A federal court recently held that a cashier who was discharged one year after filing a workers’ compensation claim failed to state a claim under the New Jersey Law Against Discrimination (“LAD”) or the New Jersey Conscientious Employee Protection Act (“CEPA”), holding that filing a workers’ compensation claim is not considered protected activity under either statute. Davis v. SuperValu Inc., No. 13-414, 2013 U.S. Dist. LEXIS 56341 (D.N.J. Apr. 19, 2013).
Plaintiff, Tammy Davis, alleged she had been employed as a cashier at the Burlington Acme Market for over 20 years. Davis alleged that, one year after filing a workers’ compensation claim, she was terminated. Davis alleged that she was replaced by a younger person who received significantly lower compensation and benefits. Davis sued, asserting claims for retaliation for having filed a workers’ compensation claim in violation of LAD and CEPA, and common law wrongful discharge in violation of public policy (among others). The court granted the company’s motion to dismiss.
The court held, first, that the filing of a workers’ compensation claim is not protected activity under LAD because it is not in the nature of a whistleblowing activity. Second, the court held that the filing of a workers’ compensation claim is not protected activity under CEPA because it is not an activity in opposition to any allegedly unlawful company practice.
Third, the court held Davis’s claim for wrongful discharge in violation of public policy was preempted by LAD to the extent it was based on alleged age discrimination. The court reasoned the LAD provided the exclusive remedies for wrongful discharge because of unlawful discrimination. Finally, the court noted that, to the extent Davis’s wrongful discharge claim was based on alleged retaliation, the filing of a workers’ compensation claim is protected activity for the purpose of that claim. However, the court held the mere timing of the discharge—one year after Davis filed her workers’ compensation claim—was insufficient to state a claim for wrongful discharge. The court granted Davis leave to allege facts that could support a finding of unlawful retaliation.
Accordingly, this case cabins the remedies available to employees suing over their discharge. Under the court’s holding, LAD and CEPA do not support a cause of action based on a previous workers’ compensation claim filing. However, LAD does preempt a common law wrongful discharge claim to the extent the claim is based on alleged discrimination based on the employee’s protected characteristics.