Doris Green was a science teacher in the Jersey City Public School system
for the thirty-year period from 1967 to 1997. In 1994, she sought and
obtained an assignment to Public School 22 because of the teacher programs offered
there. Green participated in training seminars and other non-classroom activities, including workshops in
mediating student disputes and increasing student interest in scholarships. She also attended a
summer program at Stevens Institute of Technology, for which she received no compensation
but which resulted in a $1,000 grant of computers and materials to her
classroom.
According to Green, she was asked in May of 1995 by her supervisor
and principal, Cassandra Wiggins, to expect a check for more than $500 on
behalf of another employee. Wiggins explained that the other teacher had supervised an
after-school program for which he did not have adequate credentials. Wiggins had submitted
Greens name and credentials to the District and was asking Green to give
the money to Wiggins when she received the check so that Wiggins could,
in turn, ensure the other teacher was compensated. Green refused to participate in
the scheme because she believed it to be fraudulent or illegal. Green presumed
the matter was closed.
Two months later, Green received a check for $543.63 that she deposited in
her bank account believing it to be payment for her participation in a
mediation program. It was not until Wiggins telephoned Green at home in July
asking whether Green had received the check and demanding payment that Green realized
the check she had deposited was not money she had earned. Green brought
the matter to the attention of the Vice Principal and then to Lorraine
Casey Church, the payroll supervisor for the Jersey City Board of Education. Church
advised Green to send a check to the Board enclosing a letter of
explanation and to have Wiggins call her.
Green followed Churchs instructions. Subsequently, Church returned the check to Green with a
note informing her that Wiggins had authorized Greens receipt of a portion of
the money and that the difference would be taken out of Greens next
paycheck. Green kept the remainder of the money, again believing that it was
for the mediation program.
When the school year started the following September, Wiggins informed Green that she
was very angry with her for reporting the incident to Church, and that
Green would no longer be able to participate in the Stevens Institute program
or the student mediation program. Green was told she was on Wigginss shit
list and that any requests Green made for additional programs or training would
be denied. A host of other retaliatory acts followed, including: Green was given
substandard evaluations even though her previous evaluations had been consistently satisfactory; she was
moved to a dilapidated classroom with inadequate furniture; and she was denied a
key to the science lab. In addition, Greens class was treated unfairly. Her
students were no longer allowed to participate in opening exercises, an honor roll
ceremony, or field trips. These incidents continued throughout two school years, from September
1995 to spring of 1997.
Green left her teaching position in May 1997 and went on medical leave
as a result of severe headaches and other physical symptoms. Her psychiatrist diagnosed
her with a major depressive disorder, finding a causal relationship between her work
situation and her illness. Green has never returned to teaching.
On May 14, 1997, Green filed suit against the Jersey City Board of
Education and several individual defendants, including Cassandra Wiggins, alleging defendants had engaged in
continuous and increased forms of harassment dating back to July 23, 1995. She
contended defendants behavior caused her loss of employment and that their harassing conduct
amounted to a violation of her rights under CEPA. Defendants countered that Greens
claims were barred by the Tort Claims Act (TCA) and the one-year statute
of limitations of CEPA.
The case was tried before a jury in February 2000. After both sides
had concluded, but before the jury rendered a verdict, the trial judge dismissed
both individual defendants and plaintiffs common law claims. On the CEPA claim, however,
the jury returned a verdict against the Jersey City School Board, awarding plaintiff
$265,000 in compensatory damages and $300,000 in punitive damages. The trial judge imposed
prejudgment interest on both awards.
On appeal, the Jersey City Board of Education argued, among other things, that
the TCA bars punitive damages in CEPA claims and that prejudgment interest is
not allowable on punitive damages. In an unpublished opinion, the Appellate Division affirmed
the jury verdict, but reversed the award of prejudgment interest on punitive damages.
The Supreme Court granted the Jersey City Board of Educations petition for certification.
