New Jersey Employment Attorneys Blog

NEW JERSEY APPELLATE DIVISION RULES THAT FAILURE TO ESTABLISH A CAUSAL NEXUS BETWEEN PROTECTED WHISTLEBLOWING ACTIVITIES AND CLAIMED ADVERSE EMPLOYMENT ACTIONS DOOMS PLAINTIFF’S WHISTLEBLOWING CLAIM

Published on: June 7, 2021 | by Mashel Law, L.L.C.

The failure to establish a causal nexus between protected whistleblowing activity and the termination of her employment was the demise of plaintiff’s whistleblowing claim in a recently issued Appellate Division opinion in Brown v. Regina Foley, et. al. 2021 N.J. Super. Unpub. LEXIS 957 (decided May 20, 2021). In Brown, the reviewing court also affirmed that representations made in an employee handbook promising an employee a pre-termination disciplinary hearing are unenforceable when accompanied by a prominently displayed disclaimer making clear that representations contained in the handbook do not create an express or implied contractual obligation requiring the employer to comply with its own policies and procedures.

Plaintiff, Anne Brown (“Brown”), a pharmacy manager at Bayshore Community Hospital (“Bayshore”), asserted claims for wrongful discharge in violation of, among others, the New Jersey’s Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 to -14. Bayshore terminated Brown for failure to report the undocumented and unauthorized removal of fentanyl vials from the hospital pharmacy’s drug dispensary cabinet, finding her failure to take any steps to report the missing vials to the Drug Enforcement Agency to be “egregious”. Brown argued in her complaint that the nonretaliatory reasons offered by Bayshore to justify her firing were pretext and that the true reason for her firing was, inter. alia., that she along with the hospital’s Chief Operating Officer had in the past complained about the alleged inferiority of a new automated system for dispensing controlled drugs. Brown also alleged she was not legitimately terminated because of the hospital’s failure to abide its prescribed disciplinary procedures when it failed to hold for her a review hearing prior to terminating her employment. Brown appealed the trial court’s grant to Bayshore of a motion for summary judgment dismissing her CEPA claim along with her other pled legal claims.

New Jersey’s CEPA law is designed to protect employee “whistleblowers,” making it unlawful for employers to take adverse employment action against employees who engage in protected, “whistleblowing” activities. N.J.S.A. §§ 34:19-1 et. seq. To survive a motion for summary judgment in a CEPA action, a plaintiff must demonstrate that: (1) he or she reasonably believed that his or her employer’s conduct was in violation of a law, rule, regulation, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Chiofalo v. State, 238 N.J. 527, 541 (2019). A plaintiff-claimant bringing an action under CEPA need not show that his or her employer actually conducted fraudulent or illegal activity, rather they are only required to produce sufficient evidence to support an objectively reasonable belief that a violation has occurred. Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003).

A “SUGGESTED COURSE” OF ILLEGAL ACTION BY A SUPERIOR MAY SATISFY THE REASONABLE BELIEF STANDARD UNDER CEPA THAT LAW OR PUBLIC POLICY WAS VIOLATED BY THE EMPLOYER

Published on: May 28, 2021 | by Mashel Law, L.L.C.

The New Jersey Supreme Court recently addressed, among other issues, the question of whether a “suggested course of action” by a supervisor to a subordinate can suffice as a reasonable belief under New Jersey’s whistleblower law that the supervisor wants the subordinate to engage in conduct that violates law or public policy. Allen v. Cape May County, 2021 N.J. LEXIS 392 (decided May 12, 2021). The unclear answer provided by the majority in Allen to this question is that it depends on the facts and circumstances underlying the communications between supervisor and subordinate. Justice Albin’s opinion in dissent (in part) was as equivocal.

