CEPA waiver provision applicable only after a plaintiff has had a meaningful opportunity to gather facts and choose his/her remedy based upon that information.

The plaintiff filed an action for wrongful termination and age discrimination under both the New Jersey CEPA and the NJLAD. Home Depot sought to dismiss the plaintiff’s wrongful discharge claim under the premise that the NJLAD claim was barred by the CEPA waiver provision. The CEPA waiver provision waives all claims for retaliatory conduct that arise out of the same operative facts as gives rise to the CEPA claim. In denying the motion to dismiss, the judge concluded that the waiver provision only attaches to the claim once the plaintiff has been able to engage in meaningful discovery and can make an educated election as to which statutory claim he/she wishes to pursue.

Case Law Alerts, 3rd Quarter, July 2014