code of
conduct. According to plaintiff, Briggs responded that Vrungos
was not “happy” with plaintiff and that plaintiff was not a “team
player.” Plaintiff asked Briggs to acknowledge in writing that
he (plaintiff) had satisfied his reporting obligations.
Plaintiff never received such acknowledgment. Later that week,
Vrungos went to the Fort Monmouth office and had a “heated”
meeting with plaintiff. Purportedly, Vrungos called plaintiff a
liar and informed plaintiff that Briggs owed Vrungos a favor, the
inference being that Briggs would overlook plaintiff's
complaints.
Plaintiff testified that his relationship with Briggs then
deteriorated and that their communications significantly
decreased. Plaintiff claimed that the work environment at the
Fort Monmouth office became hostile. Additionally, plaintiff
stated that he was informed that no action would be taken against
DeBord because he (DeBord) was slated to retire in two years.
On March 19, 1992, plaintiff himself called the TRW hotline,
believing the call was necessary to satisfy his reporting
obligations under the code. During his conversation, plaintiff
indicated that he feared he might be subject to termination in
the future. That plaintiff's call to the hotline “fell through
the cracks” is undisputed by the hotline attorneys; the attorneys
apparently took no action on plaintiff's complaints.
On August 6, 1992, TRW announced in its company newsletter
that the space and defense sectors of TRW would be reorganized
effective January 1, 1993. Plaintiff's group, Electronic Systems
Group, was to be combined with the Space and Technology Group.
Frederick Brown, a TRW executive, was assigned to head the new
division. On October 12, 1992, Brown asked nine individuals,
including Briggs, to evaluate each staff member for past and
expected future performance.
Briggs and another TRW employee, David DiCarlo, evaluated
plaintiff. Unlike Briggs who had substantial interaction with
plaintiff, DiCarlo had little such involvement. Briggs gave
plaintiff a rating of “3” with expected acceptable performance;
DiCarlo gave plaintiff a “4” with expected “inability to meet the
challenges of the future.” Plaintiff's average score was a 3.5,
meaning plaintiff was an “average performer.”
TRW sent plaintiff a layoff notice on November 3, 1992,
providing plaintiff with ten-weeks notice to find new employment.
Plaintiff stated that he was surprised by the notice because he
had received an organization chart two days earlier that listed
him as the District Office Manager for Fort Monmouth. According
to trial testimony, plaintiff called Brown to ask about the
layoff decision and Brown responded that the Fort Monmouth office
was to be closed pursuant to a recommendation by Briggs.
Plaintiff then called Briggs who purportedly denied knowledge of
the layoff notice and denied making a recommendation to close the
office. At trial, Brown testified that TRW employees continued
to work at the Fort Monmouth office.
Plaintiff filed a formal grievance with TRW and met with
company officials to protest his layoff. According to
plaintiff's notes about the meeting, TRW's vice president, Jay
McCann, found no evidence that plaintiff was terminated because
of his various complaints. The record indicates that plaintiff
was ranked thirty-seven out of thirty-seven individuals evaluated
in connection with the consolidation of the divisions. However,
the record also reveals that the other thirty-six employees were
either retained or transferred to other positions, had
voluntarily resigned, or were hired back as independent
contractors for TRW.
On November 30, 1993, plaintiff filed a complaint in the Law
Division against TRW, alleging violations of CEPA, breach of
contract, breach of the implied covenant of good faith and fair
dealing, negligent infliction of emotional distress, and a
common-law violation of public policy. On April 17, 1997, the
Law Division partially granted TRW's motion for summary judgment,
dismissing all of plaintiff's claims except for his CEPA claim.
At trial, plaintiff presented evidence to prove that TRW's
decision to terminate his employment was motivated, in part, by
plaintiff's complaints about his co-employees in violation of
numerous CEPA provisions. Specifically, plaintiff asserted that
he reasonably believed that he had disclosed activities that were
unlawful pursuant to N.J.S.A. 34:19-3a. (“section 3a.”) and
N.J.S.A. 34:19-3c.(1) (“section 3c.(1)”), were fraudulent or
criminal pursuant to N.J.S.A. 34:19-3c.(2) (“section 3c.(2)”), or
were incompatible with public policy pursuant to N.J.S.A. 34:19
3c.(3) (“section 3c.(3)”). The jury found for plaintiff under
sections 3c.(1) and 3c.(2), but not under section 3c.(3). The
jury also found for plaintiff under section 3a. Accordingly, the
jury awarded plaintiff $629,800 in lost wages and $75,000 for
pain, suffering, and emotional distress. TRW moved for judgment
notwithstanding the verdict, or in the alternative, for a new
trial. The trial court denied TRW's motion.