Kim Allen (Allen) was the Purchasing Agent for Cape May County (County) under a renewable contract of employment. She reported to Gerald Thorton (Thorton), the County Freeholder Director. The story begins when a law firm named Capehart & Scatchard (Capehart) submitted a bid to represent the County in its workers compensation cases specifying only a proposed hourly rate rather than the County’s preferred per-case quote. Upon learning this, Jeffrey Lindsay, who as Director of Human Resources and Thorton’s stepson, oversaw the department that handled workers’ compensation matters for the County, approached Allen, and asked whether Capehart could fax a new proposal page to supplement the bid. Allen told Lindsay that it would be “illegal” to accept a substituted page (no page was ever switched out on the bid). Subsequent thereto, Allen told attorneys from a law firm named Ballard Spahr who were hired as independent investigators of an unrelated matter, about her exchange with Lindsay and how concerning it was to her. Ballard Spahr’s findings were submitted to the Freeholders in which the firm concluded that Lindsay had done nothing wrong.

Following this, the Freeholders nonrenewed Allen’s contract based on Thorton’s recommendation. Thorton claimed he made this recommendation because a number of department heads had complained about Allen’s job performance. Consequently, Allen filed a wrongful discharge whistleblowing lawsuit under New Jersey’s Conscientious Employee Protection Act (CEPA) alleging that her response to Lindsay’s inquiry about Capehart’s bid proposal and her statement to the Ballard Spahr investigator about that inquiry constituted CEPA-protected conduct.

ATTORNEYS WHO VIOLATE THE “GOLDEN RULE” WHEN CLOSING BEFORE A JURY AT TRIAL RISK THEIR CLIENTS LOSING HARD FOUGHT VERDICTS ON APPEAL

Published on: May 10, 2021 | by Mashel Law, L.L.C.

Attorneys who violate the “Golden Rule” when providing a closing summation to a jury at trial risk losing a verdict for their clients, so says the New Jersey Superior Court, Appellate Division in Morgan v. Willie Maxwell II, et. al., 2021 N.J. Super. Unpub. LEXIS 718 (decided April 26, 2021). Plaintiff Shawna Morgan (Morgan) was an administrative assistant for musical rap artist Willie Maxwell, II a/k/a “Fetty Wap”, his touring company Fetty Wap Touring, Inc (collectively the Fetty Wap Defendants), and Goodfella4life Ent., d/b/a RGF Productions, Inc. (RGF), his recording label. Prior to the trial, the Fetty Wap Defendants settled Morgan’s claims alleging breach of contract damages and defamation. Following a 5-day trial the jury entered a verdict in favor of Morgan and against RGF, the remaining defendant, in the sum of $1,167,065.63, representing an award of $980,000 for RGF’s alleged defamation of plaintiff, breach of contract damages totaling $66,294.42, and pre-judgment interest in the sum of $120,771.21. RGF appealed the verdict.

In addition to claims for unreimbursed expenses and unpaid commissions, Morgan’s lawsuit alleged the defendants defamed her when subsequent to her firing in April 2017, TMZ, a gossip website, published an article based on falsehoods propagated by the defendants alleging Morgan was fired for stealing money, and then RPG maliciously double-downed when it falsely alleged Morgan had misrepresented herself as a booking agent and illegally charged outside fees for her services.

At the close of trial, Morgan’s attorney argued to the jury:

NEW JERSEY SUPREME COURT SAYS MEDICAL MARIJUANA CAN BE A REASONBLE AND NECESSARY TREATMENT FOR WORK RELATED INJURIES, AND THEREFORE, A REIMBURSABLE COST UNDER NEW JERSEY WORKERS COMPENSATION ACT

Published on: April 23, 2021 | by Mashel Law, L.L.C.

Vincent Hager suffered serious work-related back injuries on a construction job while working for M&K Construction. He underwent surgeries and was prescribed opioid medication for his chronic pain which did not provide him adequate relief. Hager then enrolled in New Jersey’s medical marijuana program for pain management and to overcome his opioid addiction. He requested his M&K’s workers compensation carrier to reimburse him for the ongoing cost of his prescription marijuana. Following a trial, the workers compensation court ordered M&K to reimburse Hager for the cost of his prescribed marijuana use. The Appellate Division affirmed, and the case was appealed by M&K to the New Jersey Supreme Court. On appeal, M&K argued: 1) that New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (the Compassionate Use Act) was preempted by the federal Controlled Substances Act, 2) medical marijuana is not reimbursable under the New Jersey Workers’ Compensation Act (WCA) as a reasonable or necessary treatment, and 3) that medical marijuana use fits within an action to the Compassionate Use Act and therefore is not a reimbursable expense. The New Jersey Supreme Court in affirming the courts below, rejected M&K’s arguments. Hager v. M&K Construction, 2021 N.J. LEXIS 332 (decided April 13, 2021).

