Hot Topics in Employment Law 2005-2006

Presented by Linda Wong and Amelia Taylor

Annual Conference: Everything you wanted to know about Plaintiff’s Employment Law but were afraid to ask.

APRIL 2006

I.  Law Against Discrimination



Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005).  The Court held that in order to make out a prima facie case on a termination claim a Plaintiff need only show by a preponderance of the evidence that: (1) he or she belongs to a protected class, (2) he or she was performing in the position from which he was terminated, (3) nevertheless he or she was fired, and (4) the employer sought someone to perform the same work after he or she left.  Previously, in order to make out a prima facie case in a discharge case, plaintiff had to meet the test set forth in Clowes v. Terminix, and show that: 1) he or she was in a protected group; 2) he or she was performing his job at a level that met his employer’s legitimate expectations; 3) he or she nevertheless was fired; and 4) the employer sought someone to perform the same work after he left.  The Court stated that this standard was not meant to impose a greater burden on the plaintiff; rather, it was an analogue to McDonnell Douglas.  The Court further stated that it previously held that the “employer’s legitimate expectations” is an objective and not subjective standard and that the language of Clowes, regarding the second prong is “at best imprecise and at worst, misleading.”  In Zive, the New Jersey Supreme Court stated that as long as the employee shows that he has been performing in the position from which he has been terminated, the second prong of a prima facie case under McDonnell Douglas is fulfilled.  Also, the quality of the employee’s performance does not come into play on the plaintiff’s prima facie case.


Joseph Potente v. County of Hudson, 378 N.J. Super. 40 (2005), cert. granted, 185 N.J. 297 (2005). Prejudgment interest may be awarded in a New Jersey Law Against Discrimination suit against a public entity.  


Myers v. AT&T, 380 N.J. Super. 443 (2005).  Plaintiff, who was a B-band manager, was terminated during a reduction in force, based on a performance appraisal.  The reviewer conceded that she believed the employee was not working as hard as another employee because she had cancer, even though it was in remission.  Plaintiff proceeded under a mixed motive theory and summary judgment was granted in favor of the defendant employer.  The motion judge found that Plaintiff had failed to present direct evidence of discrimination. On Appeal, the Court stated that the mixed motive analysis found in Desert Palace v. Costa, 539 U.S. 90 (2003) should not be limited to Title VII cases. (In Desert Palace, the United States Supreme Court, held that proof of mixed motive in a Title VII case need not be based on direct evidence of discrimination. Circumstantial evidence is equally probative of discriminatory intent.). The Court went on to state that even if the Desert Palace decision was limited to Title VII cases and direct evidence of discriminatory animus was required, there is sufficient direct evidence of defendant’s discriminatory intent to preclude summary judgment.


Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005).  An employer’s even-handed adherence to a gender-neutral medical leave policy that provided more leave than the Federal Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA), did not constitute gender discrimination in violation of the New Jersey Law Against Discrimination, thus, the employer’s termination of a woman for exceeding the maximum medical leave time due to pregnancy was not discriminatory.

Minasa Construction Co., Inc. v. PSE&G Co., No. A-4481-03T1 (App. Div. June 23, 2005) (unpublished). A corporation may assert a claim for gender discrimination under N.J.S.A 10:5-12.l (Subsection (l)), which provides that it is unlawful for “any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide, goods, services or information to, or otherwise do business with any person”… on the basis of certain prohibited categories under the LAD.


L.W. v. Toms River Regional School District, 381 N.J. Super. 465 (App. Div. 2005).  A student can sue a local board of education under the New Jersey Law Against Discrimination for student-to-student harassment based upon a protected characteristic.



D’Annunzio v. Prudential Insurance Company of America, 2006 N.J. Super. Lexis 45 (App. Div. 2006).  In D’Annunzio, the plaintiff was a chiropractor hired by an insurance company to review medical records.  The plaintiff filed a lawsuit against Prudential alleging that Prudential terminated him in violation of CEPA in retaliation for his complaints that Prudential took part in unethical and illegal practices. Prudential moved for summary judgment claiming that the plaintiff was an independent contractor and not an employee, and thus was not eligible to commence a CEPA action.  On appeal, the Appellate Division reversed the grant of summary judgment.

