SUPREME COURT YEAR IN REVIEW
SEPTEMBER 8, 2008
193 N.J.L.J. 656
EMPLOYMENT Law
Religious Discrimination Given Equal Treatment
Discrimination claims are the
same regardless of the alleged
basis
By Rosemary Alito
P
erhaps the most anticipated decision of
the term was Cutler v. Dorn, 2008 WL
2916431 (2008), a religious harassment
case in which the Appellate Division’s
decision that the conduct alleged was
not severe or pervasive had produced a
firestorm of criticism from the plaintiff’s
bar and beyond. As many expected, the
Supreme Court reversed the Appellate
Division, but in doing so it broke no new
ground. Rather, it confirmed the continuing viability of the Lehmann v. Toys ‘R’
Us, Inc.,132 N.J. 587 (1993), standard for
assessing claims of hostile work environment workplace harassment, and held that
those standards are the same regardless of
whether the alleged basis for the harassment is sex, race, religion or some other
protected characteristic. Although no contrary rule was articulated, and Lehmann
has been cited and applied in harassment
cases of all natures, the court appears to
have concluded that religious cases were,
sub-silentio, being treated differently. If
that in fact was occurring, the Cutler decision makes it clear that it must end. But
even more than that, Cutler seems to be
one of the rare cases that the court takes
not so much to answer novel questions or
establish broad rules of law, but to correct
a particular ruling in a particular case that
it thought was wrong.
Jason Cutler had worked for the
Haddonfield Police Department since his
graduation from the police academy in
1995. His faith and background were well
Alito is a partner at
Kirkpatrick & Lockhart
Preston Gates Ellis of
Newark and is the author
of "New Jersey Employment Law" ( 2nd ed.) and
"Employment Law for
New Jersey Businesses,"
both published by New
Jersey Law Books. She
is also the chair of the
New Jersey Law Journal
Editorial Board.
known by those with whom he worked.
During the time before he was promoted
to corporal, his supervisors would make
comments, or “jokes” about Jewish people
in his presence. He said that a former
Chief of Police had commented on his
Jewish ancestry a couple of times a month,
and on one occasion asked where his “big
Jew nose was.” Another superior officer
allegedly made comments such as “Jews
are good with numbers” and “why don’t
you go into your family business.” Cutler
said that he thought about complaining
about these comments but refrained from
doing so because he feared retaliation.
Although he acknowledged that these
comments may have been a misguided
attempt at humor, they were still offensive
to him and made him believe that the culture in the department was ripe with antiSemitism. In another incident, someone
placed an Israeli flag sticker on Cutler’s
locker. He thought nothing of it until a few
weeks later, when a German flag sticker
was placed above it. At that point, Cutler
believed the stickers were a reference to
the Holocaust and that someone was trying to send him a message. Still he made
no complaint, though, because he didn’t
want the person who did it to know that it
got to him.
The incident that did lead Cutler to
make a complaint was a fellow officer’s
reference to “Those dirty Jews.” When
Cutler asked the patrolman to repeat what
he said, the patrolman said “Those sturdy
Jews.” Shortly after, the patrolman apologized and said that he had meant it as
a joke. A few days later, Cutler filed an
internal complaint about that comment
and about other hostile conduct in the
department directed to him because of his
religion. After an investigation, the offending officer was issued a “letter of counseling.” Several months later, in an unrelated
departmental hearing, Cutler heard the
co-employee testify that his comment had
been “let’s get rid of all those dirty Jews.”
Cutler considered that remark threatening,
“like a slap in the face.” Days later, he
filed his court complaint.
At trial, the jury found that Cutler
had been subjected to a hostile work
environment because of his race and that
Reprinted with permission from the SEPTEMBER 8, 2008, edition of the New Jersey Law Journal. © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
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NEW JERSEY LAW JOURNAL, SEPTEMBER 8, 2008
Haddonfield was liable. However, it found
no damages and found that Cutler had not
been retaliated against. Motions for posttrial relief by both plaintiff and defendant
were denied.
On appeal, the Appellate Division
reversed the denial of judgment n.o.v. on
the ground that the discriminatory conduct
was sporadic and not sufficiently severe or
pervasive to create a hostile work environment under the LAD.