The Court began its analysis by explaining how the Compassionate Use Act, N.J.S.A. 24:6I-1 to -30, was enacted in 2010 in recognition of the beneficial uses of marijuana and to protect authorized individuals from criminal and civil penalties. Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416, 427 (App. Div. 2019) aff’d 241 N.J. 285 (2020). (See Mashel Law’s blog article posted on March 29, 2019 discussing the Appellate Division opinion in Wild). The Compassionate Use Act articulates legislative findings that, “[m]odern medical research has discovered a beneficial use for cannabis in treating or alleviating the pain or other symptoms associated with certain medical conditions”. The Court recognized that although the selling and distribution of medical marijuana is prohibited under federal law, many states like New Jersey have legalized it, and states are not required to enforce federal law. Id. at *14.

As to M&K’s argument that it need not reimburse Hager for his medical marijuana costs because under the Compassionate Use Act reimbursement for medical marijuana costs is not required of “a government medical assistance program or private health insurer,” the Court concluded that the Legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs under the Compassionate Use Act. Therefore, M&K is not exempt from its reimbursement obligation. Id. at *18 -*19.

NEW JERSEY WORKERS DO NOT NEED TO PROVE AN ADVERSE EMPLOYMENT ACTION TO PURSUE A FAILURE TO ACCOMMODATE CLAIM UNDER THE LAD AND A WORKER SEEKING BODILY INJURY DAMAGES IS NOT BARRED BY OUR STATE WORKERS COMPENSATION LAWS FROM BRINGING SUCH AN ACTION UNDER THE LAD.

Published on: April 16, 2021 | by Mashel Law, L.L.C.

Although there is no bright-line rule as to what constitutes an adverse employment action, New Jersey state and federal courts have held that actions causing direct economic harm (such as hiring, firing, failing to promote, or adjusting wages or benefits) qualify as adverse actions sufficient to support a prima facie case of employment discrimination. Domino v. Cty. of Essex, 2021 U.S. Dist. LEXIS 26261 (D.N.J. decided February 11, 2021); see also Campbell v. Supreme Court of New Jersey, 2014 U.S. Dist. LEXIS 176647, 2014 WL 7343225, at *6 (D.N.J. Dec. 23, 2014) (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999)). However, this leaves open the question of whether a disabled employee may pursue a failure to reasonably accommodate disability discrimination claim under New Jersey’s Law against Discrimination (LAD) when there has been no direct economic harm adverse employment action taken against the employee. In Richter v. Oakland Bd. Of Educ., 459 N.J. Super. 400 (App. Div. 2019) our Appellate Division answered this question and did so in the affirmative.

Plaintiff Mary Richter was a middle school teacher who suffers from diabetes, alleges she fainted while teaching due to low blood sugar levels when she was unable to eat lunch at an earlier class period and suffered significant and permanent injuries. She contends the accident would not have occurred had the Oakland Board of Education defendants granted her accommodation as required under New Jersey’s LAD to miss cafeteria duty so that she court eat lunch earlier to avoid a decrease in her blood sugar levels. The Defendants claimed to the contrary that they did not require Ms. Richter to work cafeteria duty and because they did not deny her a requested accommodation, they did not violate the LAD.

Because Richter was not fired or reassigned to another position, the motion judge below determined Richter could not establish a prima facie case of adverse employment action, and the motion judge concluded as well that plaintiff’s injuries were not due to defendants’ action but rather due to Richter’s personal decision to continue attending cafeteria rather than eating. Accordingly, the judge granted defendants’ motion for summary judgment dismissing Richter’s complaint, denied Richter’s cross-motion for summary judgment, and denied reconsideration of the dismissal. Richter appealed.

