Civil Model Jury Charge 2.32
NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT (“CEPA”)
(N.J.S.A. 34:19-1 et seq.)
Plaintiff
claims that defendant [insert alleged retaliatory action, e.g., terminated
his/her employment, demoted him/her, failed to promote him/her, subjected
him/her to a hostile work environment][1]1 because plaintiff [insert alleged protected activity,
such as disclosed or threatened to disclose to a supervisor or public body, or
provided information or testimony to a public body, or objected to or refused
to participate in] regarding [insert description of alleged wrongful
activity, policy, or practice about which plaintiff “blew the whistle”].[2]
Defendant denies these allegations and instead maintains
that it [insert alleged retaliatory action] because [insert defendant’s explanation, such as
“plaintiff’s job performance was inadequate”, “plaintiff’s job was eliminated”,
etc.]. If defendant did, in fact, [insert
alleged retaliatory action] because plaintiff [insert alleged protected
activity] regarding [insert description of alleged wrongful activity,
policy, or practice about which plaintiff “blew the whistle”], that would
be unlawful under the New Jersey Conscientious Employee Protection Act.
Generally, juries should not be
charged regarding the prima facie case and the shifting burdens of proof
in cases brought under the CEPA. See,
e.g., Zappasodi v. State, 335 N.J. Super. 83, 88-91 (App.
Div. 2000) (holding in a CEPA case that “the … analytical framework of pretext
and burden-shifting need not be a component part of the jury charge”). The New Jersey Supreme Court has so held with
regard to cases brought under the Law Against Discrimination (LAD). Mogull
v. CB Commercial Real Estate Group, Inc., 162 N.J. 449 (2000). The
reasoning of Mogull that the burden-shifting analysis was created for
purposes of summary judgment motions and will unduly confuse juries applies
with equal force to CEPA claims.
Consequently, the following language regarding the plaintiff’s prima
facie burden should only be charged when one or more of the elements of the
prima facie case are in dispute.
[If one or more of the prima
facie elements is in dispute, charge the relevant portion(s) of the following
explanation of the plaintiff’s prima facie burden:]
Plaintiff must show that it is more likely than not that (1)
he/she reasonably believed that [insert description of alleged wrongful
activity, policy, or practice about which plaintiff “blew the whistle”] was
either (a) in violation of a law or rule or regulation issued under the law
(including laws, rules, and regulations prohibiting fraud and criminal
conduct), or (b) incompatible with a
clear mandate of public policy concerning public health, safety, or welfare or
the protection of the environment;[3] (2) he/she
[insert alleged protected activity] regarding [insert description of
alleged wrongful activity, policy, or practice about which plaintiff “blew the
whistle”]; (3) defendant [insert alleged retaliatory action]; and
(4) the existence of a causal connection between his/her protected activity and
the retaliation by the defendant.[4],[5]
To prove the first element of his/her claim, plaintiff must
establish that he/she reasonably believed that [insert description of
alleged wrongful activity, policy, or practice about which plaintiff “blew the
whistle”] was either (a) in violation of a law or rule or regulation issued
under the law (including laws, rules, and regulations prohibiting fraud, crime,
and improper health care), or (b) incompatible with a clear mandate of public
policy concerning public health, safety, or welfare or the protection of the
environment, plaintiff need not prove that [insert description of alleged
wrongful activity, policy, or practice about which plaintiff “blew the whistle”]
actually violated the law or a clear mandate of public policy. Rather,
plaintiff need only prove that he/she reasonably believed that to be the
case. Put another way, plaintiff need
not prove that a law or clear mandate of public policy would have been violated
if the facts he/she alleges regarding [insert description of alleged
wrongful activity, policy, or practice about which plaintiff “blew the whistle”]
are true. The only thing you must decide
with respect to this issue is whether plaintiff actually held the belief that [insert
description of alleged wrongful activity, policy, or practice about which
plaintiff “blew the whistle”] was unlawful or in violation of public
policy, and whether that belief was reasonable.[6] I charge
you that there is a [law] [rule] [regulation] [public policy] that closely
relates to the conduct about which plaintiff blew the whistle. That [law] [rule] [regulation] [public policy]
states that [insert description of relevant law/rule/regulation/public
policy].[7] You need not decide whether [insert
description of alleged wrongful activity, policy, or practice about which
plaintiff “blew the whistle”] actually violated that [law] [rule]
[regulation] [public policy]. The only
thing you must decide is whether plaintiff believed that [insert
description of alleged wrongful activity, policy, or practice about which
plaintiff “blew the whistle”] violated the [law] [rule] [regulation] [public
policy] that I just described, and, if so, whether plaintiff’s belief was
reasonable.[8]
To prove the second element of his/her claim, plaintiff must
establish that he/she actually “blew the whistle”. Thus, you must determine whether plaintiff
has proven that, it is more likely than not that, he/she [insert alleged
protected activity] regarding [insert description of alleged wrongful
activity, policy, or practice about which plaintiff “blew the whistle”].
