(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 September 9, 1997 -- Decided March 26, 1998
STEIN, J., writing for a majority of the Court.
The primary question presented by this appeal is whether the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (“CEPA”), a “whistleblower statute,” protects an employee from retaliatory action taken against him in New Jersey
by his New Jersey employer because the employee objected to a practice that he reasonably believed was incompatible with a
clear mandate of public policy designed to protect the public health and safety of citizens of another country, and whether the
plaintiff in this case satisfied his burden of proving the existence of a clear mandate of public policy.
Dr. Myron Mehlman, a renowned toxicologist, joined Mobil's Medical Department in 1976 as a Director of
Environmental Health and Toxicology. Over the years, he rose to the level of manager of Mobil's Environmental Health and
Science Laboratory. Mehlman's responsibilities were broad and of international scope. Prior to his discharge in November
1989, Mehlman's job evaluations were uniformly positive. In fact, he continued to be recognized by Mobil Management as
an international expert in toxicology.
The event that allegedly provoked Mehlman's discharge occurred in September 1989, during a trip to Japan. He had
traveled to Japan to represent Mobil at an international symposium and had also been invited to address a group of managers
at Mobil Sekiyu Kabushiki Kaisha (“MSKK”), Mobil's Japanese subsidiary, on current toxicology and environmental health
issues. Mehlman's presentation to the MSKK managers took place at Mobil headquarters in Tokyo on September 27, 1989.
His topic, selected by MSKK's management, concerned the health hazards of human exposure to gasoline. During his
presentation, Mehlman displayed a slide that showed the volume concentration of benzene, a dangerous and toxic chemical
used as an additive in gasoline, as a percentage of regular and premium gasoline content sold in Japan to be 2.5 to 3.5 and 2.5
to 4.6 respectively . MSKK Technical Manager Takashi Tsunemori informed Mehlman that the slide was incorrect because
the benzene content in MSKK's regular gasoline was 5.7 or 5.8 percent.
In response to Tsunemori's revelation, Mehlman stated that the concentrations were too high and would have to be
reduced. In response to Mehlman's inquiry, Tsunemori stated that MSKK was not required to inform Japanese regulatory
officials of their gasoline's benzene content. When Mehlman insisted that the concentrations were dangerously high,
Tsunemori advised him that MSKK's equipment was old and that the concentrations could not be reduced because it would
cost several hundred million dollars to change that single refinery to produce a product with low levels of benzene.
Mehlman replied: “Your reduce it or do not sell it.” He described the reaction of the other MSKK managers as “stunned,
shocked and surprised.”
When Mehlman returned from Japan late Friday, October 6, 1989, he was informed that Antony Silvestri,
Mehlman's immediate supervisor, wanted Mehlman to call him. When Mehlman returned his call the following morning,
Silvestri read a prepared statement to him, informing Mehlman that he was immediately being placed on special assignment
indefinitely because of a pending investigation that had revealed a possible conflict of interest between Mehlman's
responsibilities to Mobil and his activities on behalf of his wife's company, Princeton Scientific Publishing Company.
Silvestri had insisted on receiving the report that triggered the investigation by September 28, 1989, the day after his remarks
to MSKK managers. Silvestri, however, denied having had any information regarding Mehlman's remarks to MSKK
managers at the time he informed Mehlman of the pending investigation.
Thereafter, in late October 1989, based on the final report prepared by Mobil's internal security staff, Mobil decided
to terminate Mehlman's employment. Again, Mobil management denied having any knowledge regarding Mehlman's
remarks to MSKK managers at the time the decision to terminate him was made. Mehlman was formally terminated, “for
cause,” on November 2, 1989.
Mehlman filed suit against Mobil, alleging, among other things, that Mobil fired him in violation of CEPA. During the trial, Mehlman introduced several guidelines, regulations, treatises and other sources to establish a clear mandate of public policy concerning the public health, safety or welfare. After a ten day trial, the jury returned a verdict for Mehlman on his CEPA claim, awarding him $3,440,300 in compensatory damages and $3,500,000 in punitive damages. The trial court
granted Mobil's motion for judgment notwithstanding the verdict, concluding that Mehlman had not proved the existence of
clear mandate of public policy that he reasonably believed Mobil had violated, as required by CEPA. However, on
Mehlman's motion, the trial court amended the complaint to conform to evidence supporting a tort claim, and entered
judgment for Mehlman on that claim in the amount of the punitive damages award.
In a published opinion, the Appellate Division vacated the judgment on the tort claim and reinstated the jury verdict
on the CEPA claim, concluding that the proofs amply demonstrated that Mehlman identified a a clear mandate of public
policy, which he reasonably believed that Mobil had violated when he objected to the distribution in Japan of gasoline with an
excessive benzene content by Mobil's Japanese subsidiary. The Appellate Division also reversed the pre-trial dismissal of
Mehlman's defamation claim and remanded that claim for trial.
The Supreme Court granted Mobil's petition for certification. In resolving the issues presented by that petition, the
Court also addressed the questions that Mobil asserted as the basis for its appeal as of right.
HELD: A cause of action under CEPA exists for a New Jersey employee whose employer retaliated against him for
objecting to the violation of a clear mandate of public policy that threatened to harm citizens of other states or countries;
Mehlman satisfied his burden of proving that the sale in Japan of gasoline with five percent or more benzene was
incompatible with a clear mandate of public policy for purposes of CEPA liability.
1. The purpose of CEPA 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. (pp. 21-22)
2. The statutory cause of action authorized by CEPA elaborates on and derives from the common law cause of action for
wrongful discharge the Court first recognized in Pierce v. Ortho Pharmaceutical Corp. Therefore, the caselaw determining
the sources and characteristics of clear mandates of public policy are useful in defining the parameters of a CEPA claim. (pp.
22-29)
3. The few cases construing the “clear mandate of public policy” language in CEPA have analyzed that term in a manner
that is generally consistent with its application for purposes of the Pierce doctrine. (pp. 29-33)
4. Although outright violations of criminal and civil statutes invariably will constitute practices incompatible with clear
mandates of public policy, the outer limits of that phrase defies precise description and the judiciary, therefore, must define
the cause of action on a case-by-case basis. (p. 33)
5. For purposes of both Pierce and CEPA claims, the determination whether a claimant adequately has established the
existence of a clear mandate of public policy is an issue of law to be determined by the court and not the jury. (pp. 33-34)
6. A limiting principle in determining whether specific activity violates a clear mandate of public policy is that the
offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee.