The Court stated that CEPA’s definition of “employee” may include workers who may be classified at common law as independent contractors.  The Court also stated that the definition of “employee” found in N.J.S.A. 34:19-2(b) should be construed broadly and that the focus should primarily be on the “control and direction” test set forth in N.J.S.A. 34:19-2(b).

The Court rejected the use of the Pukowsky test for determining whether a worker is an “employee” for CEPA purposes.  The Court said that only the first (the employer’s right to control the means and manner of the worker’s performance), second (whether the worker was supervised), fourth (the furnishing of equipment and a workplace) and seventh (manner of termination) factors set forth in Pukowsky, bear on whether a worker fits the CEPA definition of an employee.


Nardello v. Township of Voorhees, 377 N.J. Super. 428 (App. Div. 2005).  Many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually may combine to make up a pattern of retaliatory conduct that constitutes an adverse employment action.  In Nardello, the Plaintiff, who was employed as a police officer by the Voorhees Township Police Department, was not discharged, suspended or demoted.  He was denied permission to obtain firearms instructor training relative to his membership on the SWAT team; coerced to resign as leader and a member of the SWAT team; denied the ability to work on crime prevention programs; and removed from the detective bureau, with his authority to supervise taken away.  He was also given demeaning jobs for his rank, such as: removing and installing an alarm in the stairwell; performing maintenance of toilets; performing background investigations; and overseeing a building project.


Beasley v. Passaic County, 377 N.J. Super. 585 (App. Div. 2005).  The plaintiff, a supervisory officer at a juvenile detention center, testified before the Board of Freeholders regarding conditions at the juvenile detention facility.  A jury found the County liable for violating the Conscientious Employee Protection Act (CEPA) when it retaliated against the plaintiff by subjecting him to disciplinary action, numerous investigations, withholding pay raises and opposing his workers’ compensation claim.  The County argued that: 1) plaintiff failed to establish that plaintiff performed a “whistle-blowing” activity; and 2) plaintiff failed to establish that the actions taken against him by the County qualified as retaliation under CEPA.  On appeal the Court held that: 1) the employee did not have to articulate the exact violation of law, regulation, or rule that he believed was occurring in order to receive CEPA protection; and 2) a pattern of conduct by the county that adversely affected the employee’s terms and conditions of employment could qualify as retaliation under CEPA.  The Court reversed the liability judgment and remanded for a new trial because the court erred in allowing the double hearsay.


Klein v. University of Medicine and Dentistry of New Jersey, 377 N.J. Super. 28 (App. Div. 2005). In order to satisfy the first prong of the burden of proof under the Conscientious Employee Protection Act (CEPA), a licensed or certified health care professional has to demonstrate a reasonable belief that the employer’s activity, policy, or practice constitutes improper quality of patient care. In order to demonstrate a reasonable belief that the employer’s activity, policy, or practice constitutes improper quality of patient care, the health care professional must demonstrate a reasonable belief that the activity, policy, or practice violates a specific law, rule, regulation or declaratory ruling adopted pursuant to law, or a professional code of ethics.  It was not enough to merely allege a reasonable belief that anesthesia assignments were a threat to patient safety.


Yurick v. State of New Jersey, 184 N.J. 70 (2005). A County Prosecutor failed to state a claim under the Conscientious Employee Protection Act (CEPA) because the specific facts alleged did not include the type of retaliatory action that was made actionable by CEPA.


III. Pierce Claims


Badrinauth v. Metlife Corporation, U.S. Dist. Lexis 4790 (2006) (unpublished).  The Court held that Plaintiff stated a cause of action for wrongful discharge contrary to a clear mandate of public policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, (1980), where he alleged that he was discharged because he threatened to expose violations of labor laws regarding overtime payments.  Defendants argued that under Pierce, an actual report to an external authority was a prerequisite to maintaining an action for wrongful termination. The Court rejected this argument, and stated that Pierce allows for flexibility. If the plaintiff was fired because he threatened to expose MetLife’s violations of labor laws regarding overtime payments, such a discharge would be contrary to a clear mandate of public policy and an actual report to an external authority was not required.


