Alan Schorr’s Employment Case of The Week ending November 8, 2013

Scull v. The Wackenhut Corp., Civ.10-04633 (D.N.J., October 30, 2013)

It appears that the recent Supreme Court decision in Battaglia v. UPS, 214 N.J. 518 (2013) (link to blog article here), is being interpreted by Courts to make it more difficult for CEPA plaintiffs to prevail. In Scull v. The Wackenhut Corp., Judge Bumb, of the District of New Jersey in Camden, reversed her own trial verdict, which was in plaintiff’s favor for $400,000, finding that she committed an error in jury instruction based upon the subsequently released decision in Battaglia.

Robert Scull was a team leader who had worked for The Wackenhut Corp., a security contractor, for 20 years. He filed a CEPA claim after he alleged he was terminated for complaining that Wackenhut was violating Federal regulations by not having adequate security in a nuclear power facility. In a written decision in May 2012, Judge Bumb denied summary judgment, but expressed her doubts about the strength of Scull’s case, holding that he had “shown just enough weakness and implausibility in [Wackenhut’s] proffered reasons for the termination to create a genuine factual dispute as to whether they are in fact pretextual.” Scull v. Wackenhut Corp., 2012 WL 1900573, *13 (D.N.J., 2012).

The problem that caused the reversal is that Mr. Scull had complained about the lack of proper security at the nuclear facility. There is a specific regulation that requires proper security, and at summary judgment it was specifically enumerated as 10 C.F.R. § 73.50(a)(2) – “At least one supervisor of the security organization shall be on site at all times.” Judge Bumb also granted summary judgment regarding Scull’s claim that he had complained that Wackenhut was not properly documenting its weapons because Scull failed to point to a precise statute or regulation that makes it a violation of public policy to fail to properly document weapons.

At trial, although the Court was very clear that the regulations at issue were sections 73.50 (a)(2) and (a)(3), when it came time for jury instructions, the jury was permitted to hear and make decisions also regarding subsection (a)(1), which requires that there be a security plan, which Wackenhut apparently had. Because the jury instructions misled the jury as to the precise subsections that Scull complained were violated, Judge Bumb vacated the jury award and ordered a new trial in which only subsections (a)(2) and (a)(3) are at issue.

And therein lies a very dangerous new pitfall that all employment practitioners must be aware of prior to drafting a CEPA Complaint. It has been well-established since Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998), that a whistleblower need not know the precise statute or regulation that is being violated, so long as he has a “reasonable belief” that the activity being complained of violates public policy. Over the years, however, case law has developed that requires that, in order for a belief to be “reasonable” it must be correct. Therefore, in order to succeed on a CEPA, a plaintiff must be able to point to a specific statute, regulation or other law that was being violated. This was recently emphasized in Battaglia, 214 N.J. 518, 559 (2013) (“Vague and conclusory complaints, complaints about trivial or minor matters, or generalized workplace unhappiness are not the sort of things that the Legislature intended to be protected by CEPA.”), which was released after the Scull trial, and formed the basis of Judge Bumb’s decision to reverse. The Battaglia Court admonished judges in CEPA cases that:

Trial courts must be precise in their communications with the jury and must ensure that the factual evidence could support a basis for a CEPA claim. 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.

Plaintiff practitioners should carefully and thoroughly research the law before bringing CEPA and/or Pierce claims, and should specifically enumerate in the Complaint the precise statutes, regulations and laws that the plaintiff complained of, objected to, or refused to participate in. General allegations will expose plaintiffs to the possibility of dismissal for vagueness.

There is also another important practice pointer here. The inclusion of subsection (a)(1) was made over the objection of the defendant. So many successful verdicts get reversed because of jury instructions that are read over the objection of one party or another. Obviously, jury instructions are extremely important. But practitioners should consider opponent’s objections very carefully, and should be careful not to overreach or to take advantage of a judge’s confusion. A big verdict will only feel good for a little while if it is reversed based upon a faulty instruction made over an objection.

Plaintiffs’ Counsel: Matthew S. Wolf, Melissa A. Schroeder, Matthew S. Wolf, Esquire, LLC.

Defendants’ counsel: John K. Bennett, Michael D. Ridenour, Jackson Lewis LLP.

Trial Judge : Ren裠Marie Bumb, U.S.D.J.