PER CURIAM.
On remand from the Supreme Court,
Before discussing the facts adduced at trial, and before addressing the issues remanded by the Court, we pause to set forth the procedural framework in which the remand has occurred. The jury awarded plaintiff the sums of $724,000 in compensatory damages and $500,000 in punitive damages against DuPont, based upon the jury's finding that defendant violated plaintiff's rights under the Conscientious Employee Protection Act (CEPA),
The Supreme Court granted plaintiff's petition for certification, limited to the issue of whether recovery under CEPA for economic losses associated with back and front pay requires proof of actual or constructive discharge.
DuPont Chambers Works, located in Deepwater, was opened nearly ninety years ago. For the past fifty years, DuPont has produced the chemical phosgene there, which DuPont uses in the manufacture of two highly-specialized fibers for which it holds patents. Phosgene is a highly toxic gas which, in sufficient quantities, can cause death.
For that reason, DuPont employs a number of techniques to ensure the safety of its employees and the surrounding community from the potentially harmful effects of leaks from the phosgene reactor, which consists of 550 tubes. If any phosgene is released from any of the 550 tubes into the reactor's cooling system, DuPont uses a solution of sodium hydroxide in a "caustic scrubber" to convert the phosgene into water and harmless table salts, which are then discharged to the atmosphere.
Because the scrubber cannot perform its vital safety function unless sufficient levels of the caustic solution are maintained within the reactor, DuPont's chemical plant operators are responsible for taking samples, closely monitoring the caustic solution levels, and adding more solution whenever needed. When the additional caustic solution is added, the operator is obliged to continuously recheck the levels, and to document his or her findings in writing, until the desired level is attained. Unless a sufficient quantity of caustic solution is added to compensate for any release of phosgene into the reactor, toxic phosgene will be released into the air.
Plaintiff's employment at DuPont Chambers Works began in 1973, and ended with his psychiatric disability retirement in 2007. Until 2002, plaintiff's employment relationship with DuPont was free from any friction or complaints and, in fact, plaintiff earned several commendations over the years.
In December 2002, plaintiff's harmonious relationship with DuPont began to unravel. While waiting in an unlit area of the roadway at the plant's gates for DuPont's security guards to search his vehicle after his night shift was completed, plaintiff was forced to remain in the roadway for almost forty-five minutes, where he was almost struck by a vehicle, while the guard verified that plaintiff owned the computer found in his car. Plaintiff reported the incident to his supervisor, Carissa Hirt.
Plaintiff also complained the next day to manager Paul Kaiser about the lack of proper lighting during the gate search and the absence of a safe place for his car to pull over. According to Mary Ann Hayes, a human resources manager, after September 11, 2001, DuPont became more active in implementing personal searches. At Hayes's direction, Hirt told plaintiff that DuPont was investigating the security guards' complaint that he threatened them with violence.
On January 2, 2003, plaintiff and Donelson anonymously filed a safety complaint with the United States Department of Labor, Occupational Safety and Health Administration ("OSHA"), alleging safety concerns about inbound and outbound vehicle inspections by DuPont's security guards. OSHA forwarded a copy of the complaint to Hayes, who then forwarded it to other supervisors at DuPont. Based on reports from colleagues in whom plaintiff had confided, Hayes learned that plaintiff was the person who had filed the anonymous OSHA complaint.
When plaintiff's supervisors discussed among themselves the complaint plaintiff had filed with OSHA, their correspondence assumed a distinctly retaliatory tone. Kaiser's January 4, 2003 email entitled "OSHA Complaint," sent to Hayes and others in senior management, noted that "[plaintiff] has gone public with his issue," and described plaintiff as "a very, very angry man who feels disrespected and harassed when the security guards pull him over time and time again for a search." Kaiser warned them that plaintiff is "so angry that he will take any measures to have this stopped." Kaiser also wrote that plaintiff was threatening to write to OSHA "about a safety issue on top of the chlorine railcar in the Phosgene area," stating that this complaint might be legitimate. Plaintiff, who did not learn of the emails until years later, denied at trial ever threatening anyone, losing control of himself at the gate, or making such statements to Kaiser.
Management's criticism of plaintiff's safety complaints escalated two days later, when Hayes proposed that plaintiff be required to submit to a fitness for duty evaluation. In her January 5, 2003 memorandum sent to Kaiser, with a copy to Dennis Malloy, a human resources manager, Hayes observed that "ever[y] interaction I have had with [plaintiff] he has been edgy." She told Kaiser that "[i]f at any time when you are having these discussions with [plaintiff] you start to question his fitness for duty call Denny or myself so we can work with you on where to go." Plaintiff, however, had no recollection of speaking with Hayes. The same day, Hayes also wrote to Arthur Griffin and John Strait, who were plant managers, explaining that plaintiff was "starting to sound like a loose cannon" and "we don't need him losing it the next time and maybe getting physical with someone."