(p. 34)
7. Because Mehlman was discharged in New Jersey by a New Jersey employer, there is no question of the extension of
CEPA to a foreign employment relationship. (pp. 35-37)
8. A totality of the proofs, including the Japanese Petroleum Association Guideline, constituted a clear mandate of public
policy, as the practical effect of that guideline was essentially equivalent to the effect of governmental regulatory action.
(pp. 37-41)
9. Specific knowledge of the precise source of public policy is not required under CEPA. Rather, an employee must have
an objectively reasonable belief, at the time of objection or refusal to participate in the employer's offensive activity, that
such an activity is illegal, fraudulent, or harmful to the public health, safety, or welfare and that the activity is
incompatible with a constitutional, statutory, or regulatory provision, or other recognized source of public policy. (pp. 41-42)
10. Because the jury found as a fact the existence of a clear mandate of public policy, the trial court's error in failing to
instruct the jury that it was required to do so as a matter of law was harmless. (pp. 43-44)
11. The purposes of CEPA are no less served by recognizing a cause of action for a New Jersey employee whose
employer retaliated against him for objecting to the violation of a clear mandate of public policy that threatened to harm
citizens of other states or countries. (pp. 44-45)
12. Although CEPA's waiver provision is inapplicable to Mehlman's defamation claim, Mehlman must prove different
and distinct damages to avoid a double recovery in the event he pursues the defamation claim. (pp. 46-47)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE O'HERN filed a separate dissenting opinion in which JUSTICE HANDLER joined. Justice O'Hern
believed that this appeal should have resulted in a new trial because the trial court improperly charged the jury concerning
an essential element of a CEPA claim. Further, Justice O'Hern was not satisfied that a clear mandate of public policy
existed in 1989. However, he would grant a new trial to allow for the development of such a mandate.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK and COLEMAN join in JUSTICE STEIN's opinion.
JUSTICE O'HERN filed a separate dissenting opinion in which JUSTICE HANDLER joined. JUSTICE GARIBALDI
did not participate.
SUPREME COURT OF NEW JERSEY
A-
5 September Term 1997
DR. MYRON A. MEHLMAN,
Plaintiff-Respondent,
v.
MOBIL OIL CORPORATION, a New York
Corporation,
Defendant and Third-Party
Plaintiff-Appellant,
and
F.M. CUNNINGHAM, C.R. MACKERER,
IRIS KAPLAN, NORMAN MORGAN and K.A.
TORTORIELLO,
Defendants-Appellants,
v.
PRINCETON SCIENTIFIC PUBLISHING
CO., INC.,
Third-Party Defendant.
Argued September 9, 1997 -- Decided March 26, 1998
On certification to the Superior Court,
Appellate Division.
William J. Brennan, III, argued the cause for
appellants (Smith, Stratton, Wise, Heher &
Brennan, attorneys).
Neil M. Mullin argued the cause for
respondent (Smith Mullin, attorneys).
The opinion of the Court was delivered by
STEIN, J.
The primary question presented by this appeal is whether the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8
(CEPA), protects an employee from retaliatory action taken
against him in New Jersey by his New Jersey employer because the
employee objected to a practice that he reasonably believed was
incompatible with a clear mandate of public policy designed to
protect the public health and safety of citizens of another
country. A threshold issue is whether the evidence adduced at
trial was sufficient to satisfy plaintiff's burden of proving the
existence of a clear mandate of public policy. Collaterally, we
also address whether in CEPA litigation the existence of a clear
mandate of public policy is a fact question for the jury or a
legal issue for the court and, if the latter, whether this trial
court's failure to instruct the jury on whether the evidence at
trial established the existence of a clear mandate of public
policy constitutes error mandating reversal of the jury verdict
and award of damages on the CEPA claim.
Those and other issues raised by Mobil Oil Corporation
(Mobil) in its petition for certification and appeal as of right,
see Rule 2:2-1(a), relate to the claim of respondent, Dr. Myron
A. Mehlman (Mehlman), formerly Mobil's Director of Toxicology and
Manager of its Environmental Health and Science Laboratory, that
Mobil had discharged him in November 1989, in retaliation for his
objection to the sale by Mobil Sekiyu Kabushiki Kaisha (MSKK),
Mobil's Japanese subsidiary, of gasoline containing levels of
benzene in excess of five percent. Mehlman sued Mobil alleging,
among other claims, that Mobil fired him in violation of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 19-1 to -8. After a ten-day trial, a jury returned a verdict for Mehlman
on his CEPA claim and awarded him $3,440,300 in compensatory
damages and $3,500,000 in punitive damages. The trial court
granted Mobil's motion for judgment notwithstanding the verdict
pursuant to Rule 4:40-2(b), concluding that Mehlman had not
proved the existence of a clear mandate of public policy that he
reasonably believed Mobil had violated, as required by CEPA. See
N.J.S.A. 34:19-3(c). Although the trial court vacated the
compensatory damages award, on Mehlman's motion the court amended
the complaint to conform to evidence supporting a prima facie
tort claim, entering judgment for Mehlman on that claim and on
that basis sustaining only Mehlman's punitive damages award.
In a published opinion, the Appellate Division vacated the
judgment on the prima facie tort claim on the ground that it was
precluded by CEPA's waiver-of-claim provision, N.J.S.A. 34:19-8.
291 N.J. Super. 98, 137-38 (1996). The court reinstated the jury
verdict and the compensatory as well as punitive damages awards
on the CEPA claim, concluding that the proofs “
amply demonstrate
that Mehlman identified a clear mandate of public policy which he
reasonably believed that Mobil had violated when he objected in
September 1989 to the distribution in Japan of gasoline with an
excessive benzene content by Mobil subsidiary MSKK
.” Id. at 130,
144. The court also reversed the pre-trial dismissal of
Mehlman's defamation claim and remanded that claim for trial,
concluding that that claim was not barred by CEPA's waiver
provision because it was based on proofs different from those
required to establish the CEPA claim. Id. at 142, 144.
We granted Mobil's petition for certification,
147 N.J. 264
(1996), and in resolving the issues presented by that petition we
also address the questions that Mobil asserts as the basis for
its appeal as of right.
