CEPA Plaintiff Not Entitled to Front and Back Pay Unless Actually or Constructively Discharged

Donelson v. DuPont Chambers Works, 2010 WL 624024 (App. Div., February 24, 2010) – The plaintiff, a former plant operator, complained to his employer and to the Occupational Safety and Health Administration about safety violations on the premises. His employer allegedly retaliated against him by restricting his vacation time and making false accusations against him. The plaintiff filed suit under the Conscientious Employee Protection Act (CEPA) but continued to work as he became increasingly upset.  He ultimately went on disability leave and then retired.

The Appellate Division held that the plaintiff was not entitled to either front or back pay because he did not allege and prove that he was either terminated or constructively discharged. The court found that CEPA should be construed the same as the LAD, which has long barred recovery of economic damages due to cessation of employment where an actual or constructive discharge did not occur.