Hernandez v. Montville Tp. Bd. of Educ.

• Decision Date: 24 October 2002
• Citation: 808 A.2d 128,354 N.J. Super. 467
• Parties: Victor HERNANDEZ, Plaintiff-Appellant, v. MONTVILLE TOWNSHIP BOARD OF EDUCATION, Defendant-Respondent.
• Court: New Jersey Superior Court

808 A.2d 128

354 N.J. Super. 467

Victor HERNANDEZ, Plaintiff-Appellant, v. MONTVILLE TOWNSHIP BOARD OF EDUCATION, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued October 1, 2002.

Decided October 24, 2002.

David A. Amadio argued the cause for appellant.

Raymond W. Fisher, Forham Park, argued the cause for respondent (Schwartz Simon Edelstein Celso & Kessler, attorneys; Stephen J. Edelstein, of counsel; Mr. Fisher and Christopher R. Welgos, on the brief).

Before Judges WALLACE, JR., CIANCIA and AXELRAD. The opinion of the court was delivered by AXELRAD, J.T.C. (temporarily assigned)

Plaintiff, Victor Hernandez, a night custodian for defendant, Montville Township Board of Education, appeals from the grant of defendant's motion for a judgment notwithstanding the verdict (JNOV) on plaintiff's Conscientious Employee Protection Act (CEPA) claim. The jury had returned a verdict in plaintiff's favor for $44,000 for wage loss and $150,000 for emotional distress.

On appeal, plaintiff contends: (1) the trial court erred in granting defendant's motion; (2) it was error to fail to submit the punitive damages issue to the jury; and (3) if we reverse, the trial court should consider his application for interest, attorney's fees and costs. We agree and reverse the JNOV, reinstate the jury award, and remand for a trial on punitive damages, interest, attorney's fees and costs.

For twenty years prior to his employment with defendant, plaintiff was employed by Consolidated Edison (Con Ed) as a custodian and later as a mechanic. At Con Ed he attended seminars addressing OSHA¹ laws, and was trained to identify and report safety hazards within the company. In April 1996, he was hired by defendant as a part-time maintenance employee while he also maintained his position at Con Ed. In January 1997, following plaintiff's successful completion of a thirty-day trial period, defendant approved plaintiff's appointment as a full-time night custodian for two of defendant's elementary schools, William Mason and Cedar Hill. The employment contract covered the period from December 2, 1996, through June 30, 1997.

Defendant also required plaintiff to attend health and safety meetings. At one meeting, a safety representative indicated that the cleanliness of the bathrooms was regulated by OSHA, which mandated a sanitary environment. Plaintiff was also provided with a staff handbook which emphasized the importance of safety at the schools and directed a custodian to assume responsibility for the general safety of the building.

Plaintiff first noticed a safety issue at the school in December 1996, which he reported to the principal Dr. Stephanie Adams and the facilities manager Leon Vandeneulebroeke.² In February and March 1997, plaintiff also observed and either reported or attempted to discuss with the superintendent Dr. Richard Bozza and business administrator Dominic Butler other safety and sanitary concerns. Specifically, plaintiff was concerned with broken toilets that were clogged and overflowing for prolonged periods of time, causing feces and urine to spill out on the floor, and an exit sign that was unlit for seven days due to a burned out bulb. Thereafter, plaintiff was criticized in a series of memos for the first time for poor work performance, engaging in lengthy personal phone calls while on duty, not arriving on time, theft of services, and not following the chain of command. On March 6, 1997, he was suspended from his position and on March 18, 1997, he was terminated.

On February 6, 1998, plaintiff filed suit against defendant alleging he was terminated in violation of CEPA, N.J.S.A. 34:19-1 to -8. Plaintiff and his wife Deborah, who was also employed by defendant as a custodian, testified at trial as to the nature of plaintiff's complaints and their attempts to bring them to the attention of defendant's representatives. Plaintiff also testified about medical and emotional problems he experienced for about three to four months following his termination, including being upset, crying often, having difficulty sleeping, having diarrhea and losing weight, and about the depression he experienced in March 1999. The court reserved decision on defendant's motion for dismissal under Rule 4:37-2(b).