Respondent Mehlman is a renowned toxicologist with impressive academic credentials and substantial working experience in toxicology on behalf of both governmental and commercial employers. After completing his Ph.D. degree at the Massachusetts Institute of Technology and a post-doctoral fellowship at the University of Wisconsin, he held faculty positions in biochemistry at Rutgers University and the University of Nebraska. Before joining Mobil he served as Chief of Biochemical Toxicology for the Bureau of Foods, United States Food and Drug Administration, and held other responsible toxicological positions in the United States Department of Health, Education and Welfare and in the Office of the Director of the National Institute of Health.
Mehlman joined Mobil's Medical Department in 1976 as Director of Environmental Health and Toxicology. In 1978 he became Mobil's Director of Toxicology, and in the early 1980s became manager of its Environmental Health and Science
Laboratory, which had full responsibility for Mobil's toxicology
testing. A 1988 job description indicated that Mehlman's
position required an “established international reputation in
toxicology and environmental science,” and characterized his
primary function as “represent[ing] Mobil on toxicology matters,
and provid[ing] toxicologic and regulatory advice for prudent
business decisions.” Mehlman's major responsibilities included
the representation of Mobil's interests before regulatory
agencies, trade and scientific associations, and academic
institutions; approval of protocols for and monitoring quality of
toxicity testing; and informing Mobil of pending developments in
toxicology regulations that could affect Mobil's worldwide
business. The record clearly demonstrated that Mehlman's
responsibilities as Mobil's Director of Toxicology were broad and
of international scope.
Mehlman's expertise in toxicology and biomedical science is
also reflected by his authorship of approximately 200 articles
and books on those subjects. His publications include several
articles on the subject of benzene toxicity, and he chaired
several symposia focusing on the harmful effects of gasoline
vapors. He also served as President of the American College of
Toxicology.
Prior to his discharge in November 1989, Mehlman's job
evaluations were uniformly positive. He received annual merit
raises and stock option awards. In May 1989, Mobil's Vice
President for Research nominated Mehlman for membership in the
National Academy of Sciences, describing him as “an international
expert in toxicology [who] is often consulted on issues involving
the toxicity of chemicals in relation to environmental health.”
The event that allegedly provoked Mehlman's discharge
occurred in September 1989, during a trip to Japan. Mehlman
traveled to Japan to represent Mobil at an international
symposium on “Industrialization and Emerging Environmental Health
Issues: Risk Assessment and Risk Management.” Because he was
attending the symposium, Mehlman was also invited to address a
group of managers at MSKK, Mobil's Japanese subsidiary, on
current toxicology and environmental health issues.
Mehlman's presentation to the MSKK managers took place at
Mobil headquarters in Tokyo on September 27, 1989. His topic,
selected by MSKK's management, concerned the health hazards of
human exposure to gasoline. Mehlman's presentation included the
use of slides. During his presentation he displayed a slide that
showed the volume concentration of benzene, a dangerous and toxic
chemical used as an additive in gasoline, as a percentage of
regular and premium gasoline content in the United States, Japan,
and Europe. MSKK Technical Manager Takashi Tsunemori interrupted
Mehlman and asked to see that slide again. When the slide was
displayed, showing a range of benzene concentration of 2.5 to 3.5
percent in gasoline sold in Japan for regular gasoline and 2.5 to
4.6 percent for premium gasoline, Tsunemori allegedly informed
Mehlman that the slide was incorrect because the benzene content
in MSKK's regular gasoline was 5.7 or 5.8 percent.
Mehlman responded that “we, in [the] United States and at
Mobil[,] consider benzene as a very poisonous chemical -
dangerous and toxic. And [these] concentrations are too high.
[T]hey have to be reduced.” In response to Mehlman's inquiry,
Tsunemori stated that MSKK was not required to inform Japanese
regulatory officials of their gasoline's benzene content. When
Mehlman insisted that the benzene level “is much too dangerous
and you must reduce it,” Tsunemori's response, according to
Mehlman, was that “[w]e have old equipment and we cannot do that
because it will cost us several hundred million dollars to change
that single refinery to produce a product with low levels of
benzene.” Mehlman replied: “You reduce it or do not sell it,”
and he described the reaction of the other MSKK managers as
“stunned, shocked and surprised.”
Tsunemori testified at trial as a witness for Mobil and
denied that he had informed Mehlman during his September 1989
presentation to Mobil managers that the benzene content of MSKK's
gasoline was 5.7 or 5.8 percent. He testified that he recalled
no “meaningful” discussion during Mehlman's presentation, took no
notes, and made no report to his superior. Tsunemori also
testified that in the summer of 1989 the benzene content in
regular gasoline from the three Japanese refineries that supplied
MSKK was 2.1 percent, 2.9 percent, and 4.5 percent. On cross-examination Tsunemori acknowledged that the average benzene level
in MSKK gasoline in November and December 1989 was 4.9 percent,
and that in December the benzene level ranged from 4.5 to 5
percent.
Shortly after his presentation at MSKK, Mehlman left Tokyo
and traveled to Kitayushu, Japan, where he attended the First
Pacific Cooperative Symposium from October 1st to October 5th.
Mehlman gave the same slide presentation at that conference as he
had given to the MSKK managers, but because the audience included
regulators and Mobil competitors he merely noted that the actual
benzene levels in Japanese gasoline are somewhat higher than
those shown on the slide. Mehlman testified that he intended to
discuss the problem of high benzene levels in MSKK gasoline with
his superiors upon his return from Japan.
Mehlman returned from Japan late on Friday, October 6, 1989,
and was informed that Anthony Silvestri, a Vice President of
Mobil Research and Development and Mehlman's immediate superior,
wanted Mehlman to call him. Mehlman telephoned Silvestri on the
morning of October 7. Silvestri read a prepared statement to
Mehlman in which he informed him that he was immediately being
placed on special assignment indefinitely because of a pending
investigation that had revealed a possible conflict of interest
between Mehlman's responsibilities to Mobil and his activities on
behalf of his wife's company, Princeton Scientific Publishing
Company (Princeton Scientific). Silvestri told Mehlman that he
was not permitted to appear at his laboratory while on special
assignment and was expressly instructed “not to call anyone at
the lab.” Although Mehlman attempted to respond, Silvestri
stated that no response would be permitted, and testified to his
concern that Mehlman was taping the conversation. Silvestri also
testified that at that time he had no knowledge or information
concerning Mehlman's remarks to the MSKK managers about the
benzene content of MSKK gasoline.
