Court Holds That An Employer Cannot Retaliate Against Employee for Filing Police Report
Employee Goes Ahead With Filing Police Report Against Employer’s Wishes
Recently, the Appellate Division found that an employee’s filing of a police report regarding a customer’s offensive touching constituted protected conduct under the New Jersey Law Against Discrimination (“LAD”) and could serve as the basis for a retaliation claim against an employer.
In Prager v. Joyce Honda, Inc., a receptionist of a car dealership complained to her employer that a customer had touched her in an offensive manner. Her managers responded by asking her if she wanted to press charges against the customer but they attempted to discourage her from doing so because the individual was a valued customer. Several days later, the receptionist pressed charges to which the customer pled guilty.
Following the receptionist’s filing of a police report, the dealership issued her two written warnings for attendance incidents, one of which had occurred before she had filed the police report. She objected to the warnings and explained that she believed they were issued in retaliation for her having pressed charges against the customer. Although the dealership offered to rescind the warnings and move forward with a fresh start, the receptionist chose to resign because she no longer trusted the dealership’s management. She filed a lawsuit against the dealership alleging retaliation and constructive discharge under the LAD. At trial, the court dismissed her claims on the basis that the LAD only applied to an employer’s conduct, not that of a customer, and that the filing of a police report could not serve as the basis for a retaliation claim.
The Appellate Division agreed with the trial court’s dismissal of the receptionist’s claims but disagreed with its reasons for doing so. First, the Appellate Division found that the filing of a police report regarding offensive touching or harassment is “protected activity” under the LAD. Thus, an employer may not retaliate against an employee who engages in such a practice. Declining to address the issue of whether a customer’s conduct could form the basis for a claim under the LAD, the Appellate Division then found that the receptionist could not prevail on her constructive discharge claim because her reasons for resigning were not “so intolerable that a reasonable person would be forced to resign rather than continue to endure.” Furthermore, since her employer had offered to rescind the written warnings plaintiff did not do what was necessary and reasonable to remain employed. Third, the Appellate Division explained that plaintiff’s receipt of two written warnings, in this context, did not rise to the level of actionable harm under the LAD. However, the receipt of warnings could, in certain instances, be sufficient.
The key takeaways here are that an employer may not take retaliatory action against an employee who files a police report regarding discrimination or harassment in the workplace. The filing of such a police report is equivalent to the employee filing a lawsuit or charge of discrimination with the Equal Employment Opportunity Commission or the NJ Division on Civil Rights.
Second, this case reinforces the fact that it is extremely difficult to prevail on a constructive discharge claim. Resigning should always be a last resort and should be reserved for those instances where the employer’s conduct or the workplace has become “so intolerable” and egregious that resignation is the only option. In most cases, the receipt of warnings, no matter how unfair or baseless, will not justify resignation.
If you feel that you have been the victim of retaliation for having complained about discrimination or harassment in the workplace, contact the Law Offices of Damian Christian Shammas, LLC to discuss your situation.