III. Restrictive Covenants


Comprehensive Psychology System, P.C. v. Prince, 375 N.J. Super. 273 (App. Div. 2005).  A restrictive covenant limiting a psychologist from practicing his profession within 10 miles of a corporation’s facility and from soliciting any of the corporation’s patients could not be enforced because the State Board of Psychological Examiners has adopted a regulation restricting psychologists from entering into restrictive covenants. Also, the restrictive covenant interfered with the critical patient-psychologist relationship and with the right of the patient to continued treatment from that psychologist.


IV. Family and Medical Leave Act and New Jersey Family Leave Act


Tucker v. County of Monmouth, 2005 U.S. App. LEXIS 28156 (3d Cir. 2005) (unpublished).  The Court held the County did not violate the FMLA and New Jersey Family Leave Act by suspending Plaintiffs for exceeding their allotted sick-time despite the fact that their sick time was also used for FMLA leave.


Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005). The Third Circuit Court of Appeals held that a city’s sick leave policy, which required an employee on sick leave to call in when leaving home during regular working hours, did not conflict with the anti-abuse provisions in the FMLA permitting employers to request second opinions and certifications.

Hill v. Underwood Mem’l Hospital, 365 F. Supp. 2d 602 (D.N.J. 2005).  The FMLA calculation method and the term “rolling” did not appear in an official employee manual until December, 2000, the UMH FMLA policy was published in the Personnel Policy Manual, and was made available for employee review through other means.


Solovey v. Wyoming Valley Health Care System, 396 F.Supp. 2d 534  (M.D. Pa. 2005).  Defendant employer violated the FMLA when it applied a two-week notice policy to an employee seeking to use accrued paid vacation time in substitution for FMLA leave.  In Solovey, the employer had a policy, which required two weeks advance notice prior to the use of paid vacation time. The defendant did not allow Plaintiff to use vacation pay for days she was absent from work due to her father’s illness, because the Plaintiff did not comply with the two-week notification policy regarding requests for vacation leave.  The Court stated that, while the two-week notice policy did not prevent an employee from taking FMLA leave, it discouraged her from doing so where the need for leave was unforeseeable.




Doe v. XYC Corporation, 2005 N.J. Super. LEXIS 377 (App. Div. 2005).  An employer who is on notice that one of its employees is using a workplace computer to access pornography, including possible child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties.


Singer v. Beach Trading Co., Inc. 379 N.J. Super. 63 (App. Div. 2005).  An employer may be held liable to a former employee for the tort of negligent misrepresentation where the employer negligently misrepresents the former employee’s position with the company.  In Singer, a former employer erroneously told Plaintiff’s new employer that the plaintiff was a customer service representative and not the Vice President of Daily Operations or a customer service supervisor, as represented by the Plaintiff.  The plaintiff was subsequently terminated by her new employer, and sued her former employer for negligent misrepresentation.  On Appeal, the Appellate Division reversed the grant of summary judgment on the negligent misrepresentation claim and remanded the case for further proceedings.  The Court stated that although the plaintiff was not the recipient of the misinformation, she had a cause of action for negligent misrepresentation.


Tort Claims Act


Ortiz v. Ocean County Prosecutor’s Office, 2005 U.S. Dist. LEXIS 29274 (D.N.J. 2005).  Reaffirming that under Velez, causes of action alleging intentional torts by public employees accruing after July 29, 2004 are required to comply with the notice of claim provisions.  Causes of action alleging intentional torts against public employees that accrued prior to June 29, 2004, however, are not required to adhere to the notice of claim provisions.



Minimum Wage Law


Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302 (App. Div. 2005). General managers and manager of restaurants served in an executive capacity and, therefore, were not entitled to overtime pay under the New Jersey Minimum Wage Law.


Third Circuit

Title VII


Jensen v. Potter, 2006 U.S. App. LEXIS 2316 (3d Cir. 2006).  Plaintiff, who was harassed by her co-workers, after she reported that her supervisor had sexually harassed her, could sue for retaliatory harassment under Title VII.  In order to establish a claim for retaliatory harassment under Title VII, a plaintiff must show that:  (1) she suffered intentional discrimination because of her protected activity;  (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) employer is liable.