From October 7, 1989, through November 20, 1989, the
effective date of Mehlman's discharge by Mobil, Mehlman was not
permitted to return to his laboratory or to have any contact with
Mobil employees. During that period, Mobil's security personnel
completed an investigation of Mehlman that had been authorized by
Joseph D'Ambrisi, Silvestri's immediate superior and Mobil Vice
President of Research and Engineering. According to Mobil's
witnesses, that investigation had been triggered by a telephone
call on September 20 or 21 from Kymm Rutigliano, owner of a
consulting firm hired by Mobil to improve employee communications
in Mehlman's laboratory, to Silvestri informing him of reports
that Mehlman was misusing Mobil assets for personal gain.
According to Silvestri and Rutigliano, Silvestri immediately
instructed Rutigliano to prepare a report on that subject and
deliver it to him by September 28. Rutigliano delivered the
report at 1:00 p.m. on September 28, but acknowledged that she
“pulled an all nighter” the night before to get it done. On
receiving that report, Silvestri immediately delivered it to
D'Ambrisi, who in turn ordered a more detailed internal
investigation of Mehlman.
On October 12, 1989, while that investigation was in
progress, Mehlman attended a meeting where for the first time he
heard a summary of the allegations against him. The Appellate
Division opinion describes that meeting:
On October 12, Silvestri met with
Mehlman and personnel employee Gary Habla to
review the allegations and to give Mehlman an
opportunity to respond. Silvestri told
Mehlman that he was accused of relying on his
subordinates to examine papers for Princeton
Scientific; employing Mobil's mail system to
send out Princeton Scientific books and
documents; spending Mobil's petty cash on
stamps for Princeton Scientific; utilizing
the services of Mobil's personnel for
Princeton Scientific; using Mobil's materials
and graphics equipment for brochures for
Princeton Scientific; paying honoraria to
laboratory visitors when they provided
services for Princeton Scientific; providing
Mobil grants to people who were doing things
for Mehlman; and, submitting irregular travel
and entertaining expense account forms.
Mehlman denied some of the allegations and
had no comment on others. Mehlman was
neither given a written copy of the
Rutigliano report nor allowed access to the
laboratory to obtain records pertinent to the
investigation. Instead, another meeting was
scheduled for October 24 to afford Mehlman,
with his attorney present, an opportunity to
tell his "side of the story."
However, the proposed meeting on October 24, 1989, never occurred because it was canceled by Mehlman's counsel. Based on the final report prepared by Mobil's internal security staff, D'Ambrisi finally decided in late October 1989 to terminate Mehlman. He testified that he had no knowledge of Mehlman's remarks about benzene to MSKK managers when he decided to discharge Mehlman. At D'Ambrisi's direction, Silvestri informed
Mehlman of his termination on November 2, and confirmed by letter
of November 8, 1989, that Mobil was discharging Mehlman for
cause.
At trial, Mehlman conceded that he had periodically used
Mobil's resources to assist Princeton Scientific, his wife's
publishing company, but asserted that he did so with the consent
of John McCullough, Silvestri's predecessor, and because
Princeton Scientific's publishing activities directly benefitted
and enhanced Mobil's reputation in the relevant scientific
community.
Although most of the trial testimony focused on Mobil's
asserted justification for discharging Mobil for cause, the jury
rejected that testimony and apparently concluded that Mobil's
alleged grounds for terminating Mehlman were pretextual.
Accordingly, we need not describe in any further detail the trial
evidence pertaining to Mobil's asserted reasons for firing
Mehlman. A more complete discussion of that testimony is set
forth in the Appellate Division's thoughtful and comprehensive
opinion. 291 N.J. Super. at 111-17.
The critical issue at trial was whether Mehlman satisfied his burden of proof on the question whether the sale in September 1989 by Mobil in Japan of gasoline with five percent or more benzene was “incompatible with a clear mandate of public policy concerning the public health, safety or welfare.” N.J.S.A.
34:19-3c(3). In granting Mobil's motion for judgment
notwithstanding the verdict, the trial court treated the
existence of a clear mandate of public policy as a question of
law and concluded that Mehlman had failed to prove that the sale
of gasoline in Japan with five percent or more benzene
in
September 1989
was incompatible with a clear mandate of public
policy. At trial, however, the existence of a clear mandate of
public policy was presented to the jury as a fact issue. The
trial court gave the jury a general instruction that attempted to
define a clear mandate of public policy, described the usual
sources of public policy, and briefly summarized the specific
sources of public policy on which Mehlman relied. The jury, by
an 8-0 vote, affirmatively answered the first jury interrogatory
that posed this question: “Did Dr. Mehlman prove by a
preponderance of the credible evidence that he objected to any
activity, policy or practice that he reasonably believed was
incompatible with a clear mandate of public policy concerning the
public health, safety or welfare?”
Although it was undisputed at trial that no Japanese statute
or governmental regulation
in September 1989
expressly prohibited
the sale of gasoline in Japan containing five percent or more
benzene, the record contains substantial evidence that, combined
with representations by counsel, persuasively suggested that
gasoline with more than five percent benzene was hazardous to
human health. For example, Mobil's counsel represented that
gasoline sold currently in the United States must contain less
than one percent benzene, and that gasoline sold in countries
under the jurisdiction of the European Economic Community must
contain less than five percent benzene. Moreover, since 1991 the
Japanese government has prohibited the sale of gasoline
containing more than five percent benzene.
At trial, Mehlman testified to his belief in September 1989
that benzene was carcinogenic, that excessive exposure to benzene
could cause leukemia in humans, and that “in Japan, with these
high levels [of benzene], you would expect to get very high
concentration,” and to “expose thousands and thousands of people,
and I expect many thousands to be injured at this level, unlike
[the United States] where we have some type of [] control.”
Mehlman testified to the reliability of a scientific study
admitted into evidence concerning the carcinogenicity of benzene,
authored by A.J. McMichael, a noted epidemiologist, that stated:
Chronic human exposure to benzene may
result in adverse haematological effects,
characterized by a variety of blood
dyscrasias, including leucopenia,
thrombocytopenia, pancytopenia and anaemia.
Benzene is also considered to be a human
carcinogen and is well established as a cause
of leukaemia. It is recognized as being
carcinogenic by the governments of Finland,
the Federal Republic of Germany, Italy,
Japan, Sweden, Switzerland and the U.S.A.
(footnote and citation omitted.)
