Bennett v. State
| Decision Date | 20 July 2021 |
| Docket Number | A-1770-19 |
| Parties | MICAELA P. BENNETT, Plaintiff-Appellant, v. STATE OF NEW JERSEY, Defendant-Respondent, and ELIZABETH CONNOLLY, DAWN HALL APGAR, LYNN KOVICH, CHRISTINA MONGON, LISA CIASTON, and THERESA McQUAIDE, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 26, 2021
On appeal from the Superior Court of New Jersey, Law Division Mercer County, Docket No. L-1774-15.
Claudia A. Reis argued the cause for appellant (Lenzo &Reis, LLC, attorneys; Claudia A. Reis, of counsel and on the briefs).
Therese M. Taraschi argued the cause for respondent (Brown &Connery LLP, attorneys; Christine P. O'Hearn and Therese M. Taraschi, on the brief).
Before Judges Alvarez and Geiger.
After a lengthy trial, a jury returned a no cause of action verdict against plaintiff Micaela P. Bennett, who had sued defendants State of New Jersey, Elizabeth Connolly, Dawn Hall Apgar Lynn Kovich, Christina Mongon, Lisa Ciaston, and Theresa McQuaide under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and the Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -42. Plaintiff was employed by the Division of Mental Health and Addiction Services (DMHAS) as a legal specialist assigned to Greystone Park Psychiatric Hospital. Substantial motion practice preceded the trial on plaintiff's fourth amended complaint alleging that defendants violated CEPA by creating a hostile work environment, and violated the LAD by terminating her. We affirm.
We very briefly describe the facts, as plaintiff's challenges on appeal focus solely on questions of law regarding her claims of error in the jury charge. Plaintiff alleged her relationships with her supervisors deteriorated when in 2015 and 2016, she began to voice concern that Greystone was failing to discharge disabled patients into the community as promptly as the law required. She was also concerned about the directive of the Administrative Office of the Courts (AOC) requiring courtroom guards to be armed, believing they were not adequately trained. Coworkers began to complain about plaintiff, and supervisors began to complain to her regarding her confrontational tone. She routinely involved senior administrators in problems she perceived in the workplace without affording her immediate supervisors a preliminary opportunity to address the issues.
Supervisors met with plaintiff on November 21, 2014, in the hopes of improving her working relationship, or at least toning down her communications, with one of the meeting attendees. In their view, plaintiff adopted a disrespectful and angry tone in her interactions with others, possibly when a promotion, and then a lateral move, failed to materialize. Two supervisors met with plaintiff again on October 28, 2015, to discuss their perception of her insubordinate and offensive emails, and her disruptive and unproductive tone during meetings. The frequency with which coworkers and medical staff complained about plaintiff itself had become an administrative problem.
Management imposed a five-day suspension on plaintiff in September 2016 because she refused to sign and return an ethics and confidentiality form that had been sent to her earlier in the year, in April. Plaintiff believed that, despite her repeated requests for clarification regarding the meaning and practical effect of some of the language, no satisfactory response had been made. She admitted being advised before the suspension that failure to sign and return the form would result in disciplinary action. After her suspension, plaintiff did sign the receipt, but noted on the form that she did so "under duress and threat of removal of employment, despite questions ...."
Plaintiff was well aware of the concerns regarding her interactions with others, which she in turn perceived to be a lack of support on the part of her supervisors and outright retaliation. She acknowledged being told to make her emails less confrontational and disrespectful.
The incident which precipitated plaintiff's termination occurred when she contacted a friend who was a Chief Executive Officer (the CEO) at Greystone to inform her that a news article circulated in-house was reporting her retirement. The CEO had been on medical leave since May 2017, had not been asked to retire, and did not intend to; the information in the article was a mistake. On August 15, 2017, the Commissioner of the Department of Human Services, having been contacted by plaintiff about the possible inequity implicated by the CEO's termination while she was on medical leave, emailed plaintiff's supervisors with an inquiry regarding the CEO's status. The Commissioner was told that it was a mistake, that the CEO was entitled to a medical leave, and that she would not be replaced unless and until she decided to retire on her own initiative. On August 21, 2017, plaintiff was called into a meeting, told she was an at-will employee, and told that her services were no longer needed.