HELD: Punitive damages may be awarded under CEPA against public entity defendants in
appropriate cases. The CEPA one-year statu
t
e of limitations begins to run from the
final action of retaliation.
1. The Legislature enacted CEPA to protect employees who report illegal or unethical
work-place activities. In Abbamont v. Piscataway Bd. of Educ.,
138 N.J. 405 (1994)
(Abbamont I), this Court was evenly divided on the question whether punitive damages
are available in a CEPA action brought against a public body. CEPA defines
employers to include governmental entities and specifically permits a court to award punitive
damages. The justices concurring in the judgment of the Appellate Division cited to
these provisions, explaining that the Legislature easily could have exempted government entities from
CEPAs punitive damages provision had it wished to do so. They also compared
CEPA to the Law Against Discrimination (LAD), finding support for punitive damages against
public sector defendants in the unique legislative purpose of the two statutes. Most
important, the concurring justices turned to the heightened standard the Court had adopted
for imposing punitive damages against public entities, which require willful indifference or actual
participation by upper management. In Lockley v. Dept. of Corrections, __ N.J. __
(2003), also decided today, the Court emphasized the importance of that heightened standard
when considering whether an award of punitive damages is warranted in the first
instance. Since the opinion of Abbamont I nine years ago, the Court has
repeatedly requested the Legislature to take up the issue of punitive damages against
public entities if it deems the Courts interpretation mistaken. The Legislature has not
acted. The Court can only assume from that silence that it intended to
subject public entities to punitive damages under CEPA. (pp. 7-15)
2. The Jersey City Board of Education also asserts that because the retaliatory
conduct began in September 1995, and Greens complaint was filed on May 14,
1997, her lawsuit is barred by the one-year statute of limitations. This Court
has held that under the LAD, where an individual is subject to a
continual pattern of tortious conduct, the statute of limitations does not begin to
run until the wrongful action ceases. The policy concerns underpinning that determination in
respect of LAD claims require the application of the same framework in CEPA
claims. Adverse employment action taken against an employee can include, as it did
in this case, many separate instances of behavior. Because the acts of retaliation
against Green continued until she resigned her teaching position in May 1997, and
because Green filed her lawsuit on May 14, 1997, CEPAs one-year statute of
limitations does not bar her claim. (pp. 15-19)
Judgment of the Appellate Division is AFFIRMED.
JUSTICES VERNIERO, LaVECCHIA, and ALBIN filed a separate, dissenting opinion, expressing the view
that the States presumptive immunity from punitive damage awards can be breached only
by a clear and unmistakable pronouncement by the Legislature. Such a pronouncement is
not found in CEPA.
JUSTICES COLEMAN, LONG and ZAZZALI join in CHIEF JUSTICE PORITZs opinion. JUSTICES VERNIERO,
LaVECCHIA, and ALBIN have filed a separate, dissenting opinion.
SUPREME COURT OF NEW JERSEY
Plaintiff-Respondent,
v.
JERSEY CITY BOARD OF EDUCATION, a body corporate and politic,
Defendant-Appellant,
and
CASSANDRA WIGGINS, individually, SHERYL SULLIVAN, individually and FRANK PICCILLO, individually,
Defendants.
Argued January 6, 2003 Decided August 11, 2003
On certification to the Superior Court, Appellate Division.
Howard B. Mankoff argued the cause for appellant (Marshall, Dennehey, Warner, Coleman &
Goggin, attorneys).
Alan L. Krumholz argued the cause for respondent.
Jon W. Green argued the cause for amicus curiae, National Employment Lawyers Association
of New Jersey (Green, Lucas, Savits, & Marose, attorneys; Mr. Green and Glen
D. Savits, on the briefs).
Patrick DeAlmeida, Deputy Attorney General, submitted a brief on behalf of amicus
curiae, Attorney General of New Jersey (David Samson, Attorney General, attorney; Karen L.