Mehlman also testified to Mobil's awareness of the health hazards posed by gasoline with excessive benzene content, referring to a Mobil inter-office memorandum written in April 1977 to the President of Mobil Marketing and Refining. That memorandum described benzene as toxic and a possible carcinogen,
and projected that the cost of reducing the benzene level in
Mobil gasoline and other products could “run into the hundreds of
millions of dollars.” That memorandum noted that “[c]ontainers
with 5" or more benzene are required to have a 'poison' label.”
Mehlman also testified to his familiarity with a 1981 Mobil
management guide on product safety applicable to Mobil's United
States and international affiliates that stated:
[A]ll Mobil departments, divisions, and
subsidiaries are responsible for the
development, manufacture, and marketing of
products in a manner consistent with
applicable laws and the Corporation's high
standards of safety, health, and
environmental protection. In the absence of
adequate local government requirements, Mobil
affiliates will maintain standards of safety
and health protection that consider
scientific knowledge and established
practices in developed countries.
Mehlman asserted that that memorandum required MSKK in September
1989 to follow Mobil's United States policy of limiting benzene
levels of gasoline to less than five percent.
Mehlman also produced evidence of United States and Japanese
regulations that, although not expressly prohibiting the sale of
gasoline with five percent or more benzene, were germane to the
question whether such gasoline was hazardous to human health. A
regulation of the Consumer Product Safety Commission (CPSC)
effective March 4, 1988, 16 C.F.R. § 1500, provided in part as
follows:
“Because inhalation of the vapors of products
containing 5 percent or more by weight of benzene may cause blood
dyscrasias, such products shall be labeled with the signal word
'danger,' the statement of hazard 'Vapor harmful,' the word
'poison,' and the skull and crossbones symbol.”
In addition, Mehlman offered evidence of a 1987 regulation
adopted by the Occupational Safety and Health Administration
(OSHA), 29 C.F.R. § 1910.1028, that lowered the permissible
benzene exposure limit for workers from ten parts to one part per
million averaged over an eight-hour workday. The regulation
exempted the sale of gasoline subsequent to its discharge from
bulk wholesale storage facilities, and also exempted loading and
unloading operations at bulk wholesale storage facilities that
use vapor control systems. Mehlman previously had testified that
vapor control systems were not used in Japan in 1989. However,
no evidence implied that either the CPSC or the OSHA regulation
applied outside of the United States.
Mehlman testified that when he objected to the benzene
content in MSKK's gasoline, he reasonably believed that the
Japanese government would have adopted laws and regulations
controlling the benzene content of commercial products. Citing
examples such as the use of seatbelts and the removal of lead
from gasoline, he stated that Japanese regulators usually were
responsive to the acceptance of United States product safety
standards. Mehlman also relied as a source of public policy on
the United States-Japanese Friendship Treaty, which by its terms
permitted
[n]ationals of either Party . . . to enter on
the territories of the other Party . . . for
the purpose of developing and directing the
operations of an enterprise in which they
have invested . . . a substantial amount of
capital . . . subject to the right of either
Party to apply measures that are necessary to
maintain public order and protect the public
health, morals and safety.
Mehlman asserted that Japanese regulations and guidelines
controlling the use of benzene constituted “measures [] necessary
to protect the public health within the meaning of the Friendship
Treaty.”
In that connection, Mehlman offered evidence of a 1974
Japanese environmental regulation requiring that public drinking
water have a benzene content of no more than .01 milligrams per
liter of water. Although a trial court evidentiary ruling
limited Mehlman's explanation of the relevance of that
regulation, the fair import of his testimony was that the high
benzene levels in MSKK gasoline would adversely affect the
benzene levels in Japanese public drinking water through
vaporization, condensation and gasoline spills. In opposition to
Mobil's pre-trial summary judgment motion, Mehlman also certified
that “[b]enzene levels of 5" or greater in gasoline would have
caused contamination of public water far in excess of 0.01 mg per
liter.” Mobil did not refute either Mehlman's testimony or his
certification concerning the direct effect of high benzene levels
in Japanese gasoline on the benzene levels in public drinking
water.
In addition, Mehlman relied on evidence presented by John
Drummond, a Mobil witness, that the Japanese Petroleum
Association, of which MSKK was a member, had issued a guideline
banning the sale in Japan of gasoline with more than five percent
benzene. Drummond, a Mobil executive for twenty-three years with
responsibilities in international marketing and manufacturing,
described the Japanese Petroleum Association as an organization
consisting of oil companies operating in Japan that represented
the interests of the oil industry in its relationships with
Japanese governmental authorities. He testified that in late
1987 or early 1988 the Japanese Petroleum Association adopted a
guideline that limited the benzene content of Japanese gasoline
to less than five percent.
Takashi Tsunemori, the manager of MSKK's technical service
department, also testified as a Mobil witness and confirmed that
he was familiar with the Japanese Petroleum Association guideline
limiting the benzene content of gasoline to less than five
percent. On direct examination he was asked if he considered
MSKK “bound by those guidelines” and whether he was “required to
observe them.” Tsunemori responded that his direct superior, Mr.
Ozowa, was the person responsible for complying with the
guidelines and that he, Tsunemori,
as Ozowa's subordinate
, was
also responsible for compliance. On cross-examination, Tsunemori
was questioned about the benzene content of Japanese gasoline
shown on various refinery reports. Specifically, he was asked if
a refinery report showing more than five percent benzene would
constitute a violation of the agreement with the Japanese
Petroleum Association. Tsunemori replied that “[t]he 5 percent
maximum of benzene is based among our industry, so I don't know
[if] the word violate is correct or not.” When the trial court
asked Mobil's trial counsel if he understood Tsunemori's answer,
Mobil's counsel explained: “I think he said, your Honor, that the
way the industry works, no member of the association would
violate a voluntary guideline.”See footnote 1
Mehlman also testified to his belief that New Jersey product
liability law constituted a clear mandate of public policy that
barred the sale in Japan of gasoline with five percent or more
benzene because that body of law imposed a duty on the seller of
a hazardous product to warn consumers about the hazard. He also
testified that principles of New Jersey negligence law could have
exposed him to a claim of malpractice as a toxicologist if he had
failed to warn MSKK managers of the danger of selling gasoline
containing five percent or more benzine.
Although the trial court excluded from evidence the Code of
Ethics of the Society of Toxicology, to which Mehlman belonged,
the court permitted Mehlman's counsel to argue in summation that
that Code of Ethics constituted a mandate of public policy
because it required Society members to “seek to communicate
information concerning health, safety and toxicity in a timely
and responsible manner, with due regard for the significance and
credibility of the available data.”