First Amendment

Policastro v. Kontogiannis, 2005 U.S. App. Lexis 12103 (3d Cir. 2005) (unpublished). A teacher’s complaint alleging that a memo entitled “Questions for the Tenafly Negotiation Team” signed by 13 teachers including himself was placed in the internal mail boxes of the Tenafly High School teachers and removed by the school’s principal stated a claim for violation of his First Amendment right to free speech.


U.S. Supreme Court Cases:


Americans With Disabilities Act


Smith v. City of Jackson, 125 S. Ct. 1536 (2005).  In Smith, the City adopted a pay plan, which granted raises to all police officers and police dispatchers.  Officers and dispatchers with less than five years of tenure received proportionately greater raises than those with more seniority.  Most of the police officers who were over age 40 had more than five years of service.  The Supreme Court held that the Age Discrimination in Employment Act (ADEA) allows recovery based on a disparate impact theory.  However, the Court also stated that disparate impact claims are narrower under the ADEA than under Title VII.  An employee bringing a disparate impact claim under the ADEA must identify specific employment practices that are responsible for any observed statistical disparities.  The Court also stated that in this case the city’s decision to grant a larger raise to lower echelon employees was a decision based on a “reasonable factor other than age,” because the City was attempting to bring the salaries in line with those of surrounding police forces.



Title VII


Arbaugh v. Y & H Corp., Docket No. 04-944.  The Supreme Court granted certiorari to decide whether, for purposes of Title VII suits, the employment of 15 or more employees is a jurisdictional limitation on the power of the federal courts or simply a factual element that the plaintiff must prove at trial.  On February 22, 2006, the Supreme Court held that Title VII’s 15-employee threshold is not jurisdictional.


Ash v. Tyson Foods, Docket No. 05-379.  On February 21, 2006, the U.S. Supreme Court summarily reversed the 11th Circuit and held that the Court of Appeals erred in articulating the standard for determining whether the asserted non­discriminatory reasons for Tyson’s hiring decisions were pretextual.  The 11th Circuit had stated that, “Pretext can be established through comparing qualifica­tions only when ‘the disparity in qualifications is so ap­parent as virtually to jump off the page and slap you in the face.’”


Title IX


Jackson v. Birmingham Board of Education, Docket No. 02-1672 (March 29, 2005).  A male coach who complained about discrimination against his high school girls’ basketball team could sue for retaliation under Title IX of the Education amendments of 1972, even though his sex did not play a role in his adverse treatment.  In Jackson, a male basketball coach sued under Title IX claiming he was removed from his coaching position because he complained about practices he believed discriminated against the girl’s basketball team in violation of Title IX.




6th Circuit


Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996 (6th Cir. 2005).  Held that damages for emotional distress are not allowed under the FMLA.



Americans with Disabilities Act


Emory v. Astrazeneca Pharmaceuticals LP, 401 F.3d 174 (3d Cir. 2005).  An employee’s cerebral palsy substantially limited him in performing major life activities.  “The fact that the employee had, by force of will, perseverance, and learned accommodations, been able to become a productive member of society by having a family, working, and serving his community, did not negate the significant disability-related obstacles he had overcome.”


Shultz v. Potter, 142 Fed. Appx. 598; 2005 U.S. App. LEXIS 16117(3d Cir. 2005) (unpublished).  Plaintiff, who was employed by the United States Postal Service and suffered from a form of diabetes, sued for disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 791, which “forbids federal employers from discriminating against persons with disabilities in matters of hiring, placement, or advancement.”  The Court held that the plaintiff was not disabled because, “[a] person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity.”  The court further held that even if she was disabled, she could not be considered a “qualified individual with a disability” because she rejected a reasonable accommodation.  In this case, her supervisor offered her several reasonable alternative locations for testing her blood, which she turned down without a reasonable explanation.


D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005). The Eleventh Circuit joined the minority view set forth in Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751 (3d Cir. 2004) in holding that under ADA, employers must provide reasonable accommodations to individuals ‘regarded as’ being disabled.   The Eleventh Circuit also joined the First and Third Circuits in holding that regarded-as disabled individuals are entitled to reasonable accommodations under the ADA.