[Plaintiff] has alleged that he/she was wrongfully discharged from his/her position in violation of public policy. I charge you that the policy of ________________ is a clear mandate of public policySee footnote 2; you must decide whether plaintiff was discharged:
[choose appropriate option:] (1) in violation of that policy; (2) for exercising rights protected by that policy; and (3) for declining to perform an act or acts which require a violation of that policy;or whether, as defendant states, plaintiff was [choose appropriate alternative:] not discharged for a reason related to that policy. [or] discharged for some other reason unrelated to that policy.
[Choose appropriate option depending on which of the above three isapplicable:] (1) In order to establish that plaintiff was discharged in violation of a public policy, you must find by a preponderance of the evidence that plaintiff's discharge violated the [state the public policy]. If plaintiff does not prove this, you need not consider whether plaintiff's discharge was wrongful. If plaintiff does prove that his/her discharge violated the [public policy], then you must consider whetherSee footnote 3 a determinative factor for his/her discharge was a violation of the [public policy], not some other reason such as _________________________, which defendant has asserted. (2 and 3) In order to establish that plaintiff was discharged for exercising rights under [public policy] or for declining to perform an act or acts which
require a violation of the [public policy], you must find by a preponderance of the evidence that a determinative factor for plaintiff's discharge was his/her exercising rights or refusing to violate the public policy invoked here.
DETERMINATIVE FACTOR It is the plaintiff's obligation to prove, by a preponderance of the evidence, that his/her [choose appropriate protected class, age, sex, race, condition of handicap, etc.] was a determinative factor in the [describe the alleged adverse action in question, such as hiring, firing, etc.] A plaintiff need not prove that [protected status] was the employer's sole or exclusive consideration, but that his/her [protected status] made a difference in deciding [the adverse action].See footnote 4 In this regard, I remind you that plaintiff was a so-called "at-will" employee, that is he/she did not have a contract of employment. In New Jersey such an employee can be discharged at the wish of the employer for any reason or for no reason. He/she could be discharged for a false cause, or for no cause at all, provided only that the reason the employer discharged the employee did not violate any clear mandate of public policy. A person fired unfairly, but not fired in violation of a specific public policy, does not have a cause of action for
wrongful discharge in violation of public policy.
Footnote: 1This charge is to be given if a claim is asserted under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980).
Footnote: 2Whether there is a clear mandate of public policy prohibiting the conduct in a question for the trial judge. Warthen v. Toms River Community Hospital, 199 N.J. Super. 18, 25 (App. Div. 1985). If there is no such clear mandate of public policy involved, the matter should not be submitted to the jury. Whether there can be a separate cause of action for wrongful discharge if the public policy upon which plaintiff relies is the NJLAD (See Erickson v. Marsh & McLennan, 117 N.J. 539 (1990)), seems to have been decided by recent amendments to the NJLAD in the affirmative. If the public policy claimed to have been violated is the NJLAD, a charge on retaliation, as outlined in Jamison v. Rockaway Tp., Bd. of Educ., 242 N.J. Super. 436 (App. Div. 1990), may be appropriate if an employee claims that he or she was disciplined or otherwise retaliated against for asserting rights protected by the NJLAD.
Footnote: 3Marsh v. McLennan, at 560-561. This seems tautological, but that is what the opinion says.
Footnote: 4Smithers v. Bailar, 629 F.2d 892, 896-898 (3d Cir. 1980); Lewis v. University of Pittsburgh, 725 F.2d 910, 917-919 (3d Cir. 1983); Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 179 (3d Cir. 1985).
Model Civil Jury Charges