The Supreme Court granted certification and reversed the decision. Its analysis
established no new principles, but rather,
confirmed the continuing viability of the
Lehmann analysis and its applicability to
claims of religious harassment as well as
harassment on the basis of sex.
The basics of hostile work environment harassment cases that were reiterated
by the Cutler Court include the following.
(1) Whether harassment exists is based on
a reasonable person standard. But the reasonable person looked to is a reasonable
person of the particular protected class.
Thus, the court found it appropriate to note
that “the unique history and background of
Cutler’s Jewish faith and ancestry provide
that contextual setting for our consideration
of the totality of the evidence marshaled
by Cutler in support of his hostile work
environment claim.” (2) The fact that not
all of the alleged harassment was directed
specifically at plaintiff was not determinative. “Circumstances can give rise to an
actionable hostile work environment claim
even when the plaintiff was not the ‘target’
of the offensive or harassing conduct.” (3)
The fact that derogatory comments that
reinforced negative stereotypes were part
of an atmosphere of teasing and joking did
not insulate them. The court found that the
Appellate Division’s reference to some of
the comments as “teasing” “undervalues
the invidiousness of these stereotypic references and demeaning comments.” (4) Nor
did the plaintiff’s participation in some
joking exchanges mean that everything
that occurred thereafter was “welcome”
and therefore not actionable. And (5) the
totality of the situation must be evaluated
in determining whether there was a hostile
work environment. “Viewing each comment in a vacuum simply does not provide
a properly objective assessment of their
cumulative effect.” Evaluating the facts of
the case under these standards, the court
found that there was sufficient evidence
in the record to support the jury’s conclusion that a hostile work environment had
occurred.
Punitive Damages May Not be Awarded for
General Deterrence
Tarr v. Ciasiulli, 194 N.J. 212 ( 2008),
made another trip to the Supreme Court
this year, on punitive damages issues this
time. While the court on the one hand limited the deterrence arguments that may be
made to a jury, it also complicated the issue
of evaluating the financial worth of defendants, with the likely result of longer and
more involved trials on punitive damages
issues. The primary issue presented in Tarr
was whether general deterrence — including of entities not involved in the subject
lawsuit — is a permissible goal of punitive
damages awards. Under Tarr, it is not.
The trial court in Tarr, a sexual harassment case, held that general deterrence
could be considered by the jury in assessing punitive damages. As a consequence,
plaintiff’s lawyer argued to the jury that
“a message should be sent” not just to the
defendants in that case, but to others as
well. The jury was instructed that it could
increase the amount of its award against
defendant to deter others from engaging in
similar misconduct.
The Appellate Division, in a divided
opinion, reversed. Looking to the language
of the Punitive Damages Act and its legislative history, the majority held that a jury
may only consider deterrence of the specific defendant before it. The Supreme Court
agreed, primarily for the reasons below.
The court also went on to address
another recurrent and vexing issue — if
the jury considers a defendant’s financial
condition in assessing a punitive damages
award, should it be the financial condition
at the time of the alleged wrongdoing, or
at the time of trial? After analyzing the
purpose of the punitive damages statute,
the court determined that evidence of a
defendant’s financial condition is relevant
to the question of its ability to pay. Yet, for
193 N.J.L.J. 656
the Tarr court, that did not lead to a brightline rule that the ability to pay is evaluated
at the time that payment is required. It
held, first, that the Punitive Damages Act
does not preclude consideration of a defendant’s financial condition at the time of the
wrongful conduct; that may be part of the
statutory consideration of the profitability
of the misconduct. “That necessitates consideration of the defendant’s financial condition after, and at the time of, the wrongful
conduct to ensure that any compensatory
damages award for wrongdoing does not
become a cost of doing business for the
defendant. Plainly, the act anticipates a
nuanced factual examination by the jury
of a defendant, including measurement of
the defendant’s ‘financial condition,’ when
assessing punitive damages.”
Thus, the court directed that the jury
may consider the defendant’s entire financial picture — its worth at the time of
wrongdoing, any subsequent events concerning the corporation’s financial condition, including the reasons for those
changes, and its worth at the time of trial.