To prove the third element of his/her claim, plaintiff must
establish that defendant took retaliatory action against him/her. Retaliatory action can be a discharge, suspension, demotion, or any other adverse
employment action taken against an employee in the terms and conditions of
employment.[9]
Retaliatory
action does not need to be a single incident.
Rather, it can include many separate but relatively minor instances of
adverse action against an employee.[10]
NOTE TO COURT
The following addresses the fourth
and final element of plaintiff’s prima facie case. It is also the ultimate issue to be decided
by the jury:
To
prove the fourth and final element and to prevail in his/her case, the
plaintiff must prove, by a preponderance of the evidence, the existence of a
causal connection between his/her protected activity and the retaliation by
his/her employer. In other words, it is
plaintiff’s burden to prove that it is more likely than not that defendant
engaged in intentional retaliation against plaintiff because plaintiff [insert
alleged protected activity] regarding [insert description of alleged
wrongful activity, policy, or practice about which plaintiff “blew the whistle”]. That is the ultimate issue you must
decide: did defendant [insert alleged
retaliatory action] because plaintiff [insert alleged protected activity]
regarding [insert description of alleged wrongful activity, policy, or
practice about which plaintiff “blew the whistle”]. Plaintiff may prove this directly, by proving
that a retaliatory reason more likely than not motivated defendant’s action, or
indirectly, by proving that defendant’s stated reason for its action is not the
real reason for its action.[11] You may find that defendant had more than
one reason or motivation for its actions.
For example, you may find that defendant was motivated both by a
retaliatory reason and by other, non-retaliatory factors, such as plaintiff’s
job performance. To prevail, plaintiff
is not required to prove that retaliation was the only reason or motivation for
defendant’s actions. Rather, plaintiff
must only prove that retaliation played a role in the decision and that it made
an actual difference in defendant’s decision.
If you find that retaliation did make an actual difference in defendant’s
decision, then you must enter judgment for the plaintiff. If, however, you find that defendant would
have made the same decision regardless of whether plaintiff [insert alleged
protected activity] regarding [insert description of alleged wrongful
activity, policy, or practice about which plaintiff “blew the whistle”],
then you must enter judgment for the defendant.[12]
Because direct proof of retaliation is often not available,
plaintiff is allowed to prove retaliation by circumstantial evidence. In that regard, you are to evaluate all
indirect evidence of retaliation that you find was presented during the
trial. [The court may refer to
specific types of indirect evidence presented during the trial, such as
comparative evidence, statistical evidence, prior conduct, and/or comments of
the parties, etc.]
One kind of
circumstantial evidence can involve the timing of events, i.e., whether
defendant’s action followed shortly after defendant became aware of plaintiff’s
[insert alleged protected activity].
While such timing may be evidence of retaliation, it may also simply be
coincidental – that is for you to decide.
Another kind of circumstantial evidence might involve proof that
defendant’s behavior toward plaintiff changed for the worse after defendant
became aware of plaintiff’s [insert alleged protected activity]. Again, this may be evidence of retaliation,
or it may simply be coincidental – that is for you to decide.
You should also consider whether the explanation given by
defendant for its actions was the real reason for its actions. If you do not believe the reason given by
defendant is the real reason that defendant [insert alleged retaliatory
action] against plaintiff, you may, but are not required to find, that
plaintiff has proven retaliation.[13]
You are permitted to do so because, if you find that
defendant has not told the truth about why it acted, you may conclude that it
is hiding retaliation. However, while
you are permitted to find retaliation based upon your disbelief of defendant’s
stated reasons, you are not required to do so.
This is because you may conclude that defendant’s stated reason is not
the real reason, but that the real reason is something other than unlawful
retaliation.
In short, the ultimate issue that you must decide is whether
plaintiff has proven that it is more likely than not that defendant unlawfully
retaliated against him/her for his/her [insert alleged protected activity].