Jordan, Deputy Attorney General, on the brief).
tak[ing] any retaliatory action against an employee because the employee . . .
:
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 a law
Most important, in response to concerns regarding an award of punitive damages against
public entities, Justice Handler turned to the heightened standard [the Court] ha[d] adopted
for imposing . . . damages against [such] entities, id. at 429, stating:
Under [the Lehmann v. Toys R Us, Inc.,
132 N.J. 587, 624-25 (1993)]
heightened standard for liability, punitive damages may be awarded only if the conduct
of managerial or supervisory government officials is particularly egregious and involves willful indifference
or actual participation. Based on that kind of misuse of governmental authority, punitive
damages serve to effectuate the goals of a statute that is specifically designed
to discourage and eradicate vindictive action by employers and to further important interests
of both employees and the public.
That same year, four months later, Justice Verniero again asked the Legislature to
consider the question, restating Justice Pollocks conclusion that [t]he best solution would be
for the Legislature to revisit the issue and resolve it definitively. Abbamont II,
supra, 163 N.J. at 15 (quoting Abbamont I, supra, 138 N.J. at 436
(Pollock, J., concurring and dissenting)).
For nine years the Court repeatedly has requested that the Legislature take up
the issue of punitive damages against public entities if it deems our interpretation
to have been mistaken. The Legislature has not acted. We can only assume
from that silence that it intended to subject public entities to punitive damages
under CEPA. See Lemke v. Bailey,
41 N.J. 295, 301 (1963) (The construction
of a statute by the courts, supported . . . by continued use
of the same language or failure to amend the statute, is evidence that
such construction is in accordance with legislative intent. . . .); accord Cavuoti,
supra, 161 N.J. at 133 (There is ample precedent to support the proposition
that, when a statute has been judicially construed, the failure of the Legislature
subsequently to act is evidence of legislative acquiescence in the construction given to
the statute.) (collecting cases); Matter of Mun. Election Held on May 10, 1994,
139 N.J. 553, 559 (1995) (Legislative acquiescence in the interpretation of a statute
. . . provides some assurance that our interpretation comports with the intent
of the Legislature.); Egan v. Erie R.R. Co.,
29 N.J. 243, 250 (1959)
(stating that Legislatures failure to respond to courts interpretation of statute is evidence
that such interpretation accords with legislative intent).
Hostile environment claims are different in kind from discrete acts. Their very nature
involves repeated conduct. The unlawful employment practice therefore cannot be said to occur
on any particular day. It occurs over a series of days or perhaps
years and, in direct contrast to discrete acts, a single act of harassment
may not be actionable on its own. Such claims are based on the
cumulative [e]ffect of individual acts.
That act need not, however, be the last act. As long as the
employer has engaged in enough activity to make out an actionable hostile environment
claim, an unlawful employment practice has occurred, even if it is still occurring.
Subsequent events, however, may still be part of the one hostile work environment
claim and a charge may be filed at a later date and still
encompass the whole.
[Id. at 19-20 (quoting Morgan, supra, 536 U.S. at 115-17, 122 S. Ct.
at 2073-74,
153 L. Ed. 2d at 123-25 (citations and footnotes omitted))].
This Court adopted Morgans schema for determining when a cause of action arising
under the LAD would be considered a continuing violation. Id. at 21. Most
relevant here, we required an inquiry into whether the plaintiff[] [had] alleged a
pattern or series of acts, any one of which may not be actionable
as a discrete act, but when viewed cumulatively constitute a hostile work environment[.]
Ibid. If the answer to that question is yes then [plaintiffs] cause of
action accrued on the date on which the last act occurred, notwithstanding that
some of the component acts of the hostile environment [were] outside the statutory
time period. Ibid.
