Alan Schorr’s Employment Case of The Week ending May 2, 2014

Flecker v. Statue Cruises, LLC, trial verdict, see Appellate Division opinion at 2012 WL 5499894 (unpublished) (N.J.App.Div. November 14, 2012)

Howard Flecker scored a significant trial victory this week in Flecker v. Statue Cruises, LLC. This case was the subject of a Case of the Week article on November 16, 2012, when Flecker reversed a summary judgment order. At trial, Flecker convinced the jury that he had indeed been retaliated against for blowing the whistle and was awarded a $560,000 whistleblower verdict, including $200,000 in punitive damages by a Hudson County jury.

To recap the factual and procedural history, Howard Flecker was a deckhand on a ferry service operating from New York and New Jersey to Liberty and Ellis Island. His union negotiated a contract that provided that time and a half overtime pay would only be paid after 48 hours per week of work. Flecker, believing that the contract violated wage and hours laws, filed a single count lawsuit class action complaint. The employer promptly retaliated by cutting Flecker’s hours back to 40 hours per week and sending out a memo advising all employees that, because of the lawsuit, they would be losing their overtime.

This memo created great animosity toward Flecker, who, in addition to having his hours cut from 50 hours a week to 35, was confronted angrily by many of his co-workers. Flecker alleged that the harassment by his co-workers and management caused such stress that he was forced to resign from his position. His attorney was able to convince the company to issue a curative letter, but not until after Flecker had been forced to leave. He amended his complaint to bring a claim under CEPA, as well as a class action under CEPA on behalf of all similarly situated employees. The parties filed cross-motions for summary judgment. Plaintiff’s motion was denied and Defendant’s motion was granted, dismissing the case. Flecker appealed and the Appellate Division reversed the dismissal of the CEPA claim. The trial followed 18 months later.

The jury awarded $300,000 in emotional distress damages and $59,458 in back pay, along with $200,000 in punitive damages. Unfortunately for Mr. Flecker, it does not appear that this case is over. Statue Cruises’ attorneys told the New Jersey Law Journal that they will be filing an appeal on “two grounds of first impression”—whether Burke’s memo should have been excluded under the litigation privilege as a communication with potential overtime class members and whether the retaliation claim under CEPA is preempted by the National Labor Relations Act.

Watch this space for further developments on this very interesting case.

Plaintiff’s counsel: Ravi Sattiraju, The Sattiraju Law Firm, P.C.


Defendant’s counsel: Raymond G. McGuire (Kauff, McGuire & Margolis) of the New York bar, admitted pro hac vice, argued the cause for respondents (Genova, Burns & Giantomasi, and Mr. McGuire, attorneys; Patrick W. McGovern and Mr. McGuire, of counsel; Aislinn S. McGuire (Kauff, McGuire & Margolis) of the New York bar, admitted pro hac vice, on the brief).

United States District Judge: Joy Flowers Conti, Chief United States District Judge.

Trial Judge: Francis Schultz, J.S.C.