This ruling is certain to present logistical challenges in the trial courts. These
will include requests for more extensive
discovery, longer trials on the punitives
phase, and serious evidential issues where
it is clear that the termination of a single
employee of a large corporation had no
impact on the corporation’s bottom line.
The plaintiff’s lawyer will seek to make an
extended presentation on the corporation’s
wealth and the expansion of its wealth
subsequent to the termination in question,
invoking the principles of Tarr, but in reality simply emphasizing to the jury how
much money the defendant has.
After-Acquired Evidence of Wrongdoing or
Résumé Fraud May Limit Damages But Not
Eliminate LAD Claims
In Cicchetti v. Morris County Sheriff’s
Office, 2008 WL 2185099 (2008), the court
considered the scope of the after-acquired
evidence doctrine, and its earlier decision
in Cedeno v. Montclair State Univ., 163
N.J. 473 (2000), that an individual who is
statutorily barred from public employment
but is hired by concealing that disqualification, is barred from maintaining a wrongful
193 N.J.L.J. 656
NEW JERSEY LAW JOURNAL, SEPTEMBER 8, 2008
discharge claim. The court in Cicchetti limited Cedeno to its facts and looked instead
to the federal rule for the impact of afteracquired evidence and résumé fraud.
Many years before his employment
with Morris County, at the age of twentyone, the plaintiff had pled guilty to charges
of breaking and entering and stealing.
Thereafter, he obtained an expungement,
which his lawyer explained meant that the
conviction “never happened” and that he
was not required to disclose it if asked. He
said he did not ask his lawyer about the
statutory exceptions that were referred to
in the expungement order. Four years later,
he applied to become a Morris County
Sheriff’s Officer, and in response to an
application question whether he had ever
been arrested, indicted or convicted, stated
“no,” unaware, he said, of his obligation to
disclose the expunged conviction in that
circumstance.
Plaintiff worked as an officer without
incident until it was discovered that he
suffered from Hepatitis C. Thereafter, he
alleged, he was ostracized and harassed
because of his illness, including harassment that put him in physical danger. After
his internal complaints failed to bring satisfaction, and feeling “anxious, nauseated,
frustrated and deeply hurt that [he] was still
being treated as a leper,” plaintiff left work
and never returned. More than a year later,
he resigned.
Plaintiff filed suit against the Sheriff’s
office, co-employees and supervisors,
claiming discrimination and harassment
based on his disability. The defendants
moved for summary judgment on the
grounds that the supervisors were neither
employers nor aiders and abettors, and that
plaintiff’s failure to reveal his prior conviction as statutorily required barred his claim.
The trial court granted the motion, finding
the claims barred under Cedeno and finding that the individual defendants could
not be held liable in any event because
they were not employers and could not aid
and abet their own conduct. The Appellate
Division affirmed as to the co-employees
but reversed as to the office and the supervisors. It found that the inadequacy of
remedial actions by the supervisors created
a fact issue as to their liability; and that
plaintiff’s failure to disclose his conviction
did not bar the suit. The Supreme granted
certification.
On the import of plaintiff’s failure to
reveal his conviction, the court found it
important to balance the protections of the
LAD and the employer’s legitimate right to
terminate employees for résumé fraud or
other misconduct. The court started with
the Cedeno rule that an employee who is
completely disqualified from employment
may not maintain an action for discriminatory termination under the LAD or CEPA.
It also noted that Cedeno had left open the
possibility that “there may be aggravating
circumstances where the need to vindicate
the policies of the LAD or CEPA could
lead to the conclusion that even a person
who was absolutely disqualified from holding public employment should be allowed
to seek compensation for harm suffered
during that employment.”
The plaintiff in this case, however, was
not completely barred from public employment and therefore, the court concluded,
a different analysis was required. But, it
acknowledged, that might not always be
the case. “Although, in theory, an employer
who could demonstrate that it had a wellpublicized, clear, explicit, and consistentlyapplied policy of refusing to hire any
individual for a particular position if that
person had a previously expunged conviction of like magnitude might be able to
argue that it should have the benefit of
the Cedeno rule, nothing in this record
remotely suggests that defendant Sheriff’s
Office could bear that heavy burden.”