The Appellate Division set aside the jury's verdict,
concluding that CEPA did not extend protection to employees'
complaints about co-employees' actions that harmed only the
employer. Roach v. TRW, Inc.,
320 N.J. Super. 558, 570-71 (App.
Div. 1999) (Roach I). We granted plaintiff's petition for
certification,
162 N.J. 195 (1999), but summarily remanded to the
Appellate Division to reconsider the appeal in view of our
decision in Higgins v. Pascack Valley Hospital,
158 N.J. 404
(1999) (finding that certain complaints about co-employee
activity are protected under CEPA section 3c.(3)).
The Appellate Division affirmed its earlier decision in
Roach I. The court concluded that Higgins was inapplicable
because plaintiff's complaints did not “implicate the public
interest,” and, therefore, CEPA did not apply to plaintiff's
case.
326 N.J. Super. 493 (App. Div. 1999) (Roach II). We again
granted certification,
163 N.J. 78 (2000), and also granted the
National Employment Lawyers Association of New Jersey's motion to
appear as amicus curiae.
In overturning the verdict, the Appellate Division noted that “the jury made a specific finding under [section 3c.(3)] that the activities Roach had disclosed were not incompatible with a clear mandate of public policy.” Roach II, supra, 326 N.J. Super. at 497 (citation and internal quotation marks omitted). In essence, the Appellate Division held that all CEPA violations require a specific showing that the complained-about activities implicate the public interest. Citing in part to the jury's finding pursuant to section 3c.(3), the court concluded that the entire verdict had to be set aside. TRW urges the same statutory construction and result.
We disagree. The relevant sections of N.J.S.A. 34:19-3 provide:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;
. . . .
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law or . . . ;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
By the statute's plain language, the Legislature has explicitly provided under section 3c.(3) that an employee shall not be subject to retaliatory action when he or she objects to any activity that the employee “reasonably believes . . . is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” That language is unique to section 3c.(3).
TRW cites this Court's decision in Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998), for the proposition that employees must specifically prove that their complaints involve a matter of public interest. Defendant's reliance on Mehlman is misplaced. In that case, we specifically considered whether a plaintiff must know the exact source of public policy when asserting a CEPA claim under section 3c.(3). Because Mehlman pertained solely to a complaint brought under section 3c.(3), our holding in that case does not import the requirements of that section to other parts of CEPA. As we have noted in other settings, CEPA is designed to protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-employees. Higgins, supra, 158 N.J. at 417; Barratt v. Cushman & Wakefield, 144 N.J. 120, 127 (1996). “The purpose of CEPA is to protect employees who report illegal or unethical work-place activities. So viewed, CEPA is remedial legislation. Consequently, courts should construe CEPA liberally to achieve its remedial purpose.” Barratt, supra, 144 N.J. at 127. Stated differently, CEPA is supposed to encourage, not thwart, legitimate employee complaints. Consistent with CEPA's broad remedial purpose, we are satisfied that the Legislature did not intend to hamstring conscientious employees by requiring that they prove in all cases that their complaints involve violations of a defined public policy.
Needless to say, all laws and regulations are imbued with the public interest. We also acknowledge that prior to CEPA this Court recognized that employees at common law would be protected from “wrongful discharge when the discharge is contrary to a clear mandate of public policy.” Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980); see also Mehlman, supra, 153 N.J. at 180 87 (tracing CEPA's common-law roots and surveying applicable case law). Further, we recently observed that CEPA's “overriding policy . . . is to protect society at large.” Cedeno v. Montclair State Univ., 163 N.J. 473, 478 (2000). Those acknowledgments and observations are consistent with our analysis. The overall objective of CEPA is to protect society by shielding employees who expose illegal or deleterious activities at the workplace. The Legislature has attempted to accomplish that goal by designing a statutory scheme that protects employees who complain about activities that fall into three basic categories: activities that the employee reasonably believes are in violation of some specific statute or regulation (sections 3a. and 3c.(1)), are fraudulent or criminal (section 3c.(2)), or are incompatible with policies concerning the public health, safety or welfare or the protection of the environment (section 3c.(3)).
That latter category evidences a legislative recognition that certain forms of conduct might be harmful to the public although technically not a violation of a specific statute or regulation. We find no indication in the legislative history that section 3c.(3) was enacted for any other purpose but to encourage conscientious employees to disclose or object to activities encapsulated in that section. Thus, we would pervert the legislative intent if we required employees to prove the section 3c.(3) elements, or to establish some other violation of “public policy,” when asserting claims under the other sections of the statute. Moreover, by requiring aggrieved employees to reasonably believe that a violation of the civil or criminal law has occurred when asserting complaints under CEPA sections 3a., 3c.(1) and 3c.(2), the Legislature has already accommodated the public interest in those provisions of the statute. We see no reason, then, to mandate additional proofs in the case here.
In that regard, TRW asserts that the trial court should have granted its motion for judgment notwithstanding the verdict because plaintiff failed to demonstrate “a causal connection between the reports of wrongful activity by the employee and the allegedly retaliatory termination of employment.” TRW contends that there is no persuasive evidence that plaintiff was laid off due to complaints he made more than a year before the discharge. In addition, TRW argues that plaintiff's case should fail because Brown, not Briggs, made the decision to terminate plaintiff. As support, TRW asserts that Brown, one of defendant's most senior executives, did not even know about plaintiff's complaints when he (Brown) made a legitimate business decision not to have his division represented at the Fort Monmouth office.
