Donelson v. DuPont Chambers Works

20 A.3d 384, 206 N.J. 243, 32 I.E.R. Cas. (BNA) 655, 2011 N.J. LEXIS 638
CourtSupreme Court of New Jersey
DecidedJune 9, 2011
DocketA-112 (065628)
StatusPublished
Cited by59 cases

This text of 20 A.3d 384 (Donelson v. DuPont Chambers Works) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donelson v. DuPont Chambers Works, 20 A.3d 384, 206 N.J. 243, 32 I.E.R. Cas. (BNA) 655, 2011 N.J. LEXIS 638 (N.J. 2011).

Opinions

Justice ALBIN

delivered the opinion of the Court.

A jury determined that DuPont Chambers Works1 (DuPont) violated the Conscientious Employee Protection Act (also referred to as CEPA), N.J.S.A. 34:19-1 to -8, by retaliating against one of its employees, plaintiff John Seddon, for reporting safety concerns about the company’s operation. The retaliatory acts caused Sed-don to suffer, in effect, a mental breakdown rendering him unfit for continued employment at DuPont. The jury found that Sed-don’s lost wages were the proximate result of DuPont’s retaliation and awarded him both economic and punitive damages.

The Appellate Division overturned the verdict and damages award, reasoning that the trial judge erred by not instructing the jury that Seddon could be awarded lost wages only if he was constructively discharged. According to the Appellate Division, Seddon was not entitled to lost wages unless “[t]he employer’s conduct [was] ‘so intolerable that a reasonable person would be forced to resign rather than continue to endure it.’ ” Donelson v. DuPont Chambers Works, 412 N.J.Super. 17, 31, 988 A.2d 604 (App.Div.2010) (citation and quotation omitted).

We now reverse the Appellate Division. Constructive discharge is but one ground for recovery of lost wages under CEPA CEPA does not permit an employer to take an “adverse employment action” against an employee for reporting workplace-safety violations. N.J.S.A. 34:19-2(e), -3. If an employer engages in unlawful retaliation, then it is accountable for the damages proximately [248]*248caused to the employee. Here, the trial judge properly instructed the jury on both the elements of a CEPA claim and the common-law principles of damages that apply to such a claim. Seddon introduced medical testimony that the reprisals against him for his whistle-blowing activities mentally disabled him from continued employment at DuPont. That was a sufficient basis for the award of lost wages. Seddon was not required to show that a “reasonable person”—one not psychologically injured—would have left DuPont because of the intolerable conditions of his employment.

We therefore reinstate the jury’s verdict and award of damages.

I.

Defendant DuPont, which manufactures chemical products, employed plaintiff John Seddon for approximately thirty years.2 In December 2002, Seddon was an operator technician in the phosgene building at one of DuPont’s facilities. Phosgene is a “highly toxic” and “very reactive chemical.”3 Among Seddon’s duties was to ensure the safe operation of equipment and the safe handling of dangerous chemicals in the building. He was also responsible for the safety of those who worked there and those who lived in the surrounding area.

In December 2002, Seddon expressed to a shift manager his concern about the dangerous manner in which DuPont’s security guards were conducting random searches of employees’ cars at nighttime. Drivers were made to exit from their cars at the front gate and stand unprotected in the dark while passing traffic, [249]*249including trucks, whizzed by.4 Because DuPont did nothing to ameliorate the safety hazards caused by these stops, Seddon filed a complaint with the federal Occupational Safety and Health Administration (OSHA).

After DuPont became aware of the OSHA complaint, it appointed Paul Kaiser to serve as Seddon’s direct shift supervisor. Kaiser began imposing sick- and vacation-day-reporting requirements specific to Seddon, who previously did not report to a shift supervisor.

In October 2003, Seddon filed complaints with DuPont’s management about unsafe conditions in the operation of the phosgene reactor. Seddon warned that deficiencies in the operation of the reactor could cause an explosion and the release of deadly gasses into the atmosphere, killing and seriously injuring nearby residents. Seddon compared the safety violations relating to the phosgene reactor to those that led to the infamous chemical disaster in Bhopal, India.5 In response, the DuPont Guardian Manual, to which Seddon referred in detailing safety violations, was removed from the phosgene control area where Seddon worked.

A few months later, according to Seddon, Kaiser falsely accused him of forging his timecards. Seddon also stated that, in March 2004, DuPont’s management falsely accused him of failing to take a proper reading of a caustic chemical and of making a fictitious entry in a log. There followed a negative performance review of Seddon and the institution of performance reviews every three months. During this time period, Kaiser subjected Seddon to constant verbal abuse. Seddon reported to DuPont’s corporate [250]*250headquarters that he had become the target of harassment for merely voicing safety concerns.

Although DuPont’s investigators questioned Seddon about his safety complaints and the ensuing harassment, their attention focused on allegations that Seddon had threatened DuPont employees, including Kaiser—allegations that Seddon categorically denied. In April 2004, based on a recommendation by DuPont’s employee-assistance counselor, Seddon was placed on short-term disability with pay. During that time, Seddon lost the considerable overtime that he had been earning. As a condition of his reinstatement, DuPont required that Seddon be examined by three mental-health experts and undergo a fit-for-duty evaluation. Three independent evaluators, a psychiatrist and two psychologists, examined Seddon and cleared him to return to work. Significantly, one of the mental-health experts diagnosed Seddon as exhibiting “features of significant dysphoria and vulnerability to depression.”6

The suspension, which lasted fifty-three days, made Seddon feel “worthless” and “beaten.” Moreover, DuPont placed Seddon on “probation” subject to performance reviews every three months. Seddon maintained that Kaiser continued to make false accusations that Seddon had threatened him and other employees. Interactions with Kaiser caused Seddon to suffer anxiety attacks, and Seddon lived in constant fear that he would become the target of continued false charges of misconduct.

In September 2006, DuPont required Seddon to work twelve-hour shifts in isolation. For Seddon, working a twelve-hour shift alone was “torture.” One month later, Seddon began seeing a therapist and psychiatrist.

In January 2007, Seddon took a six-month leave of absence. After completing that leave of absence, DuPont gave Seddon a disability pension. Seddon never returned to DuPont.

[251]*251II.

In February 2005, Seddon filed a civil complaint alleging that defendants DuPont and Kaiser retaliated against him for objecting to activity that he reasonably believed violated New Jersey’s law and public policy.7 Seddon asserted that the reprisals against him contravened the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. Seddon also asserted the common-law claim of intentional/negligent infliction of emotional distress against both defendants.8 Seddon sought compensatory damages for “loss of earnings and other employment benefits” and for suffering mental anguish, humiliation, and injury to his reputation.

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Bluebook (online)
20 A.3d 384, 206 N.J. 243, 32 I.E.R. Cas. (BNA) 655, 2011 N.J. LEXIS 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donelson-v-dupont-chambers-works-nj-2011.