Lakes v. City of Brigantine

931 A.2d 622, 396 N.J. Super. 65, 2007 N.J. Super. LEXIS 306
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 18, 2007
StatusPublished
Cited by2 cases

This text of 931 A.2d 622 (Lakes v. City of Brigantine) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lakes v. City of Brigantine, 931 A.2d 622, 396 N.J. Super. 65, 2007 N.J. Super. LEXIS 306 (N.J. Ct. App. 2007).

Opinion

PERSKIE, J.S.C.

Defendants brought a summary judgment motion, seeking dismissal of all counts of the complaint against all defendants. Most of the issues raised by the motion have been determined in previous rulings; what remains for consideration is the claim by the defendants that the complaint, brought pursuant to the provisions of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (“CEPA”), must be dismissed for failure to provide notice of the claim to the defendants pursuant to the requirements of the Tort claims Act, N.J.S.A. 59:8-3 to -11 (“TCA”). Counsel and the court have not found a reported decision on the question by a New Jersey court, although several federal court decisions address the issue. For the reasons that follow, I conclude that the notice provisions of TCA are not applicable to claims brought pursuant to CEPA and the defendants’ motion to dismiss the complaint must therefore be denied.

For purposes of this motion, the allegations of the complaint are accepted as the factual record. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995). Plaintiff William M. Lakes (“Plaintiff”)1 was an employee of the City of Brigantine. Plaintiff acknowledged to a supervisor, in response to an inquiry, that he had brought to the attention of the Occupational Safety and Health Administration (“OSHA”) the actions of co-employees in shooting BB guns at pigeons in a municipal building, conduct that plaintiff considered to be both illegal and improper under the circumstances. Following this acknowledgement, plaintiff’s work assignments were changed and he was subjected to ridicule and [67]*67isolation at work by both his co-workers and supervisors. He filed this CEPA complaint seeking damages for what he alleges to be adverse employment actions taken in response to his report to OSHA. He never filed any notice of claim pursuant to TCA.

The applicability of the notice requirements of TCA to causes of action brought pursuant to statutory authorization has been considered in a number of cases. In Fuchilla v. Layman, 109 N.J. 319, 537 A.2d 652, cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988), the Supreme Court decided the issue in the context of the applicability of the notice provisions of TCA to claims brought under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (“LAD”). In reaching its decision that TCA’s notice requirements did not apply to a LAD claim, the court applied an analysis that compared the history and purposes of the two statutory schemes in order to ascertain the legislative intent. The court concluded that the clear public policy of the LAD was to abolish discrimination in the work place, Id. at 334, 537 A.2d 652, and that the TCA was designed to provide compensation to tort victims without unduly disrupting governmental functions and without imposing excessive financial burden on the taxpaying public. Id. at 335, 537 A.2d 652. The court went on to discuss the fact that the statutes included distinct — and different — provisions for the procedures to be followed in filing claims under either statutory framework. The court concluded that “our reading of the history, purpose, and provisions of the two acts leads us to conclude that the Legislature did not intend that claims of discrimination be subject to the notice requirements of the [Tort Claims] Act.” Fuchilla, supra, 109 N.J. at 337-8, 537 A.2d 652.

Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 650 A.2d 958 (1994) provided further insight into the Supreme Court’s ruling in Fuchilla. In Abbamont, the plaintiff brought a CEPA claim against his employer, a school board. The issues before the Supreme Court were the vicarious liability of the public employer for the actions of its employees and the entitlement of the plaintiff to claim punitive damages against the public employer.

[68]*68Again, the Supreme Court undertook an analysis of the different purposes of the two statutory schemes, CEPA and TCA, in considering whether CEPA authorized a claim for punitive damages, notwithstanding the specific provisions of TCA that “no punitive or exemplary damages shall be awarded against a public entity.” N.J.S.A. 59:5-2c. The Court stated:

In Fuchilla, supra, 109 N.J. at 330-32, 537 A.2d 652, the Court ruled that the notice provisions of TCA do not apply to LAD actions. That reasoning was based, in part, on the different purposes of the two statutes. On the one hand, the purpose of LAD is “to abolish discrimination in the work place.” Therefore, awards under LAD are intended to serve not only individual interests but also the public interest. On the other hand, the purpose of TCA is “to provide compensation to tort victims without imposing excessive financial burdens on the taxpaying public.” “[A] discrimination claim is dissimilar to those envisioned by the Legislature to be included within the coverage of the Tort Claims Act” because, in part, “[d]iscriminatory conduct actionable under the Law Against Discrimination is more akin to the malicious or willful acts exempted from the Tort Claims Act than the negligently or similarly inflicted injuries covered thereby.” Moreover, “[the Tort Claims] Act disavows any remedial purpose to vindicate societal interests or to rectify public or governmental misconduct or to protect any individual constitutional or civil right. It thus expressly prohibits exemplary or punitive damages under the Act ...” Hence, the Court noted that LAD’s different purpose "suggests that the Legislature did not intend that the [Tort Claims] Act apply to discrimination claims.” [Citations omitted].
The purpose of CEPA, like that of LAD, is different from that of TCA. The whistleblower statute, like LAD, is a civil rights statute. Its purpose, is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Consistent with that purpose, CEPA must be considered “remedial” legislation and therefore should be construed liberally to effectuate its important social goal. Judiciary, Law and Public Safety Committee, Statement on Assembly Bills No. 2872, 2118, 2228 (1990) (indicating that “the remedies available under the “whistle-blower’ act are to be liberally construed”) ... Like LAD, CEPA promotes a strong public policy of the State: “We view this legislation as a reaffirmation of this State’s repugnance to an employer’s retaliation against an employee who has done nothing more than assert statutory rights and protections and a recognition by the Legislature of a preexisting common-law tort cause of action for such retaliatory discharge.” Lepore [LaPore] v. National Tool & Mfg. Co., 115 N.J. 226, 228, 557 A.2d 1371 (1988 [1989]).

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Bluebook (online)
931 A.2d 622, 396 N.J. Super. 65, 2007 N.J. Super. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lakes-v-city-of-brigantine-njsuperctappdiv-2007.