NEW JERSEY SUPREME COURT SAYS THAT UNDER THE DOCTRINE OF PROMISSORY ESTOPPEL A BROKEN VERBAL PROMISE OF EMPLOYMENT MAY ALLOW FOR A CLAIM FOR RELIANCE DAMAGES

Published on: April 9, 2021 | by Mashel Law, L.L.C.

Following a trial at the Law Division and an appeal to the Appellate Division, the New Jersey Supreme Court was asked to resolve whether a plaintiff could recover damages under a promissory estoppel theory of liability because he relied on defendant’s promise in quitting his prior employment. Goldfarb v. Solimine, 2021 N.J. LEXIS 161, 245 A.3d 570, 2021 WL 626991 (decided February 18, 2021). In Goldfarb, Plaintiff Jed Goldfarb claimed defendant David Solimine reneged on a promise of employment after Goldfarb quit his job to accept the promised position. Although an employment agreement and its terms were never reduced to writing, plaintiff asserts that he received specific promises of a base salary and return on investments for managing in-house the sizeable investment portfolio of defendant’s family. In response, Solimine argued that because an employment contract was never reduced to writing as required by New Jersey’s Uniform Securities Law of 1997 (the Securities Law) Goldfarb was barred from pursing an action against him. The Securities Law intends to forbid the enforcement of an investment advisory contract that has not been reduced to writing. In resolving the issue before it in favor of plaintiff Goldfarb, the Court distinguished between a breach of contract claim where the Court found Goldfarb could not pursue a claim because of the Securities Law’s requirement that contracts be writing, and the reliance-based doctrine promissory estoppel open to Goldfarb because it had no such requisite.

To begin its analysis, the Court pointed to well established case law instructing that “[a] contract is an agreement resulting in obligation enforceable at law.” Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 24 (1958). “[T]he basic features of a contract” are “offer, acceptance, consideration, and performance by both parties.” Shelton v. Restaurant.com, Inc., 214 N.J. 419, 439 (2013). “A contract arises from offer and acceptance, and must be sufficiently definite ‘that the performance to be rendered by each party can be ascertained with reasonable certainty.'” Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (quoting Caldwell, 26 N.J. at 24-25). For a viable breach of contact claim a party may pursue benefit-of-the-bargain or expectation damages, that is, damages that plaintiff would have earned had the contact not been breached. See Coyle v. Englander’s, 199 N.J. Super. 212, 214 (App. Div. 1985) (characterizing expectation damages, “i.e., loss of the benefit of the bargain,” as the “traditional” form of damages for breach of contract). The purpose of such compensating damages “is to put the injured party in as good a position as if performance had been rendered.” Totaro, Duffy, Cannova & Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 13 (2007) (ellipsis omitted) (quoting Donovan v. Bachstadt, 91 N.J. 434, 444 (1982)). [*23]

A promissory estoppel claim is different than a breach of contract claim. Promissory estoppel is made up of four elements: (1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment.” Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008); see Model Jury Charges (Civil), 4.10K “Promissory Estoppel” (approved May 1998). It has been long recognized that promissory estoppel is “a departure from the classic doctrine of consideration that the promise and the consideration must purport to be the motive each for the other,” providing instead that the operative “reliance is on a promise.” [*24], Friedman v. Tappan Dev. Corp., 22 N.J. 523, 536 (1956). Under promissory estoppel a successful plaintiff is entitled to reliance damages. In contrast to contract-based expectation damages, reliance damages look backward.

THE FEDERAL AMERICAN RESCUE PLAN PROVIDES A 100% COBRA SUBSIDY FOR THE PERIOD OF APRIL 1, 2021 THROUGH SEPTEMBER 30, 2021 FOR WORKERS INVOLUNTARILY DISCHARGED

Published on: April 2, 2021 | by Mashel Law, L.L.C.

The American Rescue Plan (ARP) signed into law by President Joe Biden provides plenty of benefits for those eligible including:

a) $242 billion in relief payments such as Economic Impact Payment of up to $1,400 for individuals or $2,800 for married couples, plus $1,400 for each dependent;

b) expansion of the Child Tax Credit from $2,000 to $3,600 for children under age 6, and $3,000 for other children under age 18;

PRETRIAL INCARCERATION DOES NOT NECESSARILY DISQUALIFY A CLAIMANT FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS

Published on: March 25, 2021 | by Mashel Law, L.L.C.