“[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . .”
[Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (citations and quotations omitted)).]
“[T]hat standard ensures that appellate tribunals will not overstep their bounds by usurping the jury's task of assessing the credibility of the witnesses.” Ibid. Accordingly, we will disturb a jury's verdict “only if we find that the jury could not have reasonably used the evidence to reach its verdict.” Ibid.
Based on those standards, we are satisfied that the jury could have reasonably concluded that the layoff decision was motivated by plaintiff's allegations concerning his co-employees' conduct. In arriving at that conclusion, the jury could have inferred from the evidence that in deciding to terminate plaintiff, Brown relied on a “tainted” evaluation prepared by Briggs. Jurors also could have taken into account the fact that the Fort Monmouth office remained open and that other employees slated for possible dismissal were transferred or received a different job at TRW, were hired back as independent contractors, or voluntarily resigned.
Similarly, we find that the record adequately supports the jury's verdict in respect of CEPA sections 3c.(1) and 3c.(2). With regard to section 3c.(1), CEPA does not require that the activity complained of (in this case, the alleged violations of TRW's code of conduct) be an actual violation of a law or regulation, only that the employee “reasonably believes” that to be the case. The same holds true in respect of section 3c.(2): the statute affords protection to employees if they reasonably believe that the activity complained of is “fraudulent or criminal” even when the activity does not rise to the level of an actual crime. Mehlman, supra, 153 N.J. at 193-94 (“The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to . . . conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.”).
We are thus persuaded that the numerous improprieties alleged against plaintiff's co-employees could form the basis of a reasonable belief that unlawful conduct had occurred within the meaning of CEPA. During the period relevant to this action, TRW occupied a sensitive position as a federal defense contractor. In recognition of that position, TRW's code of conduct stressed the importance of the highest ethical conduct on the part of its employees. Based on that code's requirement of strict compliance, plaintiff reasonably could have believed that the allegations against DeBord and Vrungos rose to the level of significant improprieties consistent with CEPA sections 3c.(1) and 3c.(2).
Although the term “reasonably believes” in sections 3c.(1) and 3c.(2) provides ample justification to sustain the jury's verdict in the present case, we caution that in future cases that language may prove fatal to an employee's claim. For instance, if an employee were to complain about a co-employee who takes an extended lunch break or makes a personal telephone call to a spouse or friend, we would be hard pressed to conclude that the complaining employee could have “reasonably believed” that such minor infractions represented unlawful conduct as contemplated by CEPA. CEPA is intended to protect those employees whose disclosures fall sensibly within the statute; it is not intended to spawn litigation concerning the most trivial or benign employee complaints.
Lastly, plaintiff's supervisor was made aware of the co employees' alleged improper conduct and, rather than conduct an independent investigation, the supervisor discussed the matter with one of the subjects of the complaint and essentially dismissed the allegations. Similarly, the hotline attorneys did not respond or even look into plaintiff's allegations that co employees were engaging in fraudulent behavior, possibly arranging kickbacks, and padding accounts. Based on those facts, the jury had a basis to find that the employer had ratified the alleged employee conduct, thereby treating the complained-about activities as the employer's own conduct in satisfaction of CEPA section 3a. See Johnson v. Hospital Serv. Plan of N.J., 25 N.J. 134, 141 (1957) (observing that “[t]he intent to ratify an unauthorized transaction may be inferred from a failure to repudiate it”).
Although we might not share the jury's conclusion that the employer's inaction alone amounted to ratification, we are unwilling to substitute our judgment for that of the trier of fact. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, even if we assume that the co employees' alleged conduct did not implicate the company itself, the jury's findings in respect of sections 3c.(1) and 3c.(2) are sufficient to sustain the entire verdict. “[I]f there are numerous theories upon which the jury could have rested its determination, the verdict of the jury must be upheld if there is any one possible theory of liability . . . substantiated by the evidence taken as a whole . . . .” Sons of Thunder v. Borden, 285 N.J. Super. 27, 77 (App. Div. 1995) (Humphreys, J.A.D., dissenting) (citation and internal quotation marks omitted), rev'd, 148 N.J. 396 (1997).
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, and LaVECCHIA join in JUSTICE VERNIERO's opinion.
NO. A-74 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
ESTATE OF FRANK L. ROACH,
Plaintiff-Appellant,
and
KATHERINE BORAL,
Plaintiff,
v.
TRW, INC.,
Defendant-Respondent,
and
FRANCES KRUSE, Individually
and as Agent for TRW, Inc.,
Defendant.
DECIDED July 19, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Verniero
CONCURRING OPINION BY
DISSENTING OPINION BY