An economist testified about Mehlman's claim for damages. He calculated that the difference between Mehlman's actual earnings since his discharge and the income he would have earned at Mobil from November 1989 through 1993 was $524,974. He calculated Mehlman's prospective wage losses for the ensuing six years until his projected retirement at age sixty-five at $132,000 per year. The economist testified that the present value of Mehlman's lost pension benefits was $373,326. He also testified that, on the assumption Mehlman would have continued to receive options on 1750 shares of Mobil stock each for the ten years until his retirement, and estimating an annual increase in the value of the stock at a rate of eleven and one-half percent, the present value of Mehlman's lost stock-option benefit was $875,000.
The jury found that Mehlman had proved “that he objected to any activity, policy, or practice that he reasonably believed was incompatible with a clear mandate of public policy concerning the public health, safety or welfare,” and that Mobil took retaliatory action against him because of his objections.
The jury awarded Mehlman $2,565,300 as compensation for his
financial losses and $875,000 in emotional distress damages.
After the parties stipulated that Mobil's net worth was
approximately $11,986,000,000 and that its gross revenue for the
past twelve months was approximately $60,522,000,000, the jury
awarded Mehlman punitive damages in the amount of $3,500,000.
The jury also rejected Mehlman's breach of contract claim,
concluding that Mehlman had failed to prove that Mobil violated
its policy that prohibited termination except for good cause.
This appeal requires our further examination of the scope of New Jersey's Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, described at the time of its enactment as the most far reaching “whistleblower statute” in the nation. John H. Dorsey, Protecting Whistleblowers, N.Y. Times, Nov. 2, 1986, § 11 (N.J.), at 34. In general terms we have stated that the purpose of CEPA 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.” Abbamont v. Piscataway Bd. of Educ., 138 N.J. 405, 431 (1994); accord Barratt v. Cushman & Wakefield, 144 N.J. 120, 127 (1996). The Appellate Division has observed that “CEPA is derived from
the principle that 'an employer's right to discharge an employee
carries a correlative duty to protect his freedom to decline to
perform an act that would constitute a violation of a clear
mandate of public policy.'” Young v. Schering Corp.,
275 N.J.
Super. 221, 234 (1994)(quoting D'Agostino v. Johnson & Johnson,
Inc.,
225 N.J. Super. 250, 265 (App. Div. 1988), aff'd
115 N.J. 491 (1989)),
aff'd
141 N.J. 16 (1995)
. Specifically, we consider
whether the broad protections against employer retaliatory action
that CEPA affords to New Jersey employees are available when the
relevant mandate of public policy is intended to protect the
health, safety or welfare of people who reside outside of New
Jersey. We also consider the sources of clear mandates of public
policy that will trigger a CEPA cause of action, and in that
context we examine the extent to which generally accepted
scientific principles can assist a court in determining whether a
clear mandate of public policy has been established.
We previously have recognized that the statutory cause of
action authorized by CEPA elaborates on and derives from the
common law cause of action for wrongful discharge this Court
first recognized in Pierce v. Ortho Pharmaceutical Corp.,
84 N.J. 58, 72 (1980). Barratt, supra, 144 N.J. at 126-27; Young v.
Schering Corp.,
141 N.J. 16, 26-27 (1995). Accordingly, the
caselaw determining the sources and characteristics of clear
mandates of public policy for the purpose of applying the Pierce
doctrine is also useful in defining the parameters of a CEPA
claim. In Pierce, supra, we rejected the wrongful discharge
claim of a research physician who objected to her employer's
further research concerning an anti-diarrhea drug containing
saccharin. 84 N.J. at 76. That research might have led to the
filing of an investigational-new-drug application with the
Federal Food and Drug Administration. Id. at 74. Pierce
informed her supervisor that her continued participation in the
effort to develop the drug would violate her understanding of the
Hippocratic oath because of her view that the saccharin in the
drug could be harmful during testing on children and elderly
persons, although she acknowledged that the issue was medically
debatable. When her employer transferred her to another project,
Pierce considered the transfer to be a demotion and resigned.
She filed suit alleging that she effectively had been discharged
for refusing to participate in research that was contrary to her
interpretation of the Hippocratic oath. Id. at 62-64. Reversing
the Appellate Division, we reinstated the trial court's grant of
summary judgment to the employer, reasoning that “there is no
public policy against conducting research on drugs that may be
controversial, but potentially beneficial to mankind,
particularly where continuation of the research is subject to
approval by the FDA,” and concluding that “the Hippocratic oath
does not contain a clear mandate of public policy that prevented
Dr. Pierce from continuing her research on [the drug].” Id. at
76. Nevertheless, the Court imposed a new limitation on an
employer's power to fire an at-will employee:
We hold that an employee has a cause of
action for wrongful discharge when the
discharge is contrary to a clear mandate of
public policy. The sources of public policy
include legislation; administrative rules,
regulations or decisions; and judicial
decisions. In certain instances, a
professional code of ethics may contain an
expression of public policy. . . . Absent
legislation, the judiciary must define the
cause of action in case-by-case
determinations. An employer's 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. However, unless an employee
at will identifies a specific expression of
public policy, he may be discharged with or
without cause.
We take note of some of the post-Pierce decisions that
appear to have elaborated on one or more elements of the Pierce
cause of action. For example, in MacDougall v. Weichert,
144 N.J. 380, 391-92 (1996), we observed:
A basic requirement of the wrongful
discharge cause of action is that the mandate
of public policy be clearly identified and
firmly grounded.
A vague, controversial, unsettled, and
otherwise problematic public policy does not
constitute a clear mandate. Its alleged
violation will not sustain a wrongful
discharge cause of action. (Citations
omitted.)
In Zamboni v. Stamler, 847 F.2d 73, 83, cert. denied, 488 U.S. 899, 109 S. Ct. 245, 102 L. Ed.2d 1233 (1988), the Third Circuit Court of Appeals, noting that the Pierce cause of action literally applied only to wrongful discharge claims, predicted that this Court would extend Pierce to apply to any retaliatory employer action affecting compensation or job rank, and also
identified clauses of the United States and New Jersey
Constitutions as sources of public policy underlying the
plaintiff's Pierce claim. See also Radwan v. Beecham Lab.,
850 F.2d 147, 151-52 (3d Cir. 1988)(recognizing Art. 1, § 19 of New
Jersey Constitution as source of clear mandate of public policy);
Hennessey v. Coastal Eagle Point Oil Co.,
129 N.J. 81, 93 (1992)
(acknowledging that language of and jurisprudence interpreting
New Jersey Constitution can constitute clear mandate of public
policy). We also note, without expressing any view on its
soundness, the Appellate Division's conclusion in House v.
