SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-903-99T2
JONATHAN K. LITTMAN,
Plaintiff-Appellant,
v.
MORGAN STANLEY DEAN WITTER,
RICHARD LESS, KATHY KOC,
CINDY KOC, MICHAEL GEE AND
KAREN MONROE,
Defendants-Respondents.
Argued November 8, 2000 - Decided February 14, 2001
Before Judge Stern, A. A. Rodríguez and Collester.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
No. L-4271-99.
Robert Ricci, Jr., argued the cause for
appellant (Cohn Lifland Pearlman Herrmann
& Knopf, attorneys; Mr. Ricci, Jr., on
the brief).
J. Michael Riordan and John K. Bennett argued
the cause for respondents ( Connell, Foley,
attorneys for respondent Richard Less;
Bressler, Amery & Ross, attorneys for all
other respondents; Mr. Riordan and Mr. Bennett,
of counsel; Kevin B. Walker, on the joint brief).
The opinion of the court was delivered by
STERN, P.J.A.D.
Plaintiff, Jonathan K. Littman, appeals from an order
entered on August 6, 1999, compelling him "to arbitrate his
claims against Defendants in the National Association of Security
Dealers, Inc. ["NASD"] in accordance with the terms of the
executed Form U-4" and dismissing his complaint, and from an
order of September 14, 1999, denying his motion for
reconsideration. Plaintiff's complaint alleged violations of the
Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1
et seq. He asserts that "the reason for plaintiff's termination
. . . was the result of plaintiff's refusal to participate in the
'Monopoly Game'" which is "nothing more than an unsophisticated
company-wide policy of institutional tax fraud," resulting from a
fabrication of expense receipts in exchange for cash.See footnote 11
Plaintiff argues that the trial court erred in dismissing
the CEPA count because he "is only required to submit to
arbitration those claims for which the NASD requires
arbitration," that the NASD rules do not require litigation of
statutory discrimination claims including CEPA claims, and that
"even if [a] CEPA claim is not a 'statutory employment
discrimination claim[,]' [it] is still not subject to
arbitration." Hence, the principal issue before us, in
plaintiff's words, "is whether a claim under [CEPA] is a
'statutory employment discrimination claim' as that phrase is
defined by the [NASD]."
For purposes of the defendants' "motion to compel arbitration," we must accept the following facts as asserted by plaintiff. Plaintiff was hired by defendant Morgan Stanley Dean Witter ("MSDW") as a financial advisor in 1997. He received "positive performance reviews" in 1997 and 1998, and was ranked "seventh (7th) nationally in his graduating class of one hundred forty seven." In fact, "[h]e was even recruited [by MSDW] to give a speech . . . at the firm's next training class" for new broker dealers.
Plaintiff claims that in or about December 1988, he expressed concern to defendant Richard Less, MSDW's Fairfield branch manager, regarding "the legality of an employee bonus program called the 'Monopoly Game.'" Specifically, plaintiff questioned the fact "that the fabrication of expense receipts in exchange for cash was in violation of the federal tax code as he understood it." Less had allegedly been previously notified of the concern by Colleen McLaughlin, a sales assistant in the Fairfield office, "as early as September 1998." Plaintiff further contends that on or about December 7, 1998, he informed Less of his intention to marry McLaughlin and that Less responded by saying that plaintiff "could no longer work with McLaughlin." Plaintiff was terminated shortly thereafter, he says "in or about December of 1998," for "insubordination."See footnote 22 At that time, plaintiff was informed that he would have to "turn over" his "book of clients" to MSDW. He claims that when he refused to do so, Less contacted the Fairfield Police who escorted plaintiff out of the building.
"The NASD is a self-regulatory organization of securities brokers and dealers, as defined by 15 U.S.C.A. §78c(a)(26), subject to regulation by the Securities and Exchange Commission ("SEC"). [See 15 U.S.C.A. §78o-3 et seq.] See generally [] 15 U.S.C. §78[a] et seq." Young v. Prudential Ins. Co. of Am., Inc., 297 N.J. Super. 605, 609 (App. Div.), certif. denied, 149 N.J. 408 (1997). The NASD Code of Arbitration Procedure has been promulgated by the NASD of which defendant MSDW is a member. Plaintiff was required to register with the NASD as a condition of employment. In so doing, he was required to sign the "Uniform Application for Securities Industry Registration or Transfer" Form ("Form U4") which reads, "THE APPLICANT MUST READ THE FOLLOWING VERY CAREFULLY." Immediately following this instruction, the Form U-4 provides the following:
I swear or affirm that I have read and understand the items and instructions on this form and that my answers (including attachments) are true and complete to the best of my knowledge. I understand that I am subject to administrative, civil or criminal penalties if I give false or misleading answers.
