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Civil Model Jury Charge 2.32 CONSCIENTIOUS EMPLOYEE PROTECTI

Civil Model Jury Charge2.32NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) (N.J.S.A.34:19-1et seq.)

Plaintiff claims that defendant [insert alleged retaliatory action, e.g., terminated his/her employment, demoted him/her, failed to promote him/her, subjected him/her to a hostile work environment][1]1because plaintiff [insert alleged protected activity, such as disclosed or threatened to disclose to a supervisor or public body, or provided information or testimony to a public body, or objected to or refused to participate in] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].[2]

Defendant denies these allegations and instead maintains that it [insertalleged retaliatory action]because [insert defendants explanation, such as plaintiffs job performance was inadequate, plaintiffs job was eliminated, etc.].If defendant did, in fact, [insert alleged retaliatory action] because plaintiff [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle], that would be unlawful under theNew Jersey Conscientious Employee Protection Act.

NOTE TO COURT

Generally, juries should not be charged regarding theprima faciecase and the shifting burdens of proof in cases brought under the CEPA.See,e.g.,Zappasodi v. State, 335N.J. Super.83, 88-91 (App. Div. 2000) (holding in a CEPA case that the analytical framework of pretext and burden-shifting need not be a component part of the jury charge).The New Jersey Supreme Court has so held with regard to cases brought under theLaw Against Discrimination(LAD).Mogull v. CB Commercial Real Estate Group, Inc., 162N.J.449 (2000). The reasoning ofMogullthat the burden-shifting analysis was created for purposes of summary judgment motions and will unduly confuse juries applies with equal force to CEPA claims.Consequently, the following language regarding the plaintiffsprima facieburden should only be charged when one or more of the elements of theprima faciecase are in dispute.

[If one or more of the prima facie elements is in dispute, charge the relevant portion(s) of the following explanation of the plaintiffs prima facie burden:]

Plaintiff must show that it is more likely than not that (1) he/she reasonably believed that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] was either (a) in violation of a law or rule or regulation issued under the law (including laws, rules, and regulations prohibiting fraud and criminal conduct), or(b) incompatible with a clear mandate of public policy concerning public health, safety, or welfare or the protection of the environment;[3](2) he/she [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle]; (3) defendant [insert alleged retaliatory action]; and (4) the existence of a causal connection between his/her protected activity and the retaliation by the defendant.[4],[5]

To prove the first element of his/her claim, plaintiff must establish that he/she reasonably believed that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] was either (a) in violation of a law or rule or regulation issued under the law (including laws, rules, and regulations prohibiting fraud, crime, and improper health care), or (b) incompatible with a clear mandate of public policy concerning public health, safety, or welfare or the protection of the environment, plaintiff need not prove that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] actually violated the law or a clear mandate of public policy. Rather, plaintiff need only prove that he/she reasonably believed that to be the case.Put another way, plaintiff need not prove that a law or clear mandate of public policy would have been violated if the facts he/she alleges regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] are true.The only thing you must decide with respect to this issue is whether plaintiff actually held the belief that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] was unlawful or in violation of public policy, and whether that belief was reasonable.[6]I charge you that there is a [law] [rule] [regulation] [public policy] that closely relates to the conduct about which plaintiff blew the whistle.That [law] [rule] [regulation] [public policy] states that [insert description of relevant law/rule/regulation/public policy].[7]You need not decide whether [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] actually violated that [law] [rule] [regulation] [public policy].The only thing you must decide is whether plaintiffbelievedthat [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] violated the [law] [rule] [regulation] [public policy] that I just described, and, if so, whether plaintiffs belief was reasonable.[8]

To prove the second element of his/her claim, plaintiff must establish that he/she actually blew the whistle.Thus, you must determine whether plaintiff has proven that, it is more likely than not that, he/she [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].

To prove the third element of his/her claim, plaintiff must establish that defendant took retaliatory action against him/her.Retaliatory action can be adischarge, suspension, demotion, or any other adverse employment action taken against an employee in the terms and conditions of employment.[9]Retaliatory action does not need to be a single incident.Rather, it can include many separate but relatively minor instances of adverse action against an employee.[10]

[End Of Optional Prima Facie Element Section]

NOTE TO COURT

The following addresses the fourth and final element of plaintiffsprima faciecase.It is also the ultimate issue to be decided by the jury:

To prove the fourth and final element and to prevail in his/her case, the plaintiff must prove, by a preponderance of the evidence, the existence of a causal connection between his/her protected activity and the retaliation by his/her employer.In other words, it is plaintiffs burden to prove that it is more likely than not that defendant engaged in intentional retaliation against plaintiff because plaintiff [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].That is the ultimate issue you must decide:did defendant [insert alleged retaliatory action]because plaintiff[insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].Plaintiff may prove this directly, by proving that a retaliatory reason more likely than not motivated defendants action, or indirectly, by proving that defendants stated reason for its action is not the real reason for its action.[11]You may find that defendant had more than one reason or motivation for its actions.For example, you may find that defendant was motivated both by a retaliatory reason and by other, non-retaliatory factors, such as plaintiffs job performance.To prevail, plaintiff is not required to prove that retaliation was the only reason or motivation for defendants actions.Rather, plaintiff must only prove that retaliation played a role in the decision and that it made an actual difference in defendants decision.If you find that retaliation did make an actual difference in defendants decision, then you must enter judgment for the plaintiff.If, however, you find that defendant would have made the same decision regardless of whether plaintiff [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle], then you must enter judgment for the defendant.[12]

Because direct proof of retaliation is often not available, plaintiff is allowed to prove retaliation by circumstantial evidence.In that regard, you are to evaluate all indirect evidence of retaliation that you find was presented during the trial.[The court may refer to specific types of indirect evidence presented during the trial, such as comparative evidence, statistical evidence, prior conduct, and/or comments of the parties, etc.]