Carter-Wallace, Inc.,
232 N.J. Super 42, 51, certif. denied,
117 N.J. 154 (1989), that an employee who was discharged for
objecting to other company executives about the distribution of
possibly contaminated tooth polish could not maintain a Pierce
cause of action because he failed to notify any governmental
agency of the potential hazard to public health.
A number of cases have recognized a Pierce cause of action
based on an employee discharge found to violate a clear mandate
of public policy. See, e.g., Radwan, supra, 850 F.
2d at 151-52
(holding that plaintiff's allegation that his discharge was in
retaliation for refusing to “set up” shop steward by planting
illegal object on him asserts Pierce cause of action, and finding
clear mandate of public policy in provisions of National Labor
Relations Act and New Jersey Constitution protecting right to
organize and bargain collectively); Velantzas v. Colgate-Palmolive Co.,
109 N.J. 189, 192-93 & n.1 (1988) (per curiam)
(reversing summary judgment, holding that allegation of
retaliatory discharge of employee who sought access to personnel
records in order to establish basis for gender discrimination
claim adequately stated cause of action under Pierce, and finding
clear mandate of public policy in federal cases treating pursuit
of employment discrimination claim as protected activity under
federal law); Lally v. Copygraphics,
85 N.J. 668, 670 (1981)
(holding Workers' Compensation Act to constitute clear mandate of
public policy on which to base Pierce claim by employee
discharged in retaliation for filing Workers' Compensation
claim); Potter v. Village Bank,
225 N.J. Super. 547, 558-61 (App.
Div.)(holding that discharge of bank president who reported
suspected laundering of Panamanian drug money through series of
cash deposits slightly below $10,000 supported retaliatory
discharge claim under Pierce, and finding clear mandate of public
policy in federal statute and regulations requiring banks to
report certain cash transactions), certif. denied,
113 N.J. 352
(1988); Cerrachio v. Alden Leeds, Inc.,
223 N.J. Super. 435, 445
(App. Div. 1988)(holding that state statute requiring employers
to provide safe and healthful place of employment constitutes
clear mandate of public policy supporting Pierce wrongful-discharge claim by employee who allegedly was fired for reporting
chlorine gas exposure at work to OSHA); Kalman v. Grand Union
Co.,
183 N.J. Super 153, 157-59 (App. Div. 1982)(reversing
summary judgment, and finding plaintiff's allegation of
retaliatory discharge for refusing to close pharmacy on July 4
and for reporting proposed closing to Board of Pharmacy
sufficient to assert Pierce cause of action, and holding that
state statute, regulations, and American Pharmaceutical
Association Code of Ethics constituted clear mandates of public
policy); cf. O'Sullivan v. Mallon,
160 N.J. Super. 416, 418-19
(Law Div. 1978)(holding, pre-Pierce, that complaint alleging that
plaintiff x-ray technician was discharged for refusing to perform
catheterizations, which she could not legally perform, stated a
cause of action).
A number of other courts have declined to find that an
employee's discharge violated a clear mandate of public policy.
See, e.g., Chelly v. Knoll Pharmaceuticals,
295 N.J. Super. 478,
490-91 (App. Div. 1996)(finding plaintiff's discharge not in
violation of clear mandate of public policy where firing was in
retaliation for plaintiff's objection to employer's failure
immediately to report to Food and Drug Administration non-serious
elevations of liver enzyme in tests on experimental drug and
employer agreed that such report eventually would be filed);
DeVries v. McNeil Consumer Prods. Co.,
250 N.J. Super. 159, 172
(App. Div. 1991)(holding that discharge of pharmaceutical company
employee for having distributed at employer's direction “expired”
Tylenol caplets to physicians' offices for staff use, although
possibly unfair, did not violate clear mandate of public policy
because discharge “implicated only the private interests of the
parties”); Schwartz v. Leasametric, Inc.,
224 N.J. Super. 21, 30
(App. Div. 1988)(holding that discharge of employee to avoid
paying commissions that he had earned did not violate clear
mandate of public policy); Guidice v. Drew Chemical Corp.,
210 N.J. Super. 32, 36 (App. Div.)(holding that discharge of
employees who privately investigated allegedly wrongful conduct
of company president and refused to “conceal and cover up” such
conduct did not violate clear mandate of public policy, but
noting that different result would be reached if investigation
had occurred in cooperation with law enforcement officials),
certif. denied,
104 N.J. 465 (1986); Alexander v. Kay Finlay
Jewelers, Inc.,
208 N.J. Super. 503, 507-08 (App. Div.)(holding
that discharge of employee in retaliation for filing suit to
resolve salary dispute did not violate clear mandate of public
policy), certif. denied,
104 N.J. 466 (1986); Warthen v. Toms
River Community Mem'l Hosp.,
199 N.J. Super. 18, 28 (App.
Div.)(holding that discharge of nurse for refusing to administer
kidney dialysis to terminally ill patient did not violate clear
mandate of public policy because nurse acted on basis of her own
“moral, medical and philosophical objections”), certif. denied,
101 N.J. 255 (1985).
The relatively few cases construing the “clear mandate of
public policy” language in CEPA, N.J.S.A. 34:19-3c(3)m, have
analyzed that term in a manner that is generally consistent with
its application for purposes of the Pierce doctrine. Thus, in
Abbamont, supra, a non-tenured industrial arts teacher alleged
that the local board of education that employed him, through its
supervisory employees, retaliated against him by denying him
tenure and by not rehiring him because he complained about
unsatisfactory health and safety conditions in the school's metal
shop. 138 N.J. at 410. The evidence established that at an
early stage of plaintiff's employment the school district's
Industrial Arts Supervisor distributed to the teaching staff the
“New Jersey Industrial Arts Education Safety Guide” and
supporting documents, and informed the staff that the Guide and
related material constituted the school board's “official safety
guide.” Id. at 424. That Guide and its enclosures required
“dependable ventilation” providing “a minimum amount of outdoor
air supply and exhaust on movement” for various forms of
industrial arts, including metal workshops. Ibid. We determined
that the Guide and its accompanying materials “directly and
specifically addressed matters of health and safety and fully
reflected a mandate of public policy relating to general concerns
of health, safety and environmental protection.” Ibid.