One of plaintiff's supervisors testified at trial that the termination came after, essentially, four years of plaintiff being warned about taking a "scolding" tone towards her supervisors, and being instructed to communicate less confrontationally with them and with coworkers. The email regarding the CEO was viewed as the last straw.
Turning to the jury instructions, the judge followed the model charges. In discussing plaintiff's contention that her termination was illegal LAD retaliation, the court mentioned plaintiff's encouragement of the CEO to talk to an attorney about disability discrimination. The judge then added plaintiff's other contentions regarding adverse employer actions, connecting them to both the LAD retaliation claim and the claim of a hostile work environment in violation of CEPA. This included plaintiff's assertions that defendants were angered by her disclosures and objected to the numerous ways she believed they were tolerating violations of, or outright violating, a "law, rule, regulation or public policy," such as ignoring the rights of developmentally disabled patients to community placements, their right to timely determination of their status and eligibility for benefits, and their rights to be free of certain unsafe hospital conditions. Plaintiff had also claimed she was instructed to tell a judge that all patient units had a treating psychiatrist, as required by regulation, when that was not true. Finally, plaintiff alleged that defendants retaliated because she expressed a plan to institute legal action and then did so.
The court also charged the jury on defendants' factual contentions, including plaintiff's status as an at-will employee, and the two asserted reasons for terminating her. The first was "an ongoing pattern of insubordination and unprofessionalism in interactions and communications with her direct supervisor and [other] supervisors that did not improve despite repeated warnings and a five-day suspension without pay for insubordination ...." The second was plaintiff's inability to interact with her coworkers, resulting in numerous complaints being made about her for unprofessional behavior.
With regard to CEPA, the judge charged Model Jury Charges (Civil), 2.32, "New Jersey Conscientious Employee Protection Act ("CEPA") (N.J.S.A. 34:19-1 et seq.)" at 2 (rev. Apr. 2014). The model charge instructs judges that "[i]f one or more of the prima facie elements is in dispute, charge the relevant portion(s) of the following explanation of the plaintiff's prima facie burden . . . ." Ibid. The "following explanation" contains all the elements of the CEPA cause of action other than damages. Id. at 3-9. The model charge introduces the element of "causal connection," stating that it is for the jury to decide, notwithstanding that it also figured in some manner in the prima facie case: Id. at 6.
In this case, the jury instructions on the factual contentions were followed by the elements of the CEPA retaliation cause of action.[1] The court recited the model charge verbatim, and it inserted appropriate illustrations of the parties' contentions and arguments where called for. See Model Charge 2.32 at 1-9. Where the model charge stated that retaliation "does not need to be a single incident" because "it can include many separate but relatively minor instances of adverse action," id. at 5, the court added the explanation that the latter "is commonly referred to as a hostile work environment."
The LAD model jury charge echoes the CEPA model jury charge by instructing trial judges that "the court should not charge the prima facie elements of the plaintiff's case, unless those elements remain at issue at the time of trial, having not already been decided as a result of motion practice either at the summary judgment stage or at the close of evidence at trial," or by stipulation of the parties. Model Jury Charges (Civil), 2.22, "Unlawful Employment Practices Under the New Jersey Law Against Discrimination (LAD)- Retaliation (N.J.S.A. 10:5-12(d) and -12(r))" (rev. Jan. 2019).
As it did for the CEPA counts, the court recited the model charge verbatim and added appropriate illustrations. See Model Charge 2.22 at 3-9. The actual words "prima facie case" were not read to the jury, nor were the mechanics of the burden-shifting framework used in LAD and CEPA cases.
The court did not mention the term "proximate cause" until it addressed damages, and neither did the verdict sheet. The court read the entirety of the model charge. See Model Jury Charges (Civil), 6.10 ...
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