One kind of circumstantial evidence can involve the timing of events,i.e.,whether defendants action followed shortly after defendant became aware of plaintiffs [insert alleged protected activity].While such timing may be evidence of retaliation, it may also simply be coincidental that is for you to decide.Another kind of circumstantial evidence might involve proof that defendants behavior toward plaintiff changed for the worse after defendant became aware of plaintiffs [insert alleged protected activity].Again, this may be evidence of retaliation, or it may simply be coincidental that is for you to decide.

You should also consider whether the explanation given by defendant for its actions was the real reason for its actions.If you do not believe the reason given by defendant is the real reason that defendant [insert alleged retaliatory action] against plaintiff, you may, but are not required to find, that plaintiff has proven retaliation.[13]

You are permitted to do so because, if you find that defendant has not told the truth about why it acted, you may conclude that it is hiding retaliation.However, while you are permitted to find retaliation based upon your disbelief of defendants stated reasons, you are not required to do so.This is because you may conclude that defendants stated reason is not the real reason, but that the real reason is something other than unlawful retaliation.

In short, the ultimate issue that you must decide is whether plaintiff has proven that it is more likely than not that defendant unlawfully retaliated against him/her for his/her [insert alleged protected activity].


1This charge uses the pronoun it in referring to the defendant in recognition of the fact that the defendant will usually be the employer and thus will usually be an institutional entity.It is important to note that, as of the date of this Charge, it remains unsettled whether New Jersey recognizes the existence of individual liability under CEPA and conflicting case law supports both positions.CompareCokus v. Bristol Myers-Squibb Co., 362N.J. Super.245 (App. Div. 2003) andEcker v. Dana Transport Systems, Inc., 2006 WL 740468 (L. Div. 2006) (failing to recognize individual liability under CEPA),withMaw v. Advanced Clinical Communications, Inc., 359N.J. Super.420 (App. Div. 2003),revd on other grounds, 179N.J.439 (2004) andZelkina v. Orlioukova, 2009 WL 417282 (App. Div. 2009) (recognizing individual liability under CEPA).The Supreme Court has not addressed this issue.

[2]The trial court must be precise in [its] communications with the jury and must ensure that the factual evidence could support a basis for a CEPA claim.Battaglia v. United Parcel Serv., 214N.J.518, 559 (2013).Thus, [i]n instructing the jury on a CEPA claim, it is incumbent upon the court to identify the protected activity precisely and not through a broad and open-ended description in the jury charge.Id.at 561-62.

[3]The first element of jury instructions setting forth the elements of a CEPA claim in cases involving a licensed or certified health care professional should read as follows:Plaintiff must show that it is more likely than not that (1) he/she reasonably believed that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle]constituted improper quality of patient care.N.J.S.A.34:19-3.

[4]Dzwonar v. McDevitt, 177N.J.451, 462 (2003) (setting forth elements ofprima faciecase under CEPA).

[5]This portion of the charge dealing with theprima facieelements does not address the fourthprima facieelement of a causal connection between the protected activity and the retaliatory action because that is the ultimate issue that the jury will decide, and it is addressed below in the instruction to the jury regarding whether the whistle-blowing was a determinative factor in causing the retaliatory action.

[6]Id.at 462-64 (holding that CEPA does not require a plaintiff to show that a law, rule, regulation or clear mandate of public policy actually would be violated if all the facts he or she alleges are true [; i]nstead, a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred [and] the jury then must determine whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable).

[7]Id.at 463-64 (holding that the trial court must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct).

8When 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.Battaglia v. United Parcel Serv., 214N.J.518, 559-60 (2013).To that end, the trial courts description must provide the jury with the appropriate focus as a matter of law so as to allow the jury to test the CEPA claim against what plaintiff knew and reasonably believed, not upon what actually was or was not happening.Id.at 562.

[9]N.J.S.A.34:19-2(e).

[10]Green v. Jersey City Bd. of Ed., 177N.J.434, 448 (2003);Nardello v. Twp. of Voorhees, 337N.J. Super.428, 434-435 (App. Div. 2005);Beasley v. Passaic County, 377N.J. Super.585, 609 (App. Div. 2005).

[11]Estate of Roach v. TRW, Inc., 164N.J.598, 612 (2000) (holding that in [e]xamining whether a retaliatory motive existed, jurors may infer a causal connection based on the surrounding circumstances).

[12]Donofry v. Autotote Systems, Inc.350N.J. Super.276, 296 (App. Div. 2001) (holding that [p]laintiffs ultimate burden of proof is to prove by a preponderance of the evidence that his protected whistle-blowing activity was a determinativemotivating factor in defendants decision to [take adverse employment action against plaintiff] that it made a difference [:plaintiff need not prove that his whistle-blowing activity was the only factor in the decision to take adverse employment action]).

[13]Fleming v. Correctional Healthcare Solutions, Inc., 164N.J.90 (2000) (holding in CEPA case that the factfinders disbelief of the reasons put forward by the defendant may suffice to show intentional [retaliation] (quoting St. Marys Honor Center v. Hicks, 509U.S.502, 511, 113S.Ct.2742, 2749, 125L.Ed.2d 407 (1993)).


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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

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I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

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p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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