Current Issues In New Jersey Employment Law

Tuesday, March 1, 2005 - 01:00

Discrimination Claims MustBe Supported By Facts RatherThan Mere "Feelings"

A New Jersey state appellate court has affirmed a trial court's dismissal of claims by two employees against their former employer, alleging religious discrimination.

The two plaintiffs worked as brokers in the Morristown office of a nationwide investment firm. After quitting their jobs with the firm, the plaintiffs filed a lawsuit in New Jersey state court under the New Jersey Law Against Discrimination. Specifically, the two former employees claimed that they were the victims of anti-Semitic discrimination and hostile work environment.

The trial court granted summary judgment in favor of the brokerage firm, dismissing all claims. On appeal, the appellate court affirmed that dismissal.

In its opinion, the appellate court noted that the plaintiffs had attempted to support their claims by submitting the expert report of a professor of sociology, pointing out the anti-Semitic nature of the words and actions used by the employer's officers. That expert's opinion, however, relied primarily on mere suspicions, feelings, or office gossip, as distinct from actual facts concerning the words or conduct of the employer.

In particular, the appellate court observed that the only two specifically anti-Semitic statements that were attributed to a supervisor were not known by the employees until after they quit. Any such alleged anti-Semitic remarks that were completely unknown to the employees during the time of their employment cannot be offered as evidence of a hostile work environment.

Because the two plaintiffs had an inadequate factual basis to support their claims, the appellate court affirmed the dismissal of those claims.

Conclusion: In a case such as this, the employer's success in getting the case dismissed on summary judgment rests on the skill of defense counsel in taking the appropriate deposition testimony and other discovery and assembling the necessary sworn statements from appropriate witnesses. Only in that manner can it be demonstrated to the trial court that the former employee's allegations are based on mere speculation rather than on facts. Experienced employment defense counsel often can persuade the trial court on a motion to dismiss the claim, without incurring the significantly greater expense of a trial.

Disability Discrimination Protection Expanded To Include "Internalized" Medical Treatment

The United States Court of Appeals for the Third Circuit recently ruled in favor of an employee alleging disability discrimination. In so holding, the federal appeals court reversed the decision by the U.S. District Court for the District of New Jersey, which had dismissed the case against the employer.

The former employee had worked in various positions at a retail department store. She suffered from kidney disease and "was required to undergo time-consuming and uncomfortable dialysis treatments to cleanse and eliminate waste from her blood." Eventually, her employer fired her because of the excessive time that she needed for her dialysis treatments.

The former employee sued in federal court under the Americans with Disabilities Act, alleging that her employer had wrongfully failed to reasonably accommodate the disability by granting her the necessary disability leave. The federal trial court granted the employer's motion for summary judgment dismissing the case, on the ground that the medical cleansing of the plaintiff's blood through dialysis does not interfere with a "major life activity" and therefore does not constitute a "disability" under the ADA.

On appeal, the Third Circuit reversed. The appellate court explained that "processing and eliminating waste from the blood qualifies as a major life activity because, in their absence, death results. In this respect, waste elimination is comparable to life-sustaining activities such as breathing, eating, or drinking, all of which have also been held to be major life activities within the statute." The appellate court therefore held that the former employee's claim should not have been dismissed, and ordered that the case be sent back to the lower court for trial.

Conclusion: This case illustrates the difficulty in applying the broad terms of an employment statute to the infinitely varied and complex circumstances that arise in the workplace. The employer in this case might well have avoided litigation entirely if it had consulted with experienced employment counsel before concluding that the employee had no protection under the ADA and terminating her employment.

Reservist's Claim UnderUSERRA Fails

Employers in New Jersey, as elsewhere, have recently been confronted with questions concerning the rights of military reservists returning to the workplace after training or serving in Iraq or Afghanistan. The tragic circumstances of a recent case illustrate the limitations on those rights.

The plaintiff had returned home to Vineland, New Jersey on leave from his duties with the United States Army Reserve. Shortly after he returned home, he stopped by his place of employment, a convenience store, to pick up his work schedule for the coming week. His shift manager directed him to work that night's late shift, and threatened to fire him if he refused. After working the night shift, the plaintiff fell asleep at the wheel of his car on his way home, crashed, and died of his injuries.

His mother, as administratrix of his estate, sued in the United States District Court for the District of New Jersey. The complaint alleged that the employer violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") by (1) denying plaintiff his "right" to an eight-hour rest period from his return home and his return to work, and (2) threatening to fire plaintiff if he refused to work.

The employer moved to dismiss the claim, and the District Court granted that motion. On appeal, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of the case.

The appellate court explained that USERRA must be construed liberally, in favor of the service member. Nonetheless, the Court noted that the statute's "plain terms" refer to the eight-hour period not as a rest period, but rather as the deadline by which the employee must report to the employer. "There is no way to construe this statutory language as conferring a substantive right to eight hours of rest for the returning employee." The District Court therefore correctly dismissed the plaintiff's case.

Conclusion: Although USERRA is a valuable protection for a returning reservist, it protects only the reservist's right to resume his or her employment. The statute grants to the returning employee no such additional rights as the "rest period" for which the plaintiff argued in this case.

Place Of Employment Determines Which State's Law AppliesTo Whistleblower Claim

Sandwiched as it is between the metropolitan areas of New York City and Philadelphia, New Jersey is home to hundreds of thousands of employees who work outside the state. That circumstance frequently gives rise to confusion over what state's law applies in a particular employment dispute. Two weeks ago, in an unpublished (and therefore non-precedential) opinion, the federal appellate court that has jurisdiction over New Jersey ruled that the employment laws of Pennsylvania, and not those of New Jersey, control in a lawsuit brought by a New Jersey resident who was fired from her job in Pennsylvania.

The choice-of-law issue in that case was complicated by the fact that the New Jersey resident plaintiff (1) performed at least some of her work in New Jersey, and (2) claimed wrongful discharge based on her whistle-blowing activities in connection with an alleged fraud committed by a subcontractor of the employer in New Jersey. In light of those circumstances, she argued that she was entitled to the protections of New Jersey's whistleblower statute, the Conscientious Employee Protection Act.

The Court concluded otherwise. Regardless where the employee happens to reside, and regardless where the actions took place that caused the employee to "blow the whistle" on alleged wrongdoing, it is the location of plaintiff's former employment that determines which state's law applies to a claim of wrongful discharge. Therefore, the New Jersey resident plaintiff in this case had no right to the protections of the New Jersey whistleblower statute; rather, her claims must rise or fall based on the employment laws of Pennsylvania, her state of employment.

Conclusion: The reasoning underlying this opinion is helpful to employers in that it promotes predictability. A Pennsylvania employer needs to know that it is required to comply with the state employment laws of Pennsylvania, and not those of any other states where its employees might live or conduct certain activities. Unfortunately, unless and until the federal appellate court determines to extend precedential status to this opinion, the opinion will not be available for use by employment defense lawyers.

Sean R. Kelly is a Partner in the Employment and Labor Law Practice Group of Saiber Schlesinger Satz & Goldstein, LLC. He has more than 25 years experience advising and defending employers. A graduate of Yale College and the Georgetown University Law Center, he is a Master of the Sidney Reitman Employment Law Inn of Court and is certified by the New Jersey Supreme Court as a Civil Trial Attorney. For additional information write to: srk@saiber.com.

Please email the author at skelly@saiber.com with questions about this article.