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Big Verdict For Janitor Who Complained About Broken Toilets

Recently, the New Jersey Supreme Court upheld the Appellate Division�s decision to let stand a $194,000 jury verdict in favor of a part-time janitor who complained about broken toilets and a burnt out light-bulb. In addition to holding that the janitor was a legitimate �whistle-blower� under the Conscientious Employee Protection Act (�CEPA�), the Supreme Court also ordered that the case go back down to trial to decide how much punitive damages and attorneys� fees should be imposed against the employer.

CEPA is a statute which protects employees from retaliatory action, such as termination, based upon an employee�s disclosure�or threat to disclose�a practice of the employer which the employee reasonably believes is in violation of the law. In Hernandez v. Montville Township Bd. of Ed., 179 N.J. 81 (2004), the plaintiff-janitor observed that a clogged toilet and a missing light bulb in an exit sign were not remedied for approximately one week. He apprized his immediate supervisors and tried to speak to the Superintendent of schools about it. At around the same time, he was terminated for excessive tardiness.

After the jury came back with a plaintiff�s verdict along with an award for $44,000 in lost wages and $150,000 for emotional distress, the trial court judge entered a JNOV, nullifying the jury�s decision. The trial judge lamented that �I should have never let [the case] go to the jury.� Concerning the whistle-blowing disclosures of the plaintiff, the judge remarked �talk about trivial . . . it is trivialization beyond belief.�

Nonetheless, a divided Supreme Court held that the trial judge should not have negated the jury�s award and concluded that the employer�s failure to respond quickly enough to unclog toilets and change a light bulb were sufficient bases upon which the plaintiff could articulate a CEPA claim because they dealt with issues of health and safety.

In a stinging dissent, Supreme Court Justice LaVecchia noted that CEPA was intended to protect employees who try to expose �illegal activities.� He believed that the employer�s failure to respond quickly to unclog toilets and replace a light bulb should not be viewed as a statutorily-recognized �activity, policy or practice� of the employer about which an employee could blow the whistle. The dissent further criticized the majority opinion because the plaintiff, who was a janitor, was the person at the school who was responsible for fixing the toilets and replacing the light bulb. Thus, the plaintiff was rewarded with a substantial jury verdict for having essentially complained about his own dereliction of duty.

The Hernandez case represents a further liberalization of what kinds of disclosures will be deemed �protected� under New Jersey law and makes it more difficult for employers to distinguish between an employee�s ordinary griping and statutorily-protected whistle-blowing.

Submitted by:

Jonathan Meyers, Esq.

Jonathan Meyers, Esq. is an attorney who practices in New York and New Jersey with the law firm of Grotta, Glassman & Hoffman, a firm that limits its practice to representing management in employment and labor law matters. He can be contacted at employmentlawyer@lawyer.com.


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