On April 1, 2003, DuPont appointed Kaiser as supervisor of the phosgene area, which resulted in his becoming plaintiff's and Donelson's supervisor. Almost immediately, Kaiser imposed new reporting requirements on plaintiff and Donelson, which were not imposed on others, concerning their use of vacation, sick time, and personal leave days. In May 2003, Kaiser told Donelson, who had a heart condition, that he was a "broken down old man" who cost the company money.
Kaiser's hostility to plaintiff and Donelson escalated. Four months later, in September 2003, Kaiser stormed into the phosgene control room and, according to plaintiff, angrily ripped the alarm off the wall, ordered plaintiff to remove his company-issued sunglasses, told him that he was out of compliance for failing to complete training, and accused him of missing some safety meetings. Plaintiff testified that he was not obligated to complete the training for several more months, and that the company had in the past, always excused him from attending some of the safety meetings in the summer.
On October 2, 2003, plaintiff met with a supervisor, Robin Spangler, to express concern about Donelson's health and to urge her to ask Kaiser to "back off," to which Spangler replied that Kaiser was only "doing as directed." Two hours later, after meeting with one of her colleagues, Spangler asked plaintiff if he wished to consult a counselor in DuPont's employee assistance program (EAP). Plaintiff considered her suggestion to be inappropriate.
In October 2003, plaintiff made a second safety-related complaint. On October 6, 2003, while operating the phosgene generator, plaintiff and coworker Bruce Danner noticed that the generator's cooling tubes were leaking. Plaintiff explained at trial that the phosgene had escaped through holes in corroded cooling tubes. To maintain proper acidity and prevent the phosgene's release into the atmosphere, Danner was forced to keep "add[ing] caustic to the water system" throughout the night. Even so, as plaintiff wrote in his phosgene shift report, "the unit, the water system, is producing acidic residue faster than we can make the adjustments."
On October 13, 2003, plaintiff described the October 6 incident in a weekly survey questionnaire. He wrote:
In his survey response, plaintiff also criticized management's failure to credit the expertise gained by the operators through their long-time experience, and management's refusal to listen to the operators' concerns and ideas. He accused DuPont of failing to abide by "the safety regulations of our site 100% of the time." For example, following the emergency shutdown, he claimed supervisors asked operators to obtain and carry the caustic solution in buckets and pour it into a system designed for water, jeopardizing the integrity of the gaskets and metal parts. Plaintiff further complained in that same October 13, 2003 survey response that management had reclassified the phosgene area as a "general purpose area," and allowed "welding/burning/grinding to take place [with] flammable gases nearby." He also objected to workers being required to stand atop the reactor "without scaffolding and railings," and criticized the practice of conducting pressure tests on an empty vessel "with no regards [sic] to safety" or to the dangers of explosions or asphyxiation by nitrogen vapors.
Kaiser subsequently met with plaintiff to discuss the safety concerns plaintiff had voiced in his survey questionnaire. Plaintiff, however, was not sure if Kaiser understood all the technical terms, as Kaiser had only been a supervisor for a few months and admittedly was not "an operations person." Finding Kaiser's responses unacceptable, plaintiff requested the opportunity to meet with DuPont engineers and supervisors.
In an email to colleagues dated October 18, 2003, Kaiser described his meeting with plaintiff, advising them that plaintiff had complained about unsafe conditions that might "get him killed" and had threatened to call OSHA. The next day, after seeing plaintiff in the control room, Kaiser described plaintiff to colleagues as looking like a man "about to explode." Kaiser worried that plaintiff would allege retaliation if he were to be sent for a fitness evaluation. Plaintiff, who denied making any threats or becoming agitated, described his meeting with Kaiser as "very congenial."
On October 22, 2003, plaintiff sent an email to Kaiser and another manager, requesting clarification of certain rules in the DuPont manual entitled "The Phosgene/Chlorine Guardian Committee Rules/Standards." In his email, plaintiff proposed a technique to reduce the risk of corrosion caused when tube failures leaked phosgene into the reactor. He also expressed concern about the dumping of phosgene-contaminated water into a sump, an open area for rain water, which he said could lead to hazardous waste being released into the atmosphere. Plaintiff ended his email by stating, "let's not forget the Bhopal disaster[.]"
