Court Interprets LAD to Give Retaliation Claim to Co-Worker of a Litigant Who Allegedly Refused to Help With Investigation of Claims

By Kevin J. O'Connor*

In a case (link below) that is possibly going to be appealed further and/or to be the subject of a later decision at the trial level, the Appellate Division in Rios v. Meadowlands Hospital Medical Center, HUD-L-0142-17 issued an opinion on April 14, 2020 that could prove problematic for employers if not reversed.  The Court ruled that an employee who had no personal, contemporaneous knowledge of a co-worker’s claims of discrimination and took no affirmative acts to assist that co-worker, may bring a retaliation claim of his own based on a termination he claims is causally linked to his alleged refusal to lie as part of the employer’s defense of the claims and for his alleged refusal to bring a restraining order against that co-worker stemming from their inter-personal relations outside the workplace.

As someone who has been defending employers for almost a quarter of a century who have been accused of discrimination, I will say that these cases tend to come in waves. One employee’s claims of discrimination will often spawn copycat claims. Indeed, I’ve published multiple articles (all available on my profile page) on the “me too” phenomenon and the complicated evidentiary issues that that poses for employers.

The factual setup in the Rios case is as follows. Plaintiff Rios worked with co-worker Bailey. Bailey was terminated and later filed a sexual harassment case against their employer, of which Rios was completely unaware. Moreover, Rio had no knowledge that Bailey—a person with whom he had an inter-personal relationship while she worked for the same employer—even believed that she had been subjected to sexual harassment.

Plaintiff Rios alleges that, months after Bailey sued their employer, he was approached by a supervisor and told that he needed to be a “team player” and was expected to support the company in connection with Bailey’s lawsuit. He was allegedly told by his supervisor that he should consider getting a restraining order against Bailey over certain conduct that Rios had shared with his co-workers. He also alleges that he was encouraged to lie to attorneys who were defending the claims by Bailey, which Rios refused to do. The employer denies all of that.

Weeks after the meeting with outside counsel over the Bailey case, Plaintiff was terminated for performance issues. He later brought his retaliation claim, premised on his alleged “opposition” to unlawful practices against Bailey (ie., the failed effort to get Rios to lie, or to go for a restraining order).

The trial court granted the employer summary judgment, concluding that since Plaintiff Rios had no knowledge whatsoever of the basis for Bailey’s underlying claims sufficient for him to show an objectively reasonable basis for “opposing practices” that violated the LAD, he had no ability to get to trial on his retaliation claims. The trial court did not address the other grounds for dismissal, such as the fact that there was no causal link between any supposed opposition and his termination.

The Appellate Division, in a published decision, ruled that the trial court erred in granting summary judgment on that narrow issue, and remanded so that the lower court could address the balance of the arguments for dismissal made by the employer, but not acted on by the trial court.

Case Takeaway:

The trial court had ruled that since Rios had no knowledge to speak of concerning the underlying case by Bailey, he could not possibly establish an objectively reasonable, good faith belief in her underlying sexual harassment claims such that the acts that he claims to have taken were in “opposition” to unlawful activity by the employer. 

The Appellate Division ruled, however, that Rios need not prove any of that. Instead, the Court focused on his core allegation that he was retaliated against because he “opposed…acts forbidden under the” LAD, N.J.S.A. § 10:5-12(d). The Court is of the view that Rios can go to trial and try to prove that he was asked to engage in “unlawful employment practice[s]” in the form of making false statements to the attorneys for the employer about Bailey and in seeking a restraining order against her to support the case. 

Noteworthy is that the motion record was bereft of proof that the employer or Rios’ supervisory did any of these things, except for the testimony of Rios. But the cited section of the LAD provides that it is unlawful for an employer to do any of the following (which I have bracketed with numbers for discussion purposes):

“d. For any person to [1] take reprisals against any person because that person has opposed any practices or acts forbidden under this act or [2] because that person has sought legal advice regarding rights under this act, [3] shared relevant information with legal counsel, [4] shared information with a governmental entity, or [5] filed a complaint, testified or assisted in any proceeding under this act or [6] to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.” N.J.S.A. 10:5-12(d).

The Appellate Division appears to have been focused on item [1] and broadly stated that the LAD prohibited the employer from, in essence, asking the employee to support the defense of the Bailey case with favorable testimony because to do so constituted “retaliation” against Bailey—who was long gone from the workforce and actively in suit against the employer.  The Court made no finding that items [2] through [6] were even implicated.

This ruling seems vulnerable to challenge on further appeal, and problematic for employers. For instance, if there is a lawsuit against an employer, and there are six former co-workers who need to be interviewed by counsel, two of whom object to participating in an interview with counsel and tell the employer that they have nothing to offer that would help the employer, are those two employees protected from discipline or termination in the future? Or, is it possible this entire case has turned on the alleged request by the supervisor to Rios to embellish or fabricate his testimony (ie., suborning perjury).  It would appear that Rios has set up a situation where an employee merely needs to allege that he or she was asked to make false statements and refused, and was then disciplined or retaliated against.   

The Rios decision is certainly instructive on the dangers to an employer when dealing with workplace discrimination claims, and how paramount it is to ensure that supervisors limit their interactions with other employees about the existence of the claims and the investigation in general. Also paramount are workplace policies where employees acknowledge, in writing, their obligations to promptly report any activities they deem to be unlawful or unethical, such as what Mr. Rios claims he endured.

*Kevin O’Connor is a shareholder with Peckar & Abramson, P.C. His areas of concentration are EPLI and D&O defense; construction law; class action defense; partnership and corporate dissolutions; restrictive covenant and trade secret litigation. Kevin is a frequent lecturer on these topics and has published numerous articles in those areas.  Kevin received his Juris Doctor from Rutgers University School of Law, where he served as Editor-in-Chief of the Rutgers Law Review. The views expressed herein are not to be considered legal advice and represent the views of the author and not necessarily those of Peckar & Abramson, P.C.