The policy concerns underpinning the determination in Shepherd in respect of LAD claims
require the application of the Morgan/Shepherd framework in CEPA actions. Retaliation, as defined
by CEPA, need not be a single discrete action. Indeed, adverse employment action
taken against an employee in the terms and conditions of employment, N.J.S.A. 34:19-2e,
can include, as it did in this case, many separate but relatively minor
instances of behavior directed against an employee that may not be actionable individually
but that combine to make up a pattern of retaliatory conduct. As Justice
Handler said in Abbamont I, supra, CEPA,
like LAD, is a civil rights statute. Its purpose is to protect and
encourage employees to report illegal or unethical workplace activities and to discourage public
and private sector employers from engaging in such conduct. Consistent with that purpose,
CEPA must be considered remedial legislation and therefore should be construed liberally to
effectuate its important social goal.
JUSTICES COLEMAN, LONG and ZAZZALI join in CHIEF JUSTICE PORITZs opinion. JUSTICES VERNIERO,
LaVECCHIA, and ALBIN have filed a separate, dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
134 September Term 2001
DORIS GREEN,
Plaintiff-Respondent,
v.
JERSEY CITY BOARD OF
EDUCATION, a body corporate
and politic,
Defendant-Appellant,
and
CASSANDRA WIGGINS,
individually, SHERYL
SULLIVAN, individually and
FRANK PICCILLO, individually,
Defendants.
VERNIERO, LaVECCHIA, and ALBIN, JJ., dissenting.
The majority holds that the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to 9
(CEPA), permits an award of punitive damages against a public entity, in this
case an Abbott school district serving poor school children. The decision to allow
punitive damages in this setting is not necessary to make the victim whole,
for that has been accomplished by the award of compensatory damages and counsel
fees. The decision, however, will result in taking scarce resources from needy students.
In our view, allowing punitive damages against a public entity is so far
contrary to the interests of the public, we would have expected the Legislature
to speak clearly and unambiguously if it intended such a declaration against the
peoples self-interest, as was pointed out in the well-reasoned opinion of Justice Pollock
in Abbamont v. Piscataway Board of Education,
138 N.J. 405, 435-36 (1994) (Pollock,
J., concurring and dissenting).
We believe that sovereign immunity is the baseline, as did the dissent in
Abbamont. When the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), reasserted the
States sovereign immunity (except where the TCA allowed suit to be brought), it
specifically reaffirmed the common law that punitive damages are not available against the
State. N.J.S.A. 9:9-2(c). In our view, the States presumptive immunity from punitive damage
awards can be breached only by a clear and unmistakable expression by the
Legislature. The CEPA does not contain that unambiguous pronouncement. Nowhere in the Act
or its history is there an expression of legislative intent to alter the
decades of law that prohibited punitive damages against public entities.
The Court applies an abbreviated version of the Punitive Damages Act, N.J.S.A. 2A:15-5.9
to 5.17 (PDA), as the standard for an award of punitive damages against
a public entity. That the Legislature did not contemplate the use of the
PDA for punitive damage awards against public entities is clear from the language
of the Act. The PDA was premised on a private sector, profit-oriented model
and, therefore, was not intended to apply to public entities. In todays companion
case of Lockley v. Department of Corrections, __ N.J. __, __ (2003) (slip
op. at 24-26), the Court recognizes the illogic of having a jury determine
how much of the state budget (or, as here, that of a political
subdivision) can or should be considered when fashioning a punitive damage award, and
removes from the jurys consideration the financial impact on the taxpayers. However, taking
away an additional limitation on the size of punitive damage awards, places public
entities at risk of being treated more harshly than private sector entities, or
even individuals.
Consideration of the financial ability of a private person or entity was one
means of keeping within check a runaway punitive damages award in those cases
where there were limited resources to tap. The absence of that factor in
the calculation of punitive damages in public entity cases may lead a jury
naturally to assume that a public entity has the wherewithal through its power
of taxation to pay almost any award. It seems incongruent that the Legislature
would have taken such care to establish limiting principles for the award of
punitive damages as against the private sector, but have provided no guidance on
how such awards should be imposed on public entities.
