The Appellate Division of the Superior Court of New Jersey examined the evidence necessary for claims of retaliation, discrimination and harassment under New Jersey’s Law Against Discrimination and New Jersey’s whistleblower law, the Conscientious Employee Protection Act. The unpublished opinion also examined what law an employee may bring suit under for whistleblower claims at the same time she is also bringing claims of discrimination and sexual harassment under New Jersey employment law.
Background
Nadine Heller is an associate professor at Middlesex County College (“MCC”). She received tenure in that position and still holds it. She also held the position of Chair of the Visual and Performing Media Arts Department. As Chair she was part of the Department administration.
In 2013, her supervisor, the Dean of the Department, wanted an employee disciplined because of safety issues; Professor Heller, however, objected that the
Professor Heller also alleged that she reported eight separate claims of the harassment of female students through 2014, but responsive action was not taken. She therefore provided information to the Federal Office of Civil Rights, which conducted a Title IX investigation. In December 2014, Heller was notified that she was not renewed for her position as Chair, although she was retained in her tenured position as an associate professor. Heller alleges that this was in retaliation for her complaints, but MCC argued that it was for poor performance.
Heller’s Lawsuit
Professor Heller sued MCC in the Law Division of the Superior Court of New Jersey in Middlesex County for gender discrimination and sexual harassment under the New Jersey Law Against Discrimination. She also sued for retaliation under the Law Against Discrimination and the New Jersey Conscientious Employer Protection Act (the New Jersey whistleblower law, known as “CEPA”). After discovery, the trial judge dismissed Heller’s claims on summary judgment. She appealed to the Appellate Division.
The Appellate Division’s Opinion: Retaliation
The court first addressed Professor Heller’s whistleblower retaliation claims under CEPA and the Law Against Discrimination. The court arrived at a mixed decision on this claim. First, it ruled that the complaint about the improper discipline was not protected because it stemmed from a union contract. To be protected by CEPA, the court explained, the complaint must be based on a reasonable belief that there was a violation of law, rule, public policy, or fraud. Breaches of union contract provisions, however, are not protected by CEPA or the Law Against Discrimination, and therefore were properly dismissed by the trial court.
On the other hand, however, Professor Heller’s complaints about retaliation because of her complaints about sexual harassment were protected by both statutes. Sexual harassment is clearly illegal and against public policy, and also violates the anti-retaliation provisions of the Law Against Discrimination, so they could have been brought under either New Jersey employment law. However, CEPA contains a provision that if a person sues under CEPA she gives up her right to sue for the same thing under other laws (this is known as CEPA’s election of remedies provision). Therefore, the court allowed her to proceed for retaliation under CEPA only, but not under the Law Against Discrimination.
The Appellate Division’s Opinion: Sexual Harassment and Discrimination
While the Appellate Division found that Heller’s retaliation claims could be pursued only under the New Jersey Conscientious Employee Protection Act, it found that her claims for gender discrimination and sexual harassment were independent of the retaliation claims under CEPA, and therefore she could proceed under the New Jersey Law Against Discrimination.
The Appellate Division explained that if motivated by Heller’s gender, MCC’s actions could certainly constitute gender discrimination and harassment. That MCC disputed that claim and argued that it was motivated by Heller’s performance did not defeat Professor Heller’s claims, but rather created a question of material fact. The standard for granting summary judgment is that there can be no genuine question of material fact. Thus, because there were genuine questions of material fact the trial judge should not have granted summary judgment.
The Takeaways
- Retaliation because of complaints about violations of law and discrimination are both actionable in lawsuits. Where there are common facts, the employee who is suing has to choose whether to pursue the claim under the New Jersey Conscientious Employee Protection Act or the New Jersey Law Against Discrimination (although some decisions allow employees to defer this choice until right before the trial starts).
- An employee who isn’t fired can still have claims for retaliation, discrimination and harassment, as Professor Heller did in this case. It may affect the amount of damages which may be recovered, but retaliation, discrimination and harassment are still illegal.
- An employee must bring evidence of her claims, but this evidence need not be direct, such as an admission that the employer took an action because of an employee’s gender. Rather, the facts, circumstances and timing may be used as indirect, or circumstantial, evidence of retaliation, discrimination and harassment, supported by the employee’s own testimony. If the evidence is sufficient to create a genuine question of material fact, a jury will get to decide that question, not the judge.
- Because MCC is a governmental employer, and thus Professor Heller is a public employee, retaliation against her for standing up for an employee’s union rights might also be cognizable as an unfair labor practice in the New Jersey Public Employment Relations Commission (known as “PERC”). However, under the entire controversy doctrine, filing in PERC might have barred her from pursuing her claims in court.
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