The Form U-4 further provides:
I agree to arbitrate any dispute, claim or
controversy that may arise between me and my
firm, or a customer, or any other person,
that is required to be arbitrated under the
rules, constitutions, or by-laws of the
organizations indicated in Item 10 as may be
amended from time to time . . . .
In Item 10 of the Form U-4, plaintiff registered with the NASD
and agreed to be bound by the NASD Code.
Rule 10201(a) of the NASD Code identifies the controversies
that are subject to mandatory arbitration, as follows:
Except as provided in paragraph (b), a
dispute, claim, or controversy eligible for
submission under the Rule 10100 Series
between or among members and/or associated
persons, and/or certain others, arising in
connection with the business of such
member(s) or in connection with the
activities of such associated person(s), or
arising out of the employment or termination
of employment of such associated person(s)
with such member, shall be arbitrated under
this Code at the instance of:
(1) a member against another member;
(2) a member against a person associated with
a member or a person associated with a member
against a member; and
(3) a person associated with a member against
a person associated with a member.
(emphasis added).See footnote 33
On October 17, 1997, the NASD filed a proposed amendment to Rule
10201 with the SEC which created an exception to mandatory
arbitration of statutory employee discrimination claims.See footnote 44 The
proposed amendment was published in the Federal Register for
comment.
62 Fed. Reg. 66164 (December 17, 1997).
On April 15, 1998, in response to the original comments, the
NASD filed an amendment to the proposed rule change with the SEC.
The proposed amendment to Rule 10201(b), provided:
A claim alleging employment discrimination,
including a sexual harassment claim, in
violation of a statute is not required to be
arbitrated. Such claim may be arbitrated
only if the parties have agreed to arbitrate
it, either before or after the dispute
arose.See footnote 55
The NASD, in its written interpretive statement to the SEC,
under a section entitled "Type of Claims Covered," provided the
scope of the amended rule:
One commenter contends that the exception to
the arbitration requirement should apply to
all statutory employment claims, such as
those under the Family and Medical Leave Act
or ERISA, and not just statutory claims of
employment discrimination. Some commenters
express the view that the exception should be
extended to all common law claims. They
believe that common law claims such as
wrongful termination, intentional infliction
of emotional distress, defamation, negligent
supervision, invasion of privacy, and
tortious interference with economic
opportunity often join statutory claims of
employment discrimination. . . .
Alternatively, the commenters fear that the
court proceedings could be stayed pending
resolution of the other claims in
arbitration, and that the award could have
res judicata or collateral estoppel effect on
the court proceeding, thus denying the
employee a complete hearing in court. An
industry commenter also expresses concern
that parties may file pretextual claims in
court to gain the advantage of more liberal
discovery that can then be used in
arbitration. This commenter also urges that
investigative files of the Equal Employment
Opportunity Commission and similar state
agencies not be subject to discovery or use
in arbitration.
The NASD drafted the proposed rule carefully
to specify that the exception for claims of
statutory employment discrimination claims
was in fact just that: an exception to the
long-standing rule that requires arbitration
of disputes between members and associated
persons. The interest groups that gave their
views to the NASD during the consideration of
this rule change focused their concerns on
employment discrimination claims made under
Title VII of the Civil Rights Act of 1964 and
other federal anti-discrimination
legislation, not on other federal laws or
common law claims such as those listed above.
It was generally understood that such other
claims would remain subject to the
arbitration requirement. Parties are, of
course, free to make other agreements; some
firms may agree to have all claims
consolidated in court, while some employees
may decide to proceed with all claims in
arbitration. The NASD will observe
developments in this area, and may consider
amendments to the rule in the future if
bifurcation proves to be a serious problem.
(Internal footnotes omitted; emphasis added.)
On June 28, 1998, the SEC, pursuant to U.S.C.A. § 78s(b)-
(c), approved the NASD's proposed amendment to Rule 10201,
"[e]ffective on January 1, 1999." See
63 Fed. Reg. 35299 (June
29, 1998). In its statement promulgating the amended rule, the
SEC provided that:
Paragraph (b) does not apply to causes of
action created solely by judicial precedents
or to other causes of action under state or
federal law, which remain subject to
mandatory arbitration under paragraph (a).