The problem with punitive damages against public entities is that it is unworkable
and inflicts punishment not on the wrongdoer but on the innocent taxpayer. Moreover,
if upper level managers are not deterred by the prospect of punitive damages
being awarded against them personally, they are unlikely to be deterred by the
threat of a punitive damages award against the public entity for which they
work. Indeed, there already is great deterrent value in having a public entity
pay a compensatory damages award and counsel fees. To transfer the penalty of
punitive damages to the innocent taxpayer does not advance any salutary purpose. City
of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 272,
101 S. Ct. 2748, 2762,
69 L. Ed.2d 616, 635 (1981) (holding that considerations of
history and policy do not support exposing a municipality to punitive damages for
the bad-faith actions of its officials in § 1983 federal civil rights cases).
If the majority has interpreted the CEPA mistakenly to permit punitive damages against
public entities, the Legislature is not without a remedy. Whether permitting punitive damage
awards against public entities is good public policy is ultimately the decision of
our elected representatives. Their silence or action will be conclusive on the issue.
We respectfully dissent.
SUPREME COURT OF NEW JERSEY
NO. A-134 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
DORIS GREEN,
Plaintiff-Respondent,
v.
JERSEY CITY BOARD OF
EDUCATION, a body corporate
Politic,
Defendant-Appellant.
DECIDED August 11, 2003
Chief Justice Poritz PRESIDING
OPINION BY Chief Justice Poritz
CONCURRING OPINION BY
DISSENTING OPINION BY JJ. Verniero, LaVecchia and Albin
CHECKLIST
Footnote: 1
The trial judge imposed prejudgment interest of $33,097.38 for the compensatory damages award
and $37,468.75 for the punitive damages award. Defendants were ordered to pay $89,056.23
in counsel fees and $8,651.47 in reimbursement expenses.
Footnote: 2
In Pierce, the Court held that, at common law, [a]n employers right to
discharge an employee at will carries a correlative duty not to discharge an
employee who declines to perform an act that would require a violation of
a clear mandate of public policy. Pierce, supra, 84 N.J. at 72.
Footnote: 3
A three-three decision by this Court does not carry precedential weight, although the
opinion of the three justices affirming the court below becomes the controlling law
for subsequent judicial proceedings in that case. Abbamont II, supra, 163 N.J. at
14; id. at 15 (Verniero, J., concurring); Anderson v. Somberg,
158 N.J. Super. 384, 390-91 (App. Div.), certif. denied,
77 N.J. 509 (1978).
Footnote: 4
We recognize that the majority of states bars the imposition of punitive damages
against public entities either by statute or judicial decision. See, e.g., Ariz. Rev.
Stat. § 41-621K (West 2003) (immunizing public entities from liability for punitive damages); Cal.
Govt Code § 818 (West 1995) (same); Metro. Atlanta Rapid Auth. v. Boswell,
405 S.E.2d 869, 870 (Ga. 1991) (holding that the imposition of punitive damages against
public entities violates public policy and therefore is impermissible as a matter of
law); Sharapata v. Town of Islip,
437 N.E.2d 1104, 1105-1107 (N.Y. 1982) (holding
that state and political subdivisions are not subject to punitive damages). In Connecticut,
however, punitive damages may be imposed against public entities for a reckless indifference
to . . . or an intentional and wanton violation of th[e] rights
of others. Kenny v. Civil Serv. Commn,
496 A.2d 956, 960 (Conn. 1985)
(quoting Vandersluis v. Weil,
407 A.2d 982, 986 (Conn. 1982)). Massachusetts has interpreted
certain enactments to allow for punitive damages against public entities. See, e.g., Bain
v. City of Springfield,
678 N.E.2d 155, 159-60 (Mass. 1997) (holding that state
anti-discrimination statute specifically subjects public entities to punitive damages).