After receiving plaintiff's October 22, 2003 email voicing heightened safety concerns, Kaiser wrote to senior managers, "we are tired of dealing with [plaintiff's phosgene concerns]," adding that plaintiff had threatened to "go to OSHA." Plaintiff met for three hours on October 30 with senior managers to discuss the issues he had raised in his October 22 email. During the meeting, plaintiff objected to various safety violations, observing that corrosion of the reactor's tubing, and the resulting damage to the scrubber system, had created a grave risk of phosgene being released into the atmosphere.
Six weeks later, Kaiser ordered Donelson, who suffered from a severe heart condition, to haul fifty-gallon buckets of salt and spread the salt on the frozen ground. After Donelson was finished, Kaiser heatedly berated Donelson for not obeying his order quickly enough, and sent a memo to the human resources department and senior managers a few days later complaining about Donelson. In his December 7, 2003 memo, Kaiser commented that Donelson and Seddon "are not our best performers," and observed that "the night shift was very upset about the amount of work" that Donelson and plaintiff were doing. At trial, plaintiff testified that Kaiser's December 7, 2003 accusations were blatantly false.
In addition to criticizing plaintiff's productivity, subjecting him to vacation reporting requirements not imposed on other operators, and scheming to subject plaintiff to a fitness for duty evaluation, Kaiser imposed a new set of obligations on plaintiff that could be deemed retaliatory. In particular, on December 23, 2003, Kaiser advised plaintiff of "some attendance accusations made against him," and told him not to leave the site, "except for lunch," without informing supervisors. Kaiser also ordered plaintiff to tell him when and where he was going to lunch, a rule not imposed on other operators.
On January 11, 2004, Kaiser wrote another email to senior management complaining that plaintiff and Donelson did "not do a very good job keeping their time card[s] straight," that they were "very high maintenance," and that someone should "keep a watchful eye out" while he, Kaiser, was on vacation the following week. Plaintiff denied that any other shift supervisors had ever made similar accusations.
On January 14, 2004, Donelson began a six-month disability leave, during which he was treated for "major depression." Subsequently, he was terminated.
Meanwhile, on March 2, 2004, Keith Oliver, a chemical plant operator, informed Hirt that the previous day an unknown operator had failed to withdraw a sample of the caustic solution from the phosgene scrubber. Hirt spoke with Oliver, reviewed other sample results in the log, and calculated how much caustic solution should have been recorded.
In an email to Kaiser and other shift leaders dated March 2, 2004, Hirt concluded that the caustic concentration results were "way off," and voiced a suspicion that the caustic solution sample was never drawn or analyzed, and that the documentation had been falsified. She asserted that an experienced operator would have known, after venting down the entire phosgene reactor, that the 11.02% concentration of caustic solution was incorrect, and would have drawn another sample. In her March 2 email to Kaiser and three other managers, she suggested that the operator in question be subjected to discipline.
The next day, Hirt notified other managers of her conclusion that it was plaintiff who had "failed to take a required sample," "falsified documentation," "entered `made up' information" on the log sheet, and "put [DuPont] at risk for an environmental/safety incident." On March 16, 2004, DuPont imposed disciplinary action against plaintiff, issuing him a verbal warning.
Plaintiff testified that this was his first discipline at DuPont, and he was devastated. He maintained at trial that he took the sample, entered the results in the computer, and did not falsify any data. He claimed the sample results were within specifications and, in his view, the samples taken by the operators on the following morning shift were below the normal range. He also maintained that company protocols did not require him to take more than one sample per shift. Spangler acknowledged on cross-examination that plaintiff's reading was within the normal range.
On March 17, 2004, the day after he received the verbal warning, plaintiff called DuPont's corporate harassment hotline to complain that he was being harassed for reporting safety issues to OSHA, explaining that he and Donelson were the only two operators who were required to report their whereabouts to supervisors, that he was forced to call Kaiser each time he left for lunch to report where he was going, that no supervisor had ever investigated his allegations of a hostile work environment, and that he wanted Kaiser to "back off." Hayes assigned two DuPont employees who were not employed at Chambers Works to investigate plaintiff's harassment complaint. In a written report, the two investigators found plaintiff's complaints of harassment, retaliation and mistreatment by Kaiser meritless, and recommended that DuPont reassign plaintiff to another building or shift.
On April 2, 2004, DuPont ordered plaintiff to report to the medical building to undergo a fitness for duty evaluation. Hayes notified EAP staff that plaintiff was "on his way down to medical," warning them that plaintiff had filed a harassment complaint, which management found to be meritless, and that plaintiff might be upset. She also told EAP that plaintiff made colleagues feel "uncomfortable" and had assumed a "threatening, alarming and intimidating manner."
