Court Finds That Employee States Claim for Retaliatory Discharge

Gregory S. Schaer, a Monmouth County based New Jersey Employment Attorney located in Manalapan, represented the employee in a lawsuit against their employer alleging claims of retaliation.

In Romano v. Brown and Williamson Corp. , 284 N.J. Super. 543 (1995), a former male employee alleged that his employer terminated him in retaliation for having reported that a fellow female employee was being sexually harassed. During a business conference, the male employee witnessed an incident in which a supervisor allegedly harassed a fellow female employee. The female employee filed a complaint with the Company which was investigated. The female employee was later fired allegedly due to job performance and filed a lawsuit against the Company alleging several incidents of sexual harassment including the one that plaintiff had witnessed.

The male employee was interviewed on behalf of his employer on several occasions while the suit was pending and he was a critical witness for the Company. Three (3) weeks prior to the trial, outside defense trial counsel interviewed the employee and discovered certain discrepancies between the employee’s statements to him and what the Company’s attorney had previously indicated the employee would say. Thereafter, the employee was accused of changing his testimony to an account of the incident that was more favorable to the female employee.

The employee maintained that his version of the story had never changed. The Company lawyer, however, asserted that the employee had always given an account that limited the severity of the incident. The Company claimed that the employee’s change in statement ultimately motivated the Company to settle the female employee’s lawsuit.

The female employee and the male employee, who had previously been friends while employed by defendants, later married but never disclosed this relationship to his employer. After learning of the relationship and marriage, the employer conducted an investigation and subsequently terminated the male employee after twenty-eight (28) years of service.

The Company claimed that the employee’s failure to disclose his relationship with the female employee breached his duties as an employee to the Company, constituted a conflict of interest and violated the Company’s standards of business conduct. The employee asserted a claim alleging retaliatory termination in violation of the New Jersey Law Against Discrimination. The trial court found that the employee failed to establish a prima facie case of retaliation by failing to demonstrate a causal connection between the protected activity and the retaliation. The Appellate Court reversed and reinstated the claim for trial.

The court held that the male employee was engaged in a protected activity by assisting the female employee as a witness in her lawsuit for sexual harassment. The court held that it was further clear that the employee was subjected to an adverse action as he was fired. The court found that the trial judge improperly found that the employee had not demonstrated evidence of a sufficient causal connection between his complaint and his termination based upon the fact that ten (10) years had passed between the time of the sexual harassment incident, when the Company knew that the employee was a witness, and his termination.

The court on appeal held that causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive. The court found that a sophisticated employer, such as the defendant, would not likely immediately retaliate. Rather, the court found that a jury may find that after the employee’s testimony became more favorable to the female employee, the employer merely waited for an opportunity to terminate the employee to present itself in the form of their knowledge of the employee’s marriage to the female employee.

The court held that even if the employee had changed his version of the story, a jury might find that he had only then gained strength to come forward with the truth for the first time. The court was satisfied that a reasonable jury could find that the employee was terminated because he honestly supported the female employee’s version of the incident or otherwise failed to trivialize its importance.

To speak with an experienced New Jersey Employment Law Attorney, contact the Law Offices of Gregory S. Schaer, LLC, conveniently located in Monmouth County, New Jersey.

• Romano v. Brown and Williamson Tobacco Corp., 284 N.J. Super. 543 (App. Div. 1995)