Thus finding that the action was not
barred by Cedeno, the court turned to the
question “whether, and to what extent,
after-acquired evidence may bar or limit
damages in a workplace discrimination or
hostile environment lawsuit.” The court
concluded that while it was appropriate to
limit or eliminate economic damages, such
as back pay and front pay, tort damages for
the hostile work environment, including
both emotional distress damages and punitive damages, should remain available. “[I]
f the employer can bear its burden of proving that it would have terminated plaintiff
as soon as it learned of this expunged conviction, then that date may be used to limit
any backpay award and to eliminate any
front pay award.”
3
As to the liability of individual coemployees and supervisors, the court reaffirmed that the plain meaning of “employer” under the LAD does not include supervisors, and that supervisors may be held
liable only for aiding and abetting. It also
reaffirmed that aiding and abetting requires
active and purposeful conduct. As such,
the court concluded that the alleged failure
of the supervisors before it to adequately
respond to plaintiff’s complaints fell short
of the active involvement required for individual liability as aiders and abettors.
Collectively Negotiated Agreements and
Individual Employment Contracts Must Be
Read in Harmony
In Pascack Valley Regional High
School Bd. of Education v. Pascack Valley
Regional Support Staff Ass’n, 192 N.J. 489
(2007) and Northvale Bd. of Education v.
Nothvale Education Ass’n, 192 N.J. 501
(2007), the court considered the interplay
between collectively negotiated agreements (“CNAs”) and individual employment contracts with employees covered by
the CNA.
In the Pascack Valley case, the Board of
Education decided to terminate its employment contract with a school custodian,
Thomas Dombrowski, before his individual
contract of employment expired. This decision followed a complaint from another
custodian that Dombrowski had repeatedly
made inappropriate and racially offensive
remarks to him on the job. An investigation was conducted, and the complaint
was found to be valid. The investigation
also uncovered the fact that Dombrowski
had also made comments to students who
worked with the custodial staff during the
summer. A meeting was convened to discuss the situation and the superintendent
recommended Dombrowski’s termination.
A hearing followed, at which Dombrowski
neither testified nor presented evidence on
his own behalf. But after the Board passed
a resolution to terminate Dombrowski,
the defendant union filed a grievance on
Dombrowski’s behalf. The union claimed
that the termination was governed by the
CNA and not by Dombrowski’s individual
contract, and the Board lacked good cause
for the termination as required by the CNA.
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NEW JERSEY LAW JOURNAL, SEPTEMBER 8, 2008
The grievance was denied and the matter
proceeded to arbitration. The arbitrator
ruled for the union, finding that the Board
had improperly utilized the individual contract termination clause to avoid the CNA’s
disciplinary protections.
The Board’s motion to vacate in the
Chancery Division was granted on the
ground that the arbitrator exceeded his
authority by failing to enforce the terms of
Dombrowski’s individual contract, and that
the Board had the right to terminate under
the contract, without regard to the provisions of the CNA. The Appellate Division
affirmed.
In an opinion by Justice Hoens, a
unanimous Supreme Court reversed. The
court began its analysis by noting the
favored status of arbitration as a method of
resolving labor disputes. It then looked to
the written agreements to determine whether the parties had intended a mid-term
termination for disciplinary reasons to be
subject to arbitration. The CNA specified
that any dismissal of a custodian would be
considered to be a disciplinary action subject to a just cause analysis and it gave custodians the right to grieve “any dismissal.”
As such, where the reason underlying the
termination was disciplinary in nature, it
was subject to grievance and arbitration.
The Northvale case, 192 N.J. 501
(2007), also involved a midterm termination, but the termination arose out of performance issues and the contractual provisions were different. Patricia Lenart, a parttime teacher and secretary, was terminated
during the term of her contract. Although
the underlying reason for her termination
was poor performance, she was terminated under a provision of her individual
employment contract that allowed for midterm termination without cause on 60-days
notice. But like the employee in Pascack
Valley, she was also a union member whose
terms and conditions of employment were
governed by a CNA. After her termination
was recommended by the Superintendent,
the union filed a grievance on her behalf,
which was denied. When the defendant
tried to submit the matter to arbitration, the
Board filed a complaint in the Chancery
Division to enjoin arbitration, which was
granted.