1
This charge uses
the pronoun “it” in referring to the defendant in recognition of the fact that
the defendant will usually be the employer and thus will usually be an
institutional entity. It is important to
note that, as of the date of this Charge, it remains unsettled whether New
Jersey recognizes the existence of individual liability under CEPA and
conflicting case law supports both positions. Compare Cokus v. Bristol Myers-Squibb Co., 362 N.J. Super. 245 (App. Div. 2003) and Ecker v. Dana Transport Systems, Inc.,
2006 WL 740468 (L. Div. 2006) (failing to recognize individual liability under
CEPA), with Maw v. Advanced
Clinical Communications, Inc., 359
N.J. Super. 420 (App. Div.
2003), rev’d on other grounds, 179 N.J. 439 (2004) and Zelkina v. Orlioukova, 2009 WL 417282 (App. Div. 2009) (recognizing
individual liability under CEPA). The
Supreme Court has not addressed this issue.
[2]
The trial court “must be precise in [its] communications with the jury and must
ensure that the factual evidence could support a basis for a CEPA claim.” Battaglia v. United Parcel Serv., 214 N.J. 518, 559 (2013). Thus, “[i]n instructing the jury on a CEPA
claim, it is incumbent upon the court to identify the protected activity
precisely” and not through a “broad and open-ended description in the jury
charge.” Id. at 561-62.
[3] The first
element of jury instructions setting forth the elements of a CEPA claim in
cases involving a licensed or certified health care professional should read as
follows: “Plaintiff must show that it is
more likely than not that (1) he/she reasonably believed that [insert
description of alleged wrongful activity, policy, or practice about which
plaintiff “blew the whistle”] constituted improper quality of
patient care”. N.J.S.A. 34:19-3.
[4] Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (setting
forth elements of prima facie case under CEPA).
[5]
This portion of the charge dealing with
the prima facie elements does not address the fourth prima facie element
of a causal connection between the protected activity and the retaliatory
action because that is the ultimate issue that the jury will decide, and it is
addressed below in the instruction to the jury regarding whether the
whistle-blowing was a determinative factor in causing the retaliatory action.
[6] Id.
at 462-64 (holding that CEPA “does not require a plaintiff to show that a law,
rule, regulation or clear mandate of public policy actually would be violated
if all the facts he or she alleges are true [; i]nstead, a plaintiff must set
forth facts that would support an objectively reasonable belief that a
violation has occurred … [and] the jury then must determine whether the
plaintiff actually held such a belief and, if so, whether that belief was
objectively reasonable”).
[7] Id.
at 463-64 (holding that “the trial court must identify a statute, regulation,
rule, or public policy that closely relates to the complained-of conduct”).
8 “When
instructing juries, trial courts must be vigilant in identifying the essential
complaint made by the employee in order that the jury will be able to test it
against the standards that the law imposes as a prerequisite to recovery.” Battaglia v. United Parcel Serv., 214 N.J. 518, 559-60 (2013). To that end, the trial court’s description
must “provide the jury with the appropriate focus as a matter of law” so as to
allow the jury to test the CEPA claim “against what plaintiff knew and
reasonably believed, not upon what actually was or was not happening.” Id.
at 562.
[10] Green
v. Jersey City Bd. of Ed., 177 N.J.
434, 448 (2003); Nardello v. Twp. of Voorhees, 337 N.J. Super. 428,
434-435 (App. Div. 2005); Beasley v. Passaic County, 377 N.J. Super. 585, 609 (App. Div.
2005).
[11]
Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000) (holding
that in “[e]xamining whether a retaliatory motive existed, jurors may infer a
causal connection based on the surrounding circumstances”).
[12]
Donofry v. Autotote Systems, Inc. 350
N.J. Super. 276, 296 (App. Div. 2001)
(holding that “[p]laintiff’s ultimate burden of proof is to prove by a
preponderance of the evidence that his protected whistle-blowing activity was a
determinative…motivating factor in defendant’s decision to [take adverse
employment action against plaintiff] – that it made a difference [:plaintiff
need not prove that his whistle-blowing activity was the only factor in the decision
to take adverse employment action]”).
[13] Fleming
v. Correctional Healthcare Solutions, Inc., 164 N.J. 90 (2000)
(holding in CEPA case that “the ‘factfinder’s disbelief of the reasons put
forward by the defendant … may … suffice to show intentional [retaliation]’” (quoting
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct.
2742, 2749, 125 L.Ed. 2d 407 (1993)).
