Alan Schorrs Employment Case of The Week ending July 19, 2013
Battaglia v. United Parcel Service, Inc., ___ N.J. , 2013 WL 3716939 (July 17, 2013)
The Supreme Court did not break any ground in Battaglia v. United Parcel Service, but the unanimous Court made an important statement that the goals underpinning the New Jersey Law Against Discrimination are as important as ever, and, even in its new make up, the New Jersey Supreme Court is still looking to strengthen, not weaken, the LAD.
Michael Battaglia was a center manager for UPS. He complained that a subordinate was making overtly discriminatory remarks derogatory to women. The subject of his complaints later became Battaglias supervisor and began retaliating against Battaglia. Battaglia also allegedly complained about fraudulent behavior by his co-workers. Ultimately, Battaglia was placed on paid leave and demoted. He filed suit against UPS.
At trial, the jury found UPS liable on CEPA and LAD claims and awarded Battaglia $500,000 in economic damages and $500,000 in emotional distress damages. UPS made numerous post-trial motions, and the court granted its request for remittitur of the emotional distress award, reducing it to $205,000. Both parties appealed. On the CEPA claim, the appellate panel found there was sufficient evidence for the jury to conclude that Battaglia believed that his co-workers behavior was truly fraudulent. Although the panel believed the CEPA charge was unclear, it found that UPS waived its objection and any error was harmless. The panel reversed the LAD verdict because there was no evidence the gender-based comments were heard by women. It also found that the trial court erred by allowing the jury to consider future damages on the emotional distress award without expert testimony.
The Supreme Court reversed the Appellate Division on both the CEPA and the LAD claims. The Supreme Court held that there was insufficient evidence to support the CEPA claim, but reinstated the LAD claim, holding that an employee who voices complaints and allegedly suffers a retaliatory employment action need only demonstrate a good-faith belief that the complained-of conduct violates the LAD. An identifiable victim of actual discrimination is not required. In other words, if discriminatory comments or actions are taken, it does not matter that any victim is identified in order for a complaint about such behavior to be protected.
The news was not completely good for Battaglia, however. The Supreme Court reversed and remanded the damages for future emotional distress, holding that in order to recover for future emotional distress, a plaintiff must present expert evidence of permanent emotional damages. Now Battaglia will have a new trial for damages, and at the trial will be able to advise the jury that he has been adjudicated a victim of discriminatory retaliation.
While the opinion may seem like a mixed bag, it was a victory for the plaintiff. The finding of liability is now final, and the damages for emotional distress (not future) were upheld. It was a weak CEPA case to begin with, and the requirement of an expert for future emotional distress is consistent with personal injury law.
The real news here is the make-up of the Supreme Court for this opinion. As the result of continued in-fighting between the Governor and the Legislature, there are currently only five Supreme Court Justices. To complete a full panel, Appellate Judges, generally the most senior judges, serve on the Court. This case posed even more significant challenges, however, since Justices Albin and LaVecchia recused themselves, as did both temporary judges, Rodriguez and Cuff. They were replaced by Judges Parillo and Fuentes. The important news is that Justice Hoens, writing for a unanimous Court, continued the Supreme Courts consistent support of the Law Against Discrimination.
As the make-up of our Supreme Court remains in flux, decisions like Battaglia, in which the Court continues its staunch support in the fight against discrimination, is a hopeful sign for the future.
Plaintiffs Counsel: Maureen S. Binetti, Stephanie D. Gironda, Wilentz, Goldman & Spitzer.
Defendants Counsel: Michael T. Bissinger, Joshua A. Polak, Day Pitney.
Supreme Court Justices: Chief Justice Rabner, Justice Patterson, and Judges Parillo and Fuentes (both temporarily assigned) joined in Justice Hoens unanimous opinion.
Appellate Division Judges: Wefing, Baxter and Hayden.