. . . .
Such judicially created causes of action
might include, for example, claims alleging
"wrongful discharge" without any accompanying
claim of discrimination on account of age,
sex, race, or other status protected by a
specific law.
[
63 Fed. Reg. 35299 ("order granting approval
to proposed rule change" dated June 29, 1998)
(emphasis added).]
Thereafter, the NASD published a document entitled "NASD
Regulation Publishes Frequently Asked Questions Relating To
Arbitration of Employment Discrimination Claims," dated December
7, 1998. The relevant portion of this document is as follows:
Q: What exactly does the amendment do?
A: It creates an exception to the requirement
in NASD Rule 10201 for associated persons to
arbitrate all disputes arising out of their
employment or termination of employment with
a member. The exception says that claims
alleging employment discrimination, including
sexual harassment claims, in violation of a
statute are not required to be arbitrated.
Such claims remain eligible but may be
arbitrated only if the parties have agreed to
arbitrate them, either before or after the
dispute arose.
. . . .
Q: When will the rule change be effective?
A: It will be effective on January 1, 1999,
for claims filed on or after that date.
. . . .
Q: What is considered to be a "statutory
claim" of employment discrimination?
A: The term includes claims of employment
discrimination in violation of a
"statute," which is defined broadly to
include a federal, state, county, or
municipal law or ordinance, as well as
regulations or interpretations under
such law or ordinance issued by a
governmental body. This would include,
for example, a claim of sexual
harassment or pregnancy discrimination
in violation of EEOC Guidelines issued
pursuant to Title VII of the Civil
Rights Act of 1964, even though such
forms of discrimination are not
mentioned in the statute itself.
(emphasis added).
Neither party claims that the former rule applies to this termination which occurred before the effective date of the amended regulation. In fact, plaintiff pursues this litigation premised upon the amendment which was effective after his termination.See footnote 66 In the absence of any dispute by defendants with respect to this fact, we proceed on the assumption the new rules apply.
Plaintiff contends that he "is only required to submit to arbitration those claims for which the NASD requires arbitration." While acknowledging the mandatory arbitration of claims specified by the NASD, he asserts that a claim under the CEPA is exempt from arbitration in accordance with the amended rule. Hence the critical issue before us is whether a CEPA claim is "a claim alleging employment discrimination" within the meaning of the amended rule 10201(b).
In asserting that he alleges an "employment discrimination claim," plaintiff relies upon the United States District Court's decision in Bowles v. City of Camden, 993 F. Supp. 255, 261 (D.N.J. 1998), in which the court held that because the elements of a CEPA claim "are similar to those necessary to prove a violation of Title VII" of the Civil Rights Act of 1964, Title VII principles would be utilized as the "landscape for analyzing [] CEPA claims." However, the court in Bowles did not hold that CEPA was an employment discrimination statute, nor addressed whether CEPA would qualify as such under the NASD Code.
As noted above, the NASD commentary interpreting the proposed amendment to Rule 10201(b), as presented to the SEC, provided:
Some commenters express the view that the exception should be extended to . . . common law claims such as wrongful termination, intentional infliction of emotional distress, defamation, negligent supervision, invasion of privacy, and tortious interference with economic opportunity . . . .
. . . .
. . . The interest groups that gave their
views to the NASD during the consideration of
this rule change focused their concerns on
employment discrimination claims made under
Title VII of the Civil Rights Act of 1964 and
other federal anti-discrimination
legislation, not on other federal laws or
common law claims such as those listed above.
It was generally understood that such other
claims would remain subject to the
arbitration agreement.
(internal footnotes omitted).
Although not binding, the commentary is entitled to "deference,"
particularly because the SEC adopted the rule change after its
promulgation. First Heritage Corp. v. NASD,
785 F. Supp. 1250,
1251 (E.D. Mich. 1992) (citing Shearson/American Express, Inc. v.
McMahon,
482 U.S. 220, 234,
107 S. Ct. 2332, 2341,
96 L. Ed.2d 185, 199 (1987), reh'g denied,
483 U.S. 1056,
108 S. Ct. 31,
97 L. Ed.2d 819 (1987). Here, the commentary indicates that the
NASD intended to exempt from mandatory arbitration only statutory
claims similar to those derived from Title VII.