The Appellate Division affirmed, find-
ing that the termination was neither a “discharge” nor a form of “discipline” under the
CNA. As a consequence, neither a showing
of just cause nor submission to arbitration
was required. The Appellate Division also
found that this did not conflict with the
CNA, because the Board had the option of
either terminating without showing cause
with notice, or terminating without notice
but making a showing of just cause. Only
in the latter situation would arbitration
under the CNA be required.
The Supreme Court was evenly divided,
and therefore the Appellate Division decision was affirmed. The concurring opinion
of the three members who supported the
Appellate Division decision began with a
review of the history of school employment and the use of individual employment contracts for nontenured teachers.
It referred to the court’s prior holding in
Camden Bd. of Education v. Alexander,
181 N.J. 187 (2004), that nonrenewal of
an individual contract at the end of its term
is not grievable, even if the nonrenewal is
based on grounds that could be the subject
of discipline. The concurring opinion also
reiterated the rule that questions of substantive arbitrability are for the court and
not the arbitrator. With that framework in
place, it addressed the question, “left open
in Camden, supra, of whether the termination of a contract in the middle of its term
for reasons that might otherwise give rise
to discipline falls within the provisions of
the CNA.”
The concurring opinion found that the
Camden rule should be extended to the situation before it. It found no inconsistency
between the provisions of the CNA and
the provisions of the individual employment contracts. The language of the CNA
concerning the Board’s power to terminate
staff, the Board’s policies regarding the termination of nontenured contract employees
and the narrow definition of grievance
under the CNA led it to the determination
that the Board did not waive its right to terminate midterm nontenured employees on
notice without providing the right to pursue
grievance arbitration.
Justices Long, Albin and Wallace dissented, in an opinion by Justice Long.
Noting the legislatively-imposed presumption in favor of public sector arbitration,
193 N.J.L.J. 656
they concluded that the CNA trumped
the individual employment contract. In
their view, the only relevant question was
whether the language of the CNA would
require arbitration; if it does, any contrary
provision in the individual contract must
yield. If any construction of the CNA supported arbitrability, the dissent continued,
that construction is the one that must be
followed.
“Good Cause Related to the Work”
In Utley v. Bd. of Review, Dep’t of
Labor, 194 N.J. 534 (2008), the court
expanded the circumstances in which an
employee may voluntarily leave employment and still collect unemployment compensation.
The facts in Utley were unusual in that
the employee in question, John Utley, was
legally blind. For many years, he worked
for Myron Manufacturing Company
(“Myron”) as a material handler. Until the
incidents leading up to his resignation, he
worked the late shift, traveling by bus from
his home in Patterson to the Myron facility.
In February 2005, Myron changed Utley’s
shift to 3:30 pm to midnight, a time at
which the buses did not run. Utley told his
supervisors about the problem and tried to
adjust to it by getting rides from others —
first a supervisor and then a co-worker. The
situation got worse when the co-worker
was relieved from mandatory overtime
and Utley was not. Sometimes she waited
hours to drive Utley home. Other times
he left before he was supposed to, so he
could catch a ride home. It all came to
head months later, when the co-worker had
to take two weeks off. Utley’s request to
take off at the same time was denied and
he became so overwhelmed by stress from
dealing with supervisors on this issue that
it threatened his physical and mental wellbeing. Fearful of being fired, he resigned.
He claimed that because he had no choice
but to leave, his departure was for “good
cause attributable to his work” and not for
personal reasons. On that basis, he claimed
eligibility for unemployment benefits.
The Board of Review of the Division
of Unemployment and Disability Insurance
(“Board of Review”) denied benefits on the
ground that Utley had quit his job “volun-
193 N.J.L.J. 656
NEW JERSEY LAW JOURNAL, SEPTEMBER 8, 2008
tarily without good cause attributable to
[his] work.” Because Utley had successfully commuted to work for nine months
after his shift change, it found his situation
comparable to that in Morgan v. Board
of Review 77 N.J.Super. 209 (App. Div.
