Alan Schorrs Employment Case of The Week ending July 26, 2013
Longo v. Pleasure Productions, Inc., ___ N.J. ___ , 2013 WL 3811800 (July 24, 2013)
The New Jersey Supreme Court took another swipe at CEPA this week, reversing a $500,000 jury verdict for punitive damages.
Doreen Longo worked in the sales department of the defendant, which was in the adult entertainment business. Longo alleged that she suffered harassment, discrimination and had to endure violent tirades from a co-worker. She complained to management, which took no action, and then terminated Ms. Longo shortly after her complaints. Longo filed suit and the matter went all the way to trial. At trial, the jury found in favor of Ms. Longo and awarded $120,000 economic loss, $30,000 in emotional distress damages, and $500,000 in punitive damages.
The Defendants appealed, and the Appellate Division upheld the entire verdict. There was, however, a dissent by Judge Wefing, which provided an automatic right of appeal for the Defendants. By a unanimous decision, the Supreme Court reversed the Appellate Division, and held that in cases arising under CEPA, an upper management jury charge is required to support an award of punitive damages against an employer, which can only be awarded if the jury finds wrongful conduct under the clear and convincing evidence standard.
The Supreme Court ruled that the trial court had failed to instruct the jury that punitive damages can only be awarded against an employer under CEPA if there is a specific finding that upper management was involved or were willfully indifferent to the retaliatory action against Ms. Longo. Since this instruction was not given, the Supreme Court ruled that the case must be remanded for a new trial on punitive damages. The verdict on compensatory damages, which was upheld by the Appellate Division, remains intact.
It is hard enough to get a CEPA verdict. With decisions like this from the Supreme Court, it is becoming equally difficult to retain the verdicts, even after they are won.
Plaintiffs counsel: Andrew W. Dwyer, La Toya L. Barrett.
Defendants counsel: Francis V. Cook, Jonathan D. Weiner, Abbey True Harris, and Jonathan D. Ash, Fox Rothschild.
Appellate Judges: Payne, Koblitz and Wefing (dissenting as to punitive damages).
Supreme Court Justices: Rabner, LaVecchia, Albin, Hoens and Patterson; and Judges Cuff and Rodriguez (temporarily assigned).