CEPA was not a derivative of Title VII but rather a
codification of a common law cause of action. In Pierce v. Ortho
Pharmaceutical Corp.,
84 N.J. 58, 72 (1980), the Supreme Court
held that even "an employee [at will] has a cause of action for
wrongful discharge when the discharge is contrary to a clear
mandate of public policy." Consistent with the Pierce decision,
in Potter v. Village Bank,
225 N.J. Super. 547, 560-61 (App.
Div.), certif. denied,
113 N.J. 352 (1988), we determined a
"whistle blower" has a cause of action based upon "retaliatory
discharge from employment in violation of a clear mandate of
public policy." Speaking through Judge (now Justice) Coleman, we
said:
It is now apparent that Pierce does not
require an at will employee's claim of
retaliatory discharge to be based on a
specific statute which proscribes a
particular type of discharge. Rather, an
employer's obligation to refrain from
discharging an employee who reports suspected
criminal activities to law enforcement
officials reflects a duty imposed upon all
employers . . . in order to implement the
fundamental public policies embodied in the
State and federal penal statutes.
. . . .
Additionally, after plaintiff's employment
was terminated, the Legislature enacted the
Conscientious Employee Protection Act,
N.J.S.A. 34:19-1 et seq. See L.1986, c. 105,
§1, effective September 5, 1986. Under the
act, an employee who has been terminated
because of reporting suspected criminal
violations, has the right to file a
retaliatory tort claim in addition to other
remedies. N.J.S.A. 34:19-3. We read this
legislative enactment as a codification of
public policy established through judicial
decisions.
Id. at 558, 560 (emphasis added).
As Potter indicates, CEPA was not a derivative of Title VII or
other federal discriminatory statutes, but rather a codification
of the public policy provided in Pierce and subsequent cases
which had established common law claims. Ibid.; see Barratt v.
Cushman & Wakefield,
144 N.J. 120, 126 (1996) (noting that CEPA
is a codification of the Supreme Court's ruling in Pierce); see
also Falco v. Community Med. Ctr.,
296 N.J. Super. 298, 310 (App.
Div. 1997), certif. denied,
153 N.J. 405 (1998). In fact, a
plaintiff must elect between his common law and CEPA statutory
claims. See N.J.S.A. 34:19-8 (providing that "the institution of
an action in accordance with this act shall be deemed a waiver of
the rights and remedies available under any other contract,
collective bargaining agreement, State law, rule or regulation or
under the common law");See footnote 77 see also Mehlman v. Mobil Oil Corp.,
153 N.J. 163, 196-97 (1996).
While we have "recognize[d] that CEPA, similar to the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, is a
civil rights statute," Zappasodi v. State,
335 N.J. Super. 83, 89
(App. Div. 2000),See footnote 88 CEPA embodies a remedy based on unlawful
retaliation against any employee, as opposed to one designed to
protect against a discriminated class. As the trial judge stated
in granting the motion to compel arbitration:
Generally speaking, what CIPA [sic] did
was to put in statutory form the common law
cause of action for wrongful discharge first
recognized in Pierce v. Ortho Pharmaceutical
Company. CIPA [sic] established a statutory
exception to the general rule that an
employer can terminate an at will employee
with or without cause. Given the history of
CIPA [sic], its general purposes, and the
history of the rule amendment, in the Court's
view the exception in N.A.S.D.'s rules for
employment discrimination claims is just
that.
It is an exception to claims made based
on adverse treatment being given to an
employee by virtue of their status, by virtue
of their age, their gender, their religion or
their race, not based on their activities.
New Jersey courts have enforced employees' Form U-4
agreements to arbitrate claims under the CEPA. See generally,
Young v. Prudential Ins. Co. of America,
297 N.J. Super. 605
(App. Div.), certif. denied,
149 N.J. 408 (1997); see also Singer
v. Commodities Corp.,
292 N.J. Super. 391 (App. Div. 1996); see
also Bleumer v. Parkway Ins. Co.,
277 N.J. Super. 378 (Law Div.
1994). We fail to believe that the NASD or SEC intended to
affect these precedents without a clearer statement of intent.
In 1994, the Law Division in Bleumer held that required
mandatory arbitration was applicable to claims under the CEPA
pursuant to an arbitration agreement.See footnote 99 277 N.J. Super. at 402-
06. Judge Schwartz found that plaintiff was bound by the
arbitration agreement and that his CEPA claim was subject to
arbitration in accordance with the agreement. Id. at 397-98.
