If you work for New Jersey or one of its entities, you may be barred from pursuing a claim under the Americans with Disabilities Act (ADA) in state court against your employer, based upon jurisdictional grounds. At the same time, you may also be barred from pursuing a disability claim under New Jersey’s Law Against Discrimination (LAD) against your state employer if you also have a whistleblowing claim that you choose to pursue under New Jersey’s Conscientious Employee Protection Act (CEPA). That is because CEPA contains an election of remedies provision that requires a plaintiff to elect a remedy under either CEPA or the LAD. You may then be left without a remedy for your disability discrimination and/or failure to accommodate claim. That is what occurred to Police Officer Brian Royster in his action against the New Jersey State Police.
In the matter of Royster v. New Jersey State Police, Officer Royster brought claims in state court against the NJSP and his supervisor under the ADA (a federal law), as well as under New Jersey’s LAD and CEPA. Officer Royster alleged that the NJSP failed to timely promote him, in retaliation for his reporting that the Equal Employment Opportunity/Affirmative Action Unit, to which he was assigned, failed to timely investigate matters and that the NJSP generally disciplined African American troopers more severely than white troopers. This delay in promotion resulted in a reduced salary and pension for Officer Royster. Officer Royster also alleged that the NJSP failed to accommodate his medical condition of ulcerative colitis by assigning him to a position doing vehicle surveillance where he was without constant access to a restroom. At trial, Officer Royster’s counsel elected to waive plaintiff’s LAD claims, pursuant to the CEPA waiver clause contained in N.J.S.A. 34:19-8, and pursue his failure to accommodate claims under the ADA, instead.
Officer Royster prevailed at trial on his CEPA and ADA claims. On the CEPA claim, the jury awarded him $55,000 in lost wages, $305,000 in lost pension benefits, and $200,000 for mental anguish and emotional distress. The jury also awarded Officer Royster $500,000 for emotional distress on his ADA claim. The judge then added pre-judgment interest on the CEPA damages, and entered judgment in plaintiff’s favor in the amount of $895,548.12. On appeal, the Appellate Division dismissed plaintiff’s ADA claim based upon its finding that the Trial Court lacked subject matter jurisdiction to hear the ADA claim, based upon the doctrine of “sovereign immunity” applicable to New Jersey and its entities. That doctrine provides generally that states and their entities may not be sued in state court for violations of federal law. The Appellate Division concluded that NJSP was a state entity and thus had immunity from suit under the ADA in state court. In addition, the Appellate Division observed that subject matter jurisdiction was not waived by virtue of the NJSP having appeared and defended against the ADA claim in state court. Rather, the Appellate Division held that the only way that the NJSP could waive subject matter jurisdiction would have been to remove the case to federal court. Thus, because the NJSP had not sought removal to federal court, the Trial Court should have dismissed the ADA claim based upon lack of subject matter jurisdiction. Further, since plaintiff had elected to pursue his CEPA claim and voluntarily dismiss his LAD claim under CEPA’s election of remedies provision, he was left with no remedy for his failure to accommodate claim. To add insult to injury, the Appellate Division also held that the jury verdict on Officer Royster’s CEPA claim was “so fatally flawed that the judgment must be vacated and the matter remanded for a new trial on all issues related to plaintiff’s CEPA claim.”
Plaintiff sought certification for appeal of these and other issues in the New Jersey Supreme Court. The New Jersey Supreme Court agreed to consider only whether the New Jersey State Police, as a state entity, is entitled to immunity from Officer Royster’s failure to accommodate claim under ADA, and if so, whether the NJSP waived that immunity. The Supreme Court’s decision on these issues will likely have a major impact on litigation strategy for state employees who have claims of whistleblower retaliation and disability discrimination and/or failure to accommodate. Whether such employees should file in state or federal court, and which claims they should voluntarily dismiss pursuant to the CEPA waiver clause contained in N.J.S.A. 34:19-8, may be largely determined by the upcoming decision.
By Francine Foner, Esq. and Ty Hyderally, Esq.
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