After assessing plaintiff, EAP staff recommended that plaintiff be placed on a paid disability leave, and be referred to outside clinicians for third-party evaluation. Plaintiff was told by EAP to stay home from work and not return until instructed to do so.
Plaintiff believed he was being sent home for the weekend to avoid any interactions with Kaiser, and expected EAP to call him the following Monday "with a path forward." He remained at home on suspension for "[s]even weeks and six days," or until May 28, 2004, during which time he received his base salary.
The two independent psychologists and the one independent psychiatrist to whom plaintiff had been referred by EAP found none of the explosive behavior, threatening demeanor or angry bearing that DuPont managers had been documenting since December 2002. Neither of the psychologists found any evidence of anti-social tendencies; both considered it unlikely plaintiff would resort to physical violence. The psychiatrist opined that although plaintiff was suffering from depression, and from acute stress caused by changes in his work environment, plaintiff was fit to return to work. On May 24, 2004, Hirt notified plaintiff that he had been cleared to return to work, although she advised him that Kaiser's verbal warning and negative performance evaluation would remain in his file, that he would be placed on probation, and that he would be subject to performance evaluations every three months.
When plaintiff returned to work on May 28, 2004, DuPont assigned him to a shift that offered him almost no opportunity to earn overtime pay, causing him to lose "[a]round [$]30,000 a year" in overtime, although DuPont insisted that plaintiff's overtime opportunity remained unchanged.
Plaintiff testified that his two-month suspension made him feel "[s]ad, hopeless," as if his "life was at an end." He felt "kicked to the curb," "worthless," "[b]eaten," and "embarrassed," and wondered if his co-workers considered him "crazy." He could not eat and had trouble sleeping. After returning to work in June 2004, plaintiff worried about new allegations and experienced anxiety "every day" as he approached the entrance gate. In February 2005, while still working for DuPont, plaintiff filed suit against DuPont and Kaiser.
In September 2006, DuPont managers notified plaintiff that he would be working alone during his twelve-hour shifts. Plaintiff described working alone as extremely unpleasant, and felt management was just waiting for him "to make some kind of little stupid mistake and then they're going to get me." One month later, plaintiff began treatment with Louise Cressman-Watral, a psychotherapist, whom he continued to see through the time of trial. She diagnosed him as suffering from "a major depressive disorder," which she attributed primarily to plaintiff's treatment at the hands of DuPont managers. She opined that a full recovery was unlikely. Plaintiff also saw a psychiatrist, who prescribed sleep medication and an anti-depressant.
Charles D. Semel, M.D., plaintiff's psychiatric expert, examined plaintiff on November 13, 2006, concluding that he suffered from a stress-based "psychiatric condition of major depression." Observing that plaintiff had no history of mental illness and had received commendations and performed well at DuPont for three decades, Semel concluded, to a reasonable degree of medical certainty, that plaintiff's psychiatric disorder was causally related to his employment at DuPont. He opined that plaintiff's assignment to an isolated work environment had increased his stress and anxiety, and that plaintiff's condition was "slowly worsening" and was permanent.
In January 2007, plaintiff began a six-month leave of absence. He retired on December 31, 2007, with a disability pension from DuPont. At the time of trial, plaintiff testified that his retirement pension was paying him $50,000 to $60,000 less per year than he would have earned in salary and overtime had he remained employed. Although he believed DuPont "ruined" him, plaintiff testified that he would do the same thing again if he saw the phosgene reactor in danger of exploding, to protect the safety of his coworkers and the community.
The jury found that DuPont retaliated against plaintiff in violation of CEPA, awarding him $724,000 for his economic losses, and nothing for his "pain and suffering." The jury awarded plaintiff an additional $500,000 in punitive damages. As we have noted, the jury no caused Donelson, who was represented by the same law firm as plaintiff.
On April 11, 2008, the judge denied DuPont's motion for judgment notwithstanding the verdict (JNOV) and for remittitur. The judge also slashed plaintiff's attorney fee request by fifty percent, reasoning that because the jury had awarded Donelson nothing, plaintiff's counsel should not be compensated for the work performed on Donelson's behalf.
We turn first to DuPont's claim that the judge erred by denying its motion for JNOV, thereby refusing to strike the award of punitive damages. The company argues that its senior managers had no evil intent, and followed established procedures and protocols before issuing the verbal warning and ordering the fitness for duty evaluation. DuPont argues that plaintiff did not suffer any loss of pay, that after returning to DuPont he worked another two-and-a-half years before retiring, and that punitive damages were a manifest denial of justice due to plaintiff's failure to demonstrate any viable economic or compensatory damages.