Subsequently, in Singer, we enforced an arbitration
agreement included in the standard NASD Form U-4 against an
employee who asserted a defamation and CEPA claim. 292 N.J.
Super. at 405-08. Judge Michels cited the "well-accepted
principle that New Jersey supports the settlement of disputes by
arbitration," id. at 400, and concluded that "compelling
arbitration under these circumstances is neither unfair nor
inequitable and does not deprive plaintiff of any fundamental or
substantive rights." Id. at 407.
Most recently in Young, we held that the Form U-4 requiring
plaintiff to arbitrate any claims against his firm, in accordance
with the NASD Code was enforceable. 297 N.J. Super. at 617-21.
Plaintiff, as here, was required to sign the U-4 form as a
condition of employment. Id. at 609. After his discharge, he
filed a CEPA and LAD claim and "challenge[d] the enforceability
of the arbitration provision [in the U-4 form] on several
grounds. He contend[ed] that he ha[d] a statutory right to a
jury trial of his CEPA and LAD claims and that he did not
knowingly waive the right to jury trial." Id. at 614-15. We
rejected the contention. Pointing to the United States Supreme
Court's opinion in Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 29,
111 S. Ct. 1647, 1653-54,
114 L. Ed.2d 26, 39
(1991), Judge Wecker stated:
[O]nly if the statute or legislative history
evidence an intention to preclude alternate
forms of dispute resolution will arbitration
agreements be unenforceable . . .
The FAA preempts any state law
purporting to invalidate an arbitration
agreement involving interstate commerce . . .
In any event, there is no evidence in the
text or legislative history of CEPA or LAD
that members of the classes protected by
those statutes cannot waive the right to jury
trial by agreeing to arbitrate disputes with
their employers.
[Id. at 616 (citations omitted).]
Judge Wecker further noted that the U-4 arbitration provision was
enforceable "even if it is literally a contract of adhesion."
Id. at 620. She added:
[T]he overall subject matter-_registration
and regulation of persons selling securities
to the public_-is already subject to review
and oversight by the Securities and Exchange
Commission ("SEC"). See
15 U.S.C.A.
§78o-
3(g), (h). The widespread use of the U-4
makes its uniform interpretation and
enforcement a matter of substantial public
interest. Accordingly, Young is bound by his
agreement to arbitrate in accordance with
NASD rules.
[Id. at 621.]
Young was permitted to litigate his CEPA claim only because of
the NASD rule which excepted "disputes involving the insurance
business of any member which is also an insurance company,"
ibid., and reversed the dismissal of the CEPA claim on that basis
only. Id. at 621-28.
Plaintiff contends that in 1990, the CEPA was revised to
provide for a jury trial for any aggrieved party under the Act.
N.J.S.A. 34:19-5. Plaintiff further contends that this
legislative action "evidences a strong legislative intent which
would preclude an alternate form of dispute resolution,
particularly one which did not provide for the benefit of a jury
trial." However, Young and Singer were decided after the 1990
revision, 297 N.J. Super. at 605; 292 N.J. Super. at 391; see
also Bleumer, 277 N.J. Super. at 399 (rejecting this argument).
Moreover, the right to jury trial, even under an anti-
discrimination statute, does not alone control the issue of
enforceability of an agreement to arbitrate. See, e.g.,
Garfinkel v. Morristown Obstetrics & Gynecology Assocs.,
333 N.J.
Super. 291, 299-300 (App. Div. 2000); Quigley v. KPMG Peat
Marwick, LLP,
330 N.J. Super. 252, 269 (App. Div.), certif.
denied,
165 N.J. 527 (2000);See footnote 1010 Alamo Rent A Car, Inc. v. Galarza,
306 N.J. Super. 384, 389 (App. Div. 1997).
Plaintiff contends that even if the CEPA is not an
employment discrimination statute within the meaning of the NASD
Code, all claims under the CEPA should be exempt from mandatory
arbitration with the NASD as a "general trend away from requiring
mandatory arbitration of employment disputes" has been
established. We recognize that the NASD Code was not written
exclusively for New Jersey securities dealers and brokers or with
the law of this State exclusively in mind. But as Singer and
Young evidence, questions of arbitrability relating to the NASD
Code have been decided under State law in cases like this, see
Young, supra, 297 N.J. Super. at 616-17; Singer, supra, 292 N.J.