Defendant presented the testimony of Vandeneulebroeke, Bozza, Adams, Butler, and another custodian Mike Foschini. The court thereafter denied defendant's motion for judgment at the close of all evidence. In addition, the court ruled that only the issues of the exit sign being unlit for seven days and the clogged and overflowing toilets would be submitted to the jury. After being charged under N.J.S.A. 34:19-3a, the jury returned a verdict favorable to plaintiff. The court denied plaintiff's request to send the issue of punitive damages to the jury, concluding the facts did not support the imposition of such damages.

Thereafter, defendant moved for JNOV, for a new trial, or for remittitur. On September 14, 2001, the court granted defendant's motion for a JNOV, stating:

Talk about trivial. This is a case—and I never should have let it go to the jury, I should have read now the McLelland case ... I should have made a determination right at that time, before the trial even started, but I didn't because I didn't know what the facts were. But certainly by the time the jury went out, I should have concluded that the plaintiff simply had not made out a case, under the CEPA law, because he never disclosed or threatened to disclose to his supervisor an activity, policy, practice of an employer that the employee reasonably believed was in violation of law or a rule or regulation promulgated pursuant to the law. There simply was none. There were trivial things that he didn't like. The toilets he said were for days clogged up, and one light-one light, for a—short period of time, an exit light, didn't have the light—the bulb working. And it turns out whose job is it to change the bulb, his. His job. And then he falls back and says well, I couldn't get a bulb.

I have never seen anything like it. And that's supposed to support a CEPA claim? And he, himself, admitted that he never explained to anyone what it was exactly that he was complaining about. He—he says—he simply said he wanted a meeting about some issues, safety issues or whatever they were, without specifying what they were.

But in addition to that, there isn't any other evidence adduced by anyone in the case that these things that he's complaining about ever occurred, except for the most trivial thing about this light bulb that wasn't out.

I didn't believe anything [plaintiff] said, but that isn't the test here. The test is whether a reasonable jury could have concluded, number one, that there was a—a—a violation of some law, regulation or even public policy. If there's a public policy involved here about clogged toilets, it is trivialization beyond belief.

The order which is the subject of this appeal was entered on September 20, 2001.

The key issue on appeal is whether plaintiff performed whistleblowing activity by reporting the unsanitary conditions of the bathroom and the broken light in the fire exit sign and was terminated as a result. Accepting as true the evidence supporting plaintiff's position and according him the benefit of all legitimate inferences which can reasonably and legitimately be deduced therefrom, Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969), we find the verdict is sustainable and it was error for the trial court to grant JNOV. R. 4:40-2.

The CEPA statute, N.J.S.A. 34:19-3a, provides:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer... that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law ...

New Jersey's CEPA statute has been described as the most far reaching "whistleblowing statute" in the nation. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179, 707 A.2d 1000 (1998). CEPA was designed to provide broad protections against employer retaliation for employees acting within the public interest and, as remedial legislation, it should be construed liberally to effectuate its important social goal. Abbamont v. Piscataway Township Bd. Of Educ., 138 N.J. 405, 418, 650 A.2d 958 (1994); Dzwonar v. McDevitt, 348 N.J.Super. 164, 791 A.2d 1020 (App.Div.), certif. granted in part, 172 N.J. 180, 796 A.2d 897 (2002).

In order to maintain a cause of action under this statute, a plaintiff must establish that: (1) he or she reasonably believed that his or her employer's conduct was violating either a law or rule or regulation promulgated pursuant to law; (2) he or she performed whistleblowing activity described in N.J.S.A. 34:19-3a, c(1) or c(2);³ (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistleblowing activity and the adverse employment action. Kolb v. Burns, 320 N.J.Super. 467, 476, 727 A.2d 525 (App. Div.1999). Plaintiff established he reasonably believed the unsanitary bathroom conditions and unlit exit sign at the elementary school violated health and...