2000), where benefits were denied. Before
relocation, the employee walked to work in
20 minutes; afterwards she commuted in
excess of one hour, which she accepted for
three years and eight months before resigning. Thus the Board of Review concluded
that the loss of transportation for a twoweek period was not attributable to Utley’s
work but was entirely personal to him. The
Appellate Division affirmed.
A divided Supreme Court reversed the
Appellate Division and found Utley should
not have been disqualified from unemployment. The majority held that that Utley had
resigned for good cause related to the work
and not for personal reasons, because, inter
alia, his employer was responsible for initiating the chain of events that led him to
resign.
The majority included an analysis of
the statute and regulations, prior opinions
and policy concerns. It noted that the UC
Act protects not just those who are laid off
or terminated, but also those who voluntarily resign for good cause attributable to
work. See Zubrycky v. ASA Apple, Inc., 381
N.J.Super. 162, 168 (App. Div. 2005). Here,
Utley did not have a “transportation problem” until his employer changed his shift
to a time when public transportation was
not available. Under the majority’s analysis, this change, to some degree, altered the
conditions of his employment. Utley tried
to the best of his ability to adjust to the
new shift. However, he ultimately could
no longer meet the company’s demands
and chose to resign rather than to be termi-
nated. See N.J.A.C. 12:17-9.5 (providing
that when an employee knows that discharge is “imminent,” meaning “within 60
days,” that employee may voluntarily leave
without becoming ineligible for benefits). The majority compared Utley’s situation with the case law that concerns
employees whose commuting hours are
increased as a result of work relocation. See Rolka v. Board of Review, 332
N.J.Super. 1, 3 (App. Div. 2000); Bateman
v. Board of Review, 163 N.J.Super. 518,
518-20 (App. Div. 1978). The Court
reiterated the holding in Self v. Bd. of
Review, 91 N J. 453 (1982), “that when
‘commuting problems’ arise solely from
the personal circumstances of the worker,
unrelated to an alteration in the terms or
conditions of employment, the worker
who voluntarily quits his job cannot show
‘good cause’ qualifying him for benefits.”
But it went on to find that the Appellate
Division in Rolka v Bd. of Review, 332
N.J. Super. 1 (App. Div. 2000) had gotten
it right in holding that Self did not establish a mandatory disqualification rule,
but rather, required a discrete balancing
and evaluation of all factors when the
employer’s actions substantially increase
the commute required.
The majority found that N.J.A.C.
12:17-9.1 (e), which indicates that separation from employment due to lack
of transportation shall be viewed as a
voluntarily leaving work issue, did not
establish a hard and fast rule because it
must be read in conjunction with N.J.A.C.
12:17-9.1(d), which provides that “[a]n
individual who leaves work for several
reasons, one of which constitutes good
cause attributable to the work, shall not be
disqualified for benefits.” Thus the major-
5
ity concluded that “[a] finding that an
employee voluntarily left his job because
of lack of transportation is not the end,
but only one important part of the inquiry.
As is clear from this case, all transportation problems do not originate with the
employee; an employer may cause or
exacerbate those problems. We do not
retreat from our previous pronouncement
that generally commuting troubles will
not be considered work-related. In Self,
we foresaw that a case might arise ‘in
which a sudden change in employment
circumstances’ might make commuting
so difficult that it could ‘properly be
regarded as a condition attributable to the
work rather than to the employee.’ This is
such a case.” (Citations omitted; emphasis
in the original.)
Justice Wallace wrote a dissent, in
which Justices Hoens and River-Soto
joined. The dissent followed what many
would say was the existing rule: “an
employee’s loss of transportation to
and from work for a two-week period
is not attributable to the employee’s
work, but is entirely personal to him.”
That is in accord, the dissent stated,
with the court’s decision in Self, supra,
90 N.J. at 460, which recognized that
“the Legislature has designed a structure
in which employees who leave work
because of commuting problems are not
entitled to unemployment compensation.”
Not unsympathetic to the plight of Utley
and others whose commuting options
may be limited by disabilities, the dissent suggested that the better course from
the outset may have been for Mr. Utley
to have framed his efforts to continue
employment in the context of asking his
employer for a reasonable accommodation to his disability. ■