Super. at 404-05, and we cannot subscribe to the view that the
amendment which would outdate our precedent favoring Code
enforcement had the impact plaintiff suggests without a greater
expression of that endeavor by the NASD. Nor does the Code
amendment impact longstanding state and federal policy favoring
arbitration. The public policy in favor of arbitration is set
forth in the Federal Arbitration Act,
9 U.S.C.A.
§2, as well as
State law. See, e.g., N.J.S.A. 2A:24-1. Our State's policy in
favor of arbitration is well settled. See, e.g., Garfinkel,
supra, 333 N.J. Super. at 297-300; Quigley, supra, 330 N.J.
Super. at 262; Galarza, supra, 306 N.J. Super. at 389; Young,
supra, 297 N.J. Super. at 616; Singer, 292 N.J. Super. at 407.
Any change in that policy must come from the Supreme Court or the
Legislature unless preempted by federal law.
The judgment is affirmed.
Footnote: 1 1Other counts of the complaint were also dismissed resulting
in a final judgment, but plaintiff only addresses the CEPA claim
on this appeal. The individual defendants are employees of the
Fairfield Branch of Morgan Stanley Dean Witter, but are not named
in the CEPA count.
Footnote: 2 2The specific termination date is not given in the brief or
the complaint.
Footnote: 3 3Plaintiff does not assert that the controversy is not
"eligible for submission under the Rule 10100 Series."
Footnote: 4 4The NASD Code was adopted pursuant to
15 U.S.C.A.
§78s(b)-
(c), and is subject to SEC approval.
Footnote: 5 5There is no dispute regarding what the rule provides as
proposed and adopted. The proposal is contained in defendants'
appendix and the rule is contained in the NASD Code of
Arbitration included in plaintiff's appendix. See
63 Fed. Reg. 35299 (June 29, 1998), which details that the April 1998 proposal
changed the first sentence of the amendment to employ the phrase
"including a sexual harassment claim" in place of "or sexual
harassment." The change, in essence, was designed to make clear
that "sexual harassment" was a contemplated form of employment
discrimination.
Footnote: 6 6Plaintiff states that his "claim is governed by the Rule
change which became effective on January 1, 1999. . . .
Plaintiff's [c]omplaint was filed on April 23, 1999. It is the
date the claim is filed, not the date of termination which is
relevant for determining whether the amended rule applies."
Footnote: 7 7Defendants do not argue that State court jurisdiction is
preempted by the agreement adopted pursuant to the NASD Code or
regulation approved by the SEC. See Maher v. New Jersey Transit
Rail Operations, Inc.,
125 N.J. 455, 469-75 (1991).
Footnote: 8 8Zappasodi cites Kolb v. Burns,
320 N.J. Super. 467, 477
(App. Div. 1999), which stated:
CEPA, like the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42,
is a civil rights statute. Abbamont v.
Piscataway Twp. Board of Educ.,
138 N.J. 405,
431,
650 A.2d 958 (1994). It is "remedial"
legislation and therefore "should be
construed liberally to effectuate its
important social goal." Ibid. Because both
CEPA and the LAD seek to eliminate
"vindictive employment practices" id. at 418,
650 A.2d 958, the Court in Abbamont held that
standards for imposing liability against
private employers, see Lehmann v. Toys 'R'
Us, Inc.,
132 N.J. 587, 626,
626 A.2d 445
(1993), should also be applied under CEPA as
providing the "'most effective intervention
and prevention' of retaliatory actions
against employees." Abbamont, supra, 138
N.J. at 418,
650 A.2d 958 (quoting Lehmann,
supra, 132 N.J. at 626,
626 A.2d 445).
Consistent with Abbamont's approach, the
United States District Court, applying New
Jersey law, has held that the analytical
framework applied in a retaliatory discharge
case under CEPA is similar to that applied in
a violation of anti-discrimination statutes,
such as Title VII of the Federal Civil Rights
Act. Bowles v. City of Camden,
993 F. Supp. 255, 261 (D.N.J. 1998). Thus, because CEPA
is anti-discrimination legislation, the
elements of a cause of action under the Act
are derived from the Civil Rights landscape.
Ibid.
[Kolb, supra, 320 N.J. Super. at 477
(footnote omitted).]
Footnote: 9 9The NASD rules were not involved.
Footnote: 10 10Unlike here, a cause of action was upheld in Quigley
because the U-4 was executed before the statutory amendment. See
330 N.J. Super. at 267-68.