A trial judge's refusal to vacate an award of punitive damages is reviewed for an abuse of discretion.
Moreover, when deciding a motion for JNOV pursuant to
To place into proper context defendant's challenge to the punitive damages award, we pause briefly to set forth the requirements of a CEPA cause of action. CEPA creates a statutory cause of action for retaliatory discharge.
CEPA defines "retaliatory action" as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment."
On the issue of punitive damages, DuPont concedes that "some members of management" who fall within the definition of "upper level," were "involved in the events that plaintiff challenges as retaliatory," thereby satisfying the second prong of
When viewed in the light most favorable to plaintiff,
Plaintiff's April 2, 2004 suspension occurred approximately one year and three months after plaintiff filed the OSHA complaint on January 2, 2003, six months after he filed his October 2003 survey response documenting the malfunction of the phosgene reactor, and two weeks after he called DuPont's harassment hotline. Additionally, three independent clinicians found the suspension to be unjustified and opined that plaintiff posed no risk of violence. DuPont's retaliatory conduct continued even after DuPont permitted plaintiff to return to work because the company forced him to work a one-man shift, thereby exacerbating his feelings of despair and isolation. Thus, the circumstances surrounding the adverse employment actions, including temporal proximity to the protected conduct, and DuPont's awareness of plaintiff's disclosures about the grave safety risks posed by the plant's phosgene reactor, amply support the jury's finding that DuPont's retaliatory actions against plaintiff were "especially egregious."
Contrary to DuPont's assertions, the record contains sufficient evidence enabling a reasonable fact-finder to conclude that Kaiser and other upper level managers engaged in not one, but instead a pattern of retaliatory actions that became increasingly mean-spirited and that escalated in their intensity and impact. A reasonable jury could likewise conclude that DuPont's reprisals against plaintiff were "especially egregious," both because of the odious form of the reprisals and the catastrophic events plaintiff's warnings were designed to avoid. Having carefully considered DuPont's claims in light of the record and applicable law, we reject DuPont's challenge to the judge's refusal to vacate the punitive damages award, and affirm the order under review.
We turn to plaintiff's cross-appeal, in which he contends the judge erred when he reduced the amount plaintiff sought to recover for an attorney's fee by fifty percent. Plaintiff argues that his attorney represented Donelson as a co-plaintiff, and that his CEPA claim was tightly intertwined with Donelson's claims under CEPA and the LAD, as the claims relied on the same facts, and he and Donelson corroborated each other's testimony. Therefore, plaintiff asserts that even if Donelson had not been a plaintiff, and had been merely a witness, his attorney would have spent virtually the same amount of time and effort on Donelson's testimony as he did with Donelson as a plaintiff. He therefore argues that the court abused its discretion by imposing a fifty percent lodestar reduction of his attorneys' fee award.
After reviewing plaintiff's fee application, the judge concluded that Donelson's claims were based on different facts, and "were not so intertwined with the plaintiff's claim as to permit an award of fees to plaintiff for the work on the Donelson claims." Because plaintiff's attorneys were not able to adequately allocate their work between the two plaintiffs, the judge held that the calculation of the overall fee should be accomplished by applying a percentage reduction, rather than by performing a line-by-line review of the time spent. The judge determined that a line-by-line review was impossible because, with few exceptions, there were insufficient facts to relate any particular item to Donelson or to plaintiff. The judge concluded that a fifty percent reduction was appropriate "based on the significant nature of the work required to unsuccessfully prosecute the Donelson claims."
Appellate review of a trial court's fee determination is deferential.
To establish a reasonable counsel fee, the trial court must first calculate the lodestar amount, "the number of hours reasonably expended multiplied by a reasonable hourly rate."
After the court determines the lodestar, it may consider a reduction if the plaintiff achieved only partial or limited success in relation to the relief sought.
In such cases, the court must determine whether the expenditure of the attorney's time on the entire litigation was reasonable in relation to the actual relief obtained and, if not, proportionately reduce the award.
Thus, a court may not reduce a fee award simply because the plaintiff did not prevail on every claim.
Here, although the judge was entitled to take into account the jury's rejection of all of co-plaintiff Donelson's claims,
It bears repeating that DuPont's phosgene reactor presented a grave risk of releasing toxic gas, and of harming surrounding residents, and when plaintiff blew the whistle on this potential catastrophe, DuPont retaliated against him in a manner that was "especially egregious." As
Affirmed on defendant's appeal; reversed and remanded on plaintiff's cross-appeal.