Although no evidence in the record demonstrated plaintiff's
specific familiarity with the regulations requiring adequate
metal shop ventilation, we concluded that the record established
that plaintiff, as required by CEPA, had objected to a practice
that he “reasonably believe[d] . . . is incompatible with a clear
mandate of public policy concerning the public health, safety or
welfare or protection of the environment” (N.J.S.A. 34:19-3(c)(3)):
Plaintiff also demonstrated 'a
reasonable, objective belief that the conduct
of the school officials was a specific
violation' of those regulatory standards and
'incompatible' with their public policy
mandate. Plaintiff's own description of the
lack of ventilation and the poor air quality
in the shop and its corroboration by
Schweitzer's testimony as well as plaintiff's
work-related pulmonary problems underscore
the reasonableness of that belief. The
objectivity, as well as reasonableness, of
that belief was further evidenced by the
opinion of plaintiff's expert on ventilation,
Mark Goldberg, an industrial hygienist, who
testified that operating the machines in
plaintiff's shop without individual
ventilation hoods was unsafe, given the
emissions of fumes and gases created by the
melting of plastics and welding of metals as
well as the dust created by the grinding of
metals.
See also Sandom v. Travelers Mortgage Servs., Inc., 752 F. Supp. 1240, 1243-46 (D.N.J. 1990)(holding that plaintiff's allegation that employer terminated her employment in retaliation for her filing discrimination claim with federal Equal Employment Opportunity Commission adequately set forth cause of action under CEPA); LePore v. National Tool & Mfg. Co., 115 N.J. 226, 227-28 (affirming Appellate Division holding that Pierce doctrine applies to retaliatory discharge claim by employee covered by collective bargaining agreement who is fired for reporting workplace safety violations, and agreeing with Appellate Division's observation that subsequently enacted CEPA statute would also have provided grounds for retaliatory discharge suit if events had occurred after its enactment), cert. denied, 493 U.S. 954, 110 S. Ct. 366, 107 L. Ed.2d 353 (1989); Parker v. M&T Chem., Inc., 236 N.J. Super. 451, 460-63 (App. Div. 1989) (holding plaintiff's complaint alleging CEPA violation sufficient
to withstand motion to dismiss for failure to state claim, where in-house counsel asserted that employer discharged him for objecting to employer's use of competitor's confidential trade secrets obtained improperly from pending federal court proceeding by competitor's employee); cf. Littman v. Firestone Tire & Rubber Co., 715 F. Supp. 90, 93-94 (S.D.N.Y. 1989) (dismissing on summary judgment plaintiff's allegations of CEPA violation and holding that conduct to which plaintiff objected, consisting of company employee's overpayment for parcel of property plaintiff had negotiated to acquire for employer at lower price, did not violate clear mandate of public policy because thrust of CEPA is to protect those who expose activity harmful to public and activity objected to by plaintiff concerned alleged fraud to harm only employer with limited indirect effect on public represented by company's shareholders); Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620-29 (App. Div.)(reversing judgment after jury trial on CEPA claim in favor of plaintiff and holding that although plaintiff was only physician available to treat approximately 300 patients at long-term care facility for disabled and elderly veterans, no clear mandate of public policy justified plaintiff's refusal to treat facility patients needing immediate medical care and evidence at trial demonstrated that plaintiff's discharge was prompted by refusal to treat patients and not by objection to inadequate staffing; noting that existence of clear mandate of public policy is question of law to be determined by court), certif. denied, 138 N.J. 267 (1994);
Haworth v. Deborah Heart & Lung Ctr.,
271 N.J. Super 502, 505-506 (App. Div. 1994)(affirming dismissal of CEPA claim on summary
judgment, holding that hospital's dismissal of blood-bank
supervisor who destroyed blood samples allegedly in protest
against hospital's inadequate blood identification practices not
actionable under CEPA, and concluding that plaintiff's discharge
was provoked by his destructive act and not by objection to
practice violating clear mandate of public policy); Catalane v.
Gilian Instrument Corp., 271 N.J. Super., 476, 493-94 (App.
Div.)(holding that vague allegation that plaintiff's discharge
was in retaliation for his objection to termination of another
employee and his statements about taking up with federal
authorities employer's violation of “certain labor laws”
insufficient to state claim under CEPA that discharge was in
retaliation for objecting to practice constituting violation of
clear mandate of public policy), certif. denied,
136 N.J. 298
(1994).
We recognized as far back as Pierce, supra, that because the
sources and parameters of public policy are not susceptible to
hard and fast rules, “the judiciary must define the cause of
action in case-by-case determinations.” 84 N.J. at 72. That
recognition applies not only to the common-law retaliatory
discharge claim but to the more expansive CEPA claim as well.
Although outright violations of criminal and civil statutes
invariably will constitute practices incompatible with clear
mandates of public policy, that the outer limits of that phrase
defies precise description has long been understood:
Public policy has been defined as that
principal of law which holds that no person
can lawfully do that which has a tendency to
be injurious to the public or against the
public good. The term admits of no exact
definition. . . . Public policy is not
concerned with minutiae, but with principles.
[Schaffer v. Federal Trust Co.,
132 N.J. Eq. 235, 240-41 (Ch. 1942) (citations omitted).]
Accordingly, for purposes of both Pierce and CEPA claims,
the determination whether the plaintiff adequately has
established the existence of a clear mandate of public policy is
an issue of law. Its resolution often will implicate a value
judgment that must be made by the court, and not by the jury.
See Fineman, supra, 272 N.J. Super. at 619-20; Warthen, supra,
199 N.J. Super. at 24-25. Although that precise question was
contested in the Law Division, and that court initially allowed
the jury to decide if plaintiff had proved the existence of a
clear mandate of public policy, the parties now agree that
determination of the existence of a clear mandate of public
policy must be made by the court.
The specific applications of the CEPA cause of action
continue to evolve. But the core value that infuses CEPA is the
legislative determination to protect from retaliatory discharge
those employees who, “believing that the public interest
overrides the interest of the organization [they] serve[],
publicly 'blow[] the whistle' [because] the organization is
involved in corrupt, illegal, fraudulent or harmful activity.”
Ralph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility (1972). We look generally to the federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics to inform our determination whether specific corrupt, illegal, fraudulent or harmful activity violates a clear mandate of public policy, but those sources are not necessarily exclusive. A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely pri