Gibbons Law Alert

Gibbons Law Alert

Tagged: Retaliation

Third Circuit Decides First Cat’s Paw Case Post-Staub

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Posted in Discrimination

On September 13, 2011

On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.

NJ Supreme Court Rules That Lost Wages are Recoverable Under CEPA Even in Absence of Actual or Constructive Discharge

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Posted in Whistleblower

On June 15, 2011

In a case of particular interest to New Jersey employers, the New Jersey Supreme Court ruled on June 9, 2011, in Donelson v. DuPont Chambers Works (A-112-09) that an employee who files suit under the Conscientious Employee Protection Act (“CEPA”) may recover back and front pay, even if the employee was not fired or constructively discharged, if the employee can show that he became mentally disabled as a result of the employer’s retaliation. The Court rejected the conclusion of the Appellate Division that the same standards govern remedies under CEPA and the New Jersey Law Against Discrimination (“LAD”), and that a constructive discharge must be proven to obtain back and front pay damages.

The Importance of a Workplace Romance Policy

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Posted in Policies and Handbooks

On May 2, 2011

The adoption and enforcement of a policy regarding consensual workplace relationships is essential for all employers. With the American workforce spending at least one-third of their lives at work, it is inevitable that some employees will engage in romantic and sexual relationships with one another. A recent case in the Eastern District of Pennsylvania, Lucchesi v. Day & Zimmerman Group, reinforces that such relationships may have business and legal costs. While employers cannot prevent these relationships from forming or ending, they can take steps to manage their effect on the workplace and to reduce the potential liability stemming from them. A well-drafted policy is a critical first step.

New Jersey Appellate Division Holds That Absence of Emotional Distress Damages Award Does Not Preclude Consideration of Punitive Damages

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Posted in Discrimination

On February 24, 2011

The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.

Supreme Court Broadens Retaliation Lawsuits Under Title VII

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Posted in Discrimination

On January 27, 2011

The U.S. Supreme Court has just decided that an employer cannot “get back” at an employee who has complained about discrimination by going after other employees related to, or in a close relationship with, the complaining employee. By ruling in favor of a man who was fired after his fiancée complained about alleged sex discrimination at the same company, the Court’s decision in Thompson v. North American Stainless, LP has expanded Title VII anti-retaliation jurisprudence to encompass employees who themselves do not engage in “protected activity” as defined by the statute. Finding that the fiancée fell within the “zone of interests” of protection afforded by Title VII, he thus qualified as a “person aggrieved with standing to sue.” The decision is significant for employers because it establishes important precedent authorizing retaliation claims by employees other than the employee who made the original complaint of discrimination. Employers should make sure that their written anti-retaliation policies make clear to managers and supervisors that, after a claim of discrimination has been made, it is against company policy to retaliate not only against the employee making the claim but against any employee related to, or in a close relationship with, the complaining party.

New Jersey Supreme Court Expands Usage of Discovery Rule

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Posted in Discrimination

On December 28, 2010

Though the decision has received a great deal of attention because of the controversy, as played out in the separate opinions of Chief Justice Rabner and Associate Justices Rivera-Soto and Hoens, over whether the temporary appointment to the New Jersey Supreme Court of Judge Stern of the Appellate Division is constitutional, the recently decided case of Henry v. New Jersey Department of Human Services, is of special interest to employers, as it appears to expand the circumstances under which a plaintiff can invoke the equitable device known as the “discovery rule” to toll the 2-year statute of limitations applicable to claims under the Law Against Discrimination (LAD) In Henry, the Court, by a vote of 5-1 with one abstention, affirmed the Appellate Division’s holding dismissing plaintiff’s retaliation claim but reversed the Appellate Division’s dismissal of plaintiff’s discrimination claim. The Court remanded the discrimination claim for the trial court to conduct a hearing to ascertain whether plaintiff could not have reasonably discovered she had claim within 2 years of the accrual of her cause of action.

New Jersey Supreme Court Holds That Employees Disciplined for Stealing Confidential Company Documents in Support of Discrimination Claims Can Sue for Unlawful Retaliation

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Posted in Whistleblower

On December 14, 2010

The New Jersey Supreme Court has just announced a new test under which an employer may be held liable for unlawful retaliation when taking action against an employee who misappropriates and uses confidential company documents against the employer in support of a discrimination claim. Those who believe that simplicity is a virtue will not have their minds changed by the New Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corporation, in which the Court, by a 5-2 majority, established a complex and confusing seven-part “balancing test” for determining whether an employee’s wrongful taking of company documents nevertheless constitutes “protected activity” under the New Jersey Law Against Discrimination (the “LAD”). Applying this test, the Court held that the plaintiff in Quinlan could have been terminated for the wrongful taking of documents, but should not have been terminated for her attorney’s use of one of the documents at a deposition.

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