Appeals court throws out $1.2 million whistleblower verdict and a $523,000 fee award, and applying LAD precedent, rules that the plaintiff was not entitled to damages because he was not terminated or constructively discharged.

A Salem County jury found in favor of the plaintiff, a chemical engineer at duPont Chambers Works factory. The plaintiff complained to his superiors about the hazardous qualities of one of the chemicals made at the plant and claimed that his complaints triggered harassment by his superiors. He retired on a disability pension at the end of 2007 when he was in his early 50s. The alleged reprisals included restrictions on his use of vacation, sick time and personal leave; unjustified criticism of his job performance leading to a verbal warning in his file; and a forced eight-week leave based on a finding by a duPont social worker that he was mentally unstable. The plaintiff filed a CEPA claim but did not allege constructive discharge. duPont moved to dismiss on that basis, but the trial judge denied their motions and refused to instruct the jury on constructive discharge or include it on the verdict sheet. The appellate court held that the judge erred applying precedents construing the Law Against Discrimination to the CEPA claim and in particular Padilla v. Berkeley Educational Services, 383 N.J. Super. 177 (App. Div. 2005), in which the appeals court held that the plaintiff could recover emotional distress damages on her successful pregnancy discrimination claim, but not economic damages, because she failed to prove the discrimination caused her constructive discharge.

Case Law Alert - 2nd Qtr 2010