In Haley v. Bd. of Review, DOL, 2021 N.J. LEXIS 223* (Decided March 17, 2021) our New Jersey Supreme Court held that pretrial detention is not an absolute bar to receiving unemployment compensation benefits for the time following dismissal of the criminal charges and release from detention. Based on the specific facts presented, the Court concluded the Unemployment Compensation Law (UCL) and its regulatory analogs required the New Jersey Department of Labor and Workforce Development Department (DWLD) to review the totality of the circumstances surrounding claimant Haley’s detention and release to determine whether he “left work voluntarily.” Because this was not done, the Court ordered the DWLD to do so.

Between May and December 2017, the claimant Clarence Haley was employed. In December 2017, authorities arrested Haley, charging him with a number of serious offenses. Haley was jailed pretrial, and his employer was informed of Haley’s predicament by his mother, who requested them to keep his job open because he intended to get the charges dismissed shortly. Two months after his arrest, a grand jury declined to indict Haley and the prosecutor dismissed all charges releasing Haley from detention. Thereafter, Haley filed an application for unemployment benefits arguing he was entitled to unemployment insurance benefits because his pretrial incarceration was not a voluntary departure from employment. The DLWD denied the application, finding that Haley left his job voluntarily for personal reasons. The Appeal Tribunal, Board of Review, and Appellate Division each affirmed. The New Jersey Supreme Court granted certification.

Under the UCL, an individual who “has left work voluntarily without good cause attributable to such work” is “disqualified for benefits” until certain conditions are met. N.J.S.A. 43:21-5(a). N.J.A.C. 12:17-9.1(e) provides guidance as to what may, upon review, be deemed “voluntarily” leaving work. The reasons for leaving work set forth in N.J.A.C. 17-9.1(e) is a fact-sensitive analysis and has observed that it did not “intend that this rule automatically result in a finding of voluntarily leaving work without good cause attributable to the work when the leaving was due to the reasons listed.” It has stated, regarding separation through incarceration, that “the relevant circumstances of the individual’s incarceration will be considered in deciding the voluntary or involuntary nature of the separation.” Relatedly, incarceration – like the other reasons listed under N.J.A.C. 12:17-9.1(e) — is not, in and of itself, an absolute bar to unemployment benefits. Haley v. Bd. of Review, DOL, 2021 N.J. LEXIS 223, at *18 -*19.

THE THIRD CIRCUIT SAYS IT IS SUFFICIENT AT THE PLEADING STAGE FOR THE PLAINTIFF IN AN AGE DISCRIMINATION CASE TO MERELY ALLEGE HE WAS REPLACED BY SOMEONE “SIGNIFICANTLY YOUNGER” TO SURVIVE A MOTION TO DISMISS

Published on: March 19, 2021 | by Mashel Law, L.L.C.

Dr. Zeferino Martinez, a 70-year-old orthopedic surgeon, was fired in 2017 by UPMC Susquehanna, a Pennsylvania located hospital where he worked. UPMC claimed Dr. Martinez was let go not because of his work performance, but rather because the hospital was “moving in a different direction and his services were no longer needed.” UPMC replaced Dr. Martinez with two younger doctors, although their ages were not known by Dr. Martinez at the time. Thereafter, Dr. Martinez filed a lawsuit in federal court alleging his firing was unlawfully motivated by his age in violation of, inter. alia., the federal Age Discrimination in Employment Act (ADEA). The District Court granted UPMC’s motion to dismiss holding that a plaintiff cannot just allege that his replacement was “substantially younger” because that is a legal conclusion, not a factual allegation that must be taken as true. Martinez c. UPMC Susquehanna, 2019 U.S. Dist. LEXIS 135176, WL 3776587 (M.D. P.A. Aug. 12, 2019) at *3. Because the complaint did not allege the replacement doctors’ ages, the Court thought it could not infer age discrimination. at *4. Dr. Martinez appealed the dismissal to the United State Court of the Appeals for the Third Circuit.

