Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 194 N.J. 212 (March 27, 2008).

The New Jersey Supreme Court recently discussed the relevant factors that may be considered by the jury in awarding punitive damages.

In Tarr, the defendant corporation had been found liable for the sexual harassment of an employee. See Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 178 N.J. 29 (2003). The trial court, holding that general deterrence could be considered by the jury, permitted the plaintiff to argue that the jury should award punitive damages in order to “send a message to deter this particular defendant and others,” and the judge instructed the jury that it could enhance a punitive damages award in order to deter others from similar wrongdoing. On appeal to the Appellate Division, a divided panel reversed, holding that “while general deterrence remains inherent in the nature of [punitive] damages, the [Punitive Damages] Act does not permit counsel to urge the jury to increase a punitive damage award in order to enhance the general deterrence of others.”

Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008).

A public employee, who incurs an adverse employment action as a consequence of filing a lawsuit addressing purely private concerns, cannot then sue his employer for retaliation under the First Amendment. A public employee’s speech is protected from retaliation under the First Amendment only if the employee spoke as a citizen on a matter of public concern. A public employee cannot transform a personal grievance into a matter of public concern simply by invoking a supposed popular interest in the way public institutions are run.

Salamon v. Our Lady of Victory Hosp., 2008 U.S. App. LEXIS 2064 (2nd Cir. Jan. 16, 2008).

The right to control how a particular assignment is accomplished is a critical element to establishing whether an individual is an independent contractor, or an employee entitled to bring a claim for workplace discrimination. In Salamon, the Second Circuit addressed this issue in the context of claims for sexual harassment brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York Human Rights Law (“NYHRL”).

Reddington v. Staten Island University Hospital, 511 F.3d 126 (2d. Cir.2007).

The United States Court of Appeals for the Second Circuit has certified two questions, concerning New York’s general and health care whistleblower statutes, to the New York Court of Appeals.

The underlying dispute in Reddington concerned a hospital administrator who was fired for alleged insubordination, and who then sued her employer, alleging numerous state and federal causes of action, including, among others, age discrimination, intentional infliction of emotional distress, breach of contract, violation of the Fair Labor Standards Act, and violation of New York’s general and health care whistleblower statutes. After most of these claims were either withdrawn or dismissed, the plaintiff appealed from the dismissal of her health care whistleblower and contract claims.

Michael v. Robert Wood Johnson University Hospital, 2008 N.J. Super. LEXIS 13 (NJ App. Div. Jan. 15, 2008).

A prevailing defendant may be awarded attorney’s fees in an action brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “LAD”), only if it can show that the losing plaintiff brought the claim in “bad faith.” N.J.S.A. 10:5-27.1. In Michael, the Appellate Division held that “bad faith,” in this somewhat unusual context, does not imply that the suit was initiated for a dishonest purpose, but rather equates to “a reckless disregard or purposeful obliviousness of the known facts.” Moreover, the Appellate Division instructed that, in determining what constitutes a “reasonable” award of attorney’s fees, the trial court should take into account the losing plaintiff’s ability to pay, as well as “the extent to which plaintiff pursued the matter because of her own views or . . . relied, either exclusively or partially, upon the advice of counsel.”