New Jersey Employment Attorneys Blog

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:

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.

An employee who is terminated for alleged sexual harassment based on a consensual out-of-work romantic relationship with a coworker, where no complaint of sexual harassment was ever made and where the employer’s investigation revealed no good-faith basis for concluding sexual harassment had occurred, can serve as the basis for a public-policy wrongful discharge claim pursuant to Pierce v. Ortho Pharmaceutical Corp, 84 NJ. 58 (1980) (holding that it is unlawful to discharge an employee in violation of a clear mandate of public policy) and Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) (requiring employers to conduct fair and thorough investigations of sexual harassment allegations). Both the New Jersey Supreme Court and the Appellate Division have held that consensual romantic relationships between coworkers do not constitute sexual harassment, even if one of the parties to the relationship is favored by the other to the detriment of third parties in the workplace.

In Erickson v. March & McLennan Co., Inc., 117 N.J. 539 (1990), a unanimous New Jersey Supreme Court held that (1) there was “no reason to extend the protection of the LAD to sex-discrimination claims based on voluntary personal relations in the workplace” and (2) “favoritism in the workplace, based solely on personal romantic preference as opposed to coercion, does not constitute discrimination on the basis of gender.” Id. at 557. Similarly, while addressing the discoverability of consensual sexual relationships between partners and employees at a law firm in a case in which the plaintiff associate alleged that she had been raped by one of the partners, the Appellate Division relied upon the distinction between sex in the workplace and sexual harassment in the workplace to bar discovery of such consensual sexual relationships. K.S. v. ABC Professional Corp., 330 N.J. Super. 288 (App. Div. 2000). The Appellate Division noted that “[s]ex is not congruent with sexual misconduct” in holding that “whether any partner ever had a consensual and welcomed relationship with an employee is irrelevant to plaintiffs’ claim that a hostile work environment was created or tolerated by defendants.”  Id. at 297. Hence, in New Jersey consensual sexual relationships in the workplace, even between superiors and subordinates, do not constitute sexual harassment, and therefore cannot be used as a predicate for firing an employee for sexual harassment. Given this, it may be gainsaid that an employer violates a clear mandate of New Jersey public policy by firing an employee for alleged sexual harassment based on the employee’s consensual romantic relationship with a coworker. Such a discharge violates a clear mandate of public policy and therefore is unlawful Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).

In Grasser v. United Healthcare Corporation, MID-L-12026-99, the company fired plaintiff Grasser after learning he had been involved in a romantic relationship with a female coworker even though no one (including the female coworker) had complained plaintiff Grasser had done anything inappropriate and despite the female coworker’s clear statement the relationship was entirely consensual. Moreover, the employer’s investigation uncovered absolutely no evidence that either plaintiff or the female coworker had done anything inappropriate in the workplace. Notwithstanding this, defendant-employer fired plaintiff anyway, asserting his relationship with the female coworker violated the company’s sexual harassment policy. In denying the defendant corporation’s motion for summary judgment, New Jersey Superior Court Judge Yolanda Ciccone, J.S.C. stated in part:

Although less frequently invoked than other provisions contained within the New Jersey Law Against Discrimination (LAD), the statute prohibits discriminatory refusal to do business with independent contractors because they or their family members possess one or more protected class characteristics. Specifically, N.J.S.A. § 10:5-12(l) provides:

“It shall be…an unlawful discrimination…For any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of the race, creed, color, national origin, ancestry, age, pregnancy or breastfeeding, sex, gender identity or expression, affectional or sexual orientation, marital status, civil union status, domestic partnership status, liability for service in the Armed Forces of the United States, disability, nationality, or source of lawful income used for rental or mortgage payments of such other person or of such other person’s family members, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers.…”

Similarly, the LAD prohibits discriminatory terminations of contracts. Rubin v. Chilton, 359 N.J. Super. 105 (App. Div. 2003).

Underscoring the paramount need to put in place comprehensive health and safety standards designed to mitigate the spread of the COVID-19 virus in our state, New Jersey Governor Phil Murphy recently issued Executive Order No. 192, requiring employers with employees physically present at worksites to adhere to strict COVID-19 safety requirements. Executive Order No. 192 provides in part:

1. Effective at 6:00 a.m. on Thursday, November 5, 2020, every business, non-profit and governmental or educational entity (hereinafter collectively referred to as “employers” or “employer”) that requires or permits its workforce to be physically present at a worksite to perform work is required to abide by the following requirements to protect employees, customers and all others who come into physical contact with its operations:

a. Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities, in common areas such as restrooms and break rooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance maintained at all times, employers shall ensure that each such employee wears a mask and shall install physical barriers between workstations wherever possible.

November 3, 2020 – General Election

Voter Registration Deadlines & Important Dates

This is a paper ballot election. All active, registered voters will receive a vote-by-mail ballot in the mail.

New Jersey health care facility workers cannot refuse to receive a flu shot.  On January 13, 2020, Governor Phil Murphy enacted N.J.S.A. § 26:2H-18.79, concerning influenza vaccination in New Jersey health care facilities.  The statute first provides that, beginning with the onset of the first flu season next following the effective date of the legislation, each health care facility (i.e., general or special hospital, nursing home or home health care agency) must establish and implement an annual flu vaccine program in accordance with the recommendations of the federal Centers for Disease Control and Prevention (CDC) and any rules and regulations adopted in accordance with the statute.

For the purposes of its annual flu vaccine program, each health care facility must annually provide a flu shot to each of its employees and require that each employee at the facility receive a flu shot annually no later than December 31 of the current flu season, which flu shot must be provided by the facility.

A health care facility employee who does not wish to have a flu shot must prove that he or she has a medical exemption, which must be submitted using a form designated by the Department of Health, stating that the flu shot is “medically contraindicated, as enumerated by the Advisory Committee on Immunization Practices of the federal Centers for Disease Control and Prevention.”  An attestation of a medical exemption is subject to approval by the facility following the facility’s review to confirm that the exemption is consistent with CDC standards.  A health care facility must not discharge or reduce the pay of any employee who receives a medical exemption from the annual flu shot requirement.