A motion to dismiss brought in federal court must be denied if the complaint, on its face, contains sufficient factual matter to show that a claim to relief is “plausible.” Ashcroft v. lgbal, U.S., 129 S. Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The “plausibility standard” does not require the Plaintiff to establish a probability of liability, only more than a mere possibility. Id. (citing Twombly, 550 U.S. at 556-57, 570). This analysis requires the reviewing court to “draw upon its judicial experience and common sense” in making this determination, and to consider the complaint as a whole and in context. Iqbal, at 1950. The court must “‘accept all factual allegations as true, construe the complaint in the light most favorable to the Plaintiff, and determine whether, under any reasonable reading of the complaint, the Plaintiff may be entitled to relief.”‘ Phillips v. County of Allegheny, 515 F.3d 224,231 (3^rd Cir. 2008) (quoting Pinker v. Roche Holding Ltd., 292 F.3d 361, 374 n.7 (3rd Cir. 2002)). However, “[t]his standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its fact.” Litras v. PVM Intern. Corp., No. 11-cv-5695 (JFB) (AKT), 2013 WL 4118482 (E.D.N.Y. Aug. 15, 2013) (citing Twombly, 550 U.S. at 556-57, 570). Thus, the court determines whether the plaintiff is entitled to offer evidence in support of the allegations, and not whether the plaintiff will ultimately prevail. Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3rd Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232,236 (1974)).

The Third Circuit in reversing the District Court below, viewed Dr. Martinez’s allegation that his replacement doctor comparators were “significantly younger” as a factual allegation and not a conclusion of law. Martinez c. UPMC Susquehanna, 986 F.3d. 261, 265 (3^rd Cir. 2021). In doing so, the Third Circuit opined:

NEW JERSEY SUPREME COURT MAKES CLEAR THAT UNEQUAL OR UNFAVORABLE TREATMENT OF PREGNANT OR BREASTFEEDING WOMEN IN THE WORKPLACE WILL NOT BE TOLERATED

Published on: March 11, 2021 | by Mashel Law, L.L.C.

Back on January 13, 2020 this blog site discussed a New Jersey Appellate Division decision interpreting the New Jersey Pregnant Workers’ Fairness Act (PWFA) which amended existing provisions of the New Jersey Law Against Discrimination (LAD) at N.J.S.A., 10:5-12(s) thereby requiring employers to provide pregnant (and breast feeding) workers with reasonable accommodations – such as temporary transfers to less strenuous or hazardous work – to allow them to continue working. Delanoy v. Twp. of Ocean, 462 N.J. Super. 78 (App. Div. 2020). This decision was appealed by the employer to the New Jersey Supreme Court who this week issued an opinion affirming the Appellate Division while making clear that three distinct causes of action are provided under N.J.S.A., 10:5-12(s) to aggrieved pregnant (and breast feeding) employees: (1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee; (2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee (subject to the employer’s claim of undue hardship, separately explained in the subsection); and (3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation. Delanoy v. Twp. of Ocean, 2021 N.J. LEXIS 173 at *16 (decided March 9, 2021).

In Delanoy, plaintiff, a pregnant police officer, notified her employer, the Ocean Township Police Department (OTPD) of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g., carrying a gun) during the later stages of her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The OTPD assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’) allowing pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” The OTPD also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the OTPD refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The OTPD argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant. The New Jersey Appellate Division disagreed.

In an opinion authored by Justice LaVecchia, the New Jersey Supreme Court in affirming the Appellate Division below declared the OTPD’s Maternity SOP facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work. The Light Duty SOP provided for a waiver of the accumulated-leave condition, and the Maternity SOP did not. Therefore, on its face, the Maternity SOP constituted a per se violation of the PWFA’s prohibition of unfavorable treatment of pregnant employees. The Court accordingly affirmed the Appellate Division’s reversal of the trial court’s denial of partial summary judgment to Delanoy on her facial challenge. The Court remanded for a jury trial only on the issues of causation and damages.