On December 1, 2010, the New Jersey Supreme Court heard oral arguments in Donelson v. Dupont Chambers Works
, and will soon determine if a whistleblower who voluntarily quits his job can recover front and back pay under the New Jersey Conscientious Employee Protection Act (“CEPA”). The plaintiff, a former chemical plant operator at Dupont Chambers Works, filed safety complaints with Dupont management and the Occupational Safety and Health Administration (“OSHA”) while he was employed. Plaintiff sued alleging that Dupont retaliated against him and created a hostile work environment for him after he filed the OSHA complaint. Plaintiff alleged that he voluntarily retired from Dupont with a disability pension due to the hostile work environment.
The issue before the Supreme Court is whether plaintiff is entitled to monetary damages for lost pay even though he fails to allege he was constructively discharged. The Appellate Division held that CEPA does not entitle whistleblowers to economic damages unless they were terminated or constructively discharged. The Appellate Division applied the reasoning of the New Jersey Law Against Discrimination to the CEPA claim holding that a plaintiff must prove either actual or constructive discharge before receiving an economic damage award. Plaintiff has argued that CEPA’s remedy provision is broadly defined and must be liberally construed. Plaintiff further argues that economic damages should be permitted because Dupont’s retaliatory actions were a direct cause of plaintiff’s disability, which led to his voluntary retirement.
The Supreme Court’s pending decision will have important consequences for employers and future whistleblowers in New Jersey. If the Court overturns the decision of the Appellate Division, employers may face new whistleblower claims from